in Re Commitment of Jason Franz Schoenfeld

• Court: Court of Appeals of Texas
• Decided: September 4, 2014
• Docket: 09-13-00320-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00320-CV ____________________

IN RE COMMITMENT OF JASON FRANZ SCHOENFELD

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-10-10526 CV ________________________________________________________ _____________

MEMORANDUM OPINION

Jason Franz Schoenfeld appeals from an order of commitment, rendered

following a trial in which the jury found Schoenfeld to be a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2013) (SVP statute). In one appellate issue, Schoenfeld contends that he was

denied the assistance of counsel at a post-petition psychiatric examination, an

examination conducted by the State’s expert. Because Schoenfeld was not entitled

to have counsel present when being examined by the State’s expert, a physician,

we affirm the trial court’s judgment.

1 In October 2012 the State filed a petition alleging that Schoenfeld is a

sexually violent predator and seeking his civil commitment. Schoenfeld then asked

the trial court to appoint counsel to represent him, and the trial court appointed an

attorney with the office of State Counsel for Offenders to do so. Schoenfeld’s

attorney filed an original answer, and the State filed a motion asking that the trial

court require Schoenfeld to undergo an examination by an expert. By order, the

trial court authorized the State’s expert to examine Schoenfeld in a manner

“[c]onsistent with Texas Health and Safety Code § 841 specifications[.]” See id. §

841.061(c), (f) (West 2010). On the same day that the trial court ordered the

examination, Schoenfeld’s attorney filed a document that asserts that Schoenfeld

had a right to have counsel present during the examination. Subsequently, the trial

court signed an order denying Schoenfeld’s request to have counsel present during

the examination. The record shows that in December 2012, the State’s expert, Dr.

Sheri Gaines, examined Schoenfeld, as had been authorized by the trial court’s

order. During Schoenfeld’s trial, she testified about the examination and the role

that it played in her risk assessment and evaluation.

In a series of cases decided after Schoenfeld filed his brief, we have rejected

the same claims that Schoenfeld raises in his sole issue. For example, in In re

Commitment of Smith, we observed that “neither the SVP statute nor the

2 Fourteenth Amendment require that counsel be present during a psychiatrist’s post-

petition examination.” 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet.

denied); see In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL

2931852, at *4 (Tex. App.—Beaumont June 26, 2014, no pet. h.) (mem. op); In re

Commitment of Cardenas, No. 09-13-00484-CV, 2014 WL 2616972, at *4 (Tex.

App.—Beaumont June 12, 2014, no pet. h.) (mem. op.); In re Commitment of

Muzzy, No. 09-13-00496-CV, 2014 WL 1778254, at *1 (Tex. App.—Beaumont

May 1, 2014, pet. denied) (mem. op.); In re Commitment of Speed, No. 09-13-

00488-CV, 2014 WL 1663361, at *1 (Tex. App.—Beaumont Apr. 24, 2014, pet.

filed) (mem. op.); In re Commitment of Lemmons, 09-13-00346-CV, 2014 WL

1400671, at *1 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.); see

also In re Commitment of Letkiewicz, No. 01-13-00919-CV, 2014 WL 2809819, at

*11 n.4 (Tex. App.—Houston [1st Dist.] June 19, 2014, no pet. h.) (mem. op.).

Schoenfeld argues that the examination authorized by section 841.061(c) of

the Texas Health and Safety Code is a “‘stage’” of the proceeding that occurs after

the right to counsel attaches under the provisions of section 841.144(a). See Tex.

Health & Safety Code Ann. §§ 841.061(c), 841.144(a) (West 2010). However, in a

reply brief that Schoenfeld filed in his appeal, he concedes that “[t]he assistance of

3 counsel during the adversarial mental health evaluation does not necessitate the

actual physical presence of counsel in the interview room.”

In this case, the record shows that the trial court appointed counsel to

represent Schoenfeld well before the examination occurred. In his brief,

Schoenfeld does not argue that the trial court’s ruling prevented counsel from

providing adequate advice or from protecting Schoenfeld’s rights. See Smith, 422

S.W.3d at 805. Schoenfeld and Dr. Gaines were both deposed before trial, and had

there been issues related to Dr. Gaines’s examination, the parties could have

developed them then. Additionally, Schoenfeld’s brief does not explain why any

concerns about the information that Dr. Gaines obtained when she examined

Schoenfeld could not adequately be addressed in motions or objections that he

filed either before or during trial. See id. at 806-07. The record does not support

Schoenfeld’s claim that he was deprived of the assistance of counsel. We overrule

Schoenfeld’s sole issue and affirm the trial court’s judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on April 30, 2014 Opinion Delivered September 4, 2014

Before McKeithen, C.J., Kreger and Horton, JJ. 4