In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00236-CV ____________________
IN RE COMMITMENT OF JOHN EARL ALEXANDER _______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-09-10035 CV ________________________________________________________ _____________
MEMORANDUM OPINION
The State filed a petition seeking the involuntary civil commitment of John
Earl Alexander as a sexually violent predator. See Tex. Health & Safety Code Ann.
§§ 841.001-.151 (West 2010 & Supp. 2012). A jury found beyond a reasonable
doubt that Alexander is a sexually violent predator. See id. § 841.003 (West 2010).
The trial court signed an order of commitment, and Alexander filed this appeal
from the final judgment. The issues raised on appeal present no reversible error.
We affirm the trial court’s judgment.
1 THE STATUTE
The State was required to prove beyond a reasonable doubt that Alexander is
a sexually violent predator. See id. § 841.062(a) (West 2010). The statute defines
“sexually violent predator” as a person who “(1) is a repeat sexually violent
offender; and (2) suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” Id. § 841.003(a). A
“behavioral abnormality” is a “congenital or acquired condition that, by affecting a
person’s emotional or volitional capacity, predisposes the person to commit a
sexually violent offense, to the extent that the person becomes a menace to the
health and safety of another person.” Id. § 841.002(2) (West Supp. 2012).
CONSTITUTIONAL CHALLENGE
In his first issue, Alexander argues the Texas Supreme Court’s opinion in In
re Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012), cert. filed
(Apr. 8, 2013)(No. 12-9719), has the effect of eliminating the requirement of a
mental illness for civil commitment under the SVP statute. Alexander argues the
statute is therefore facially unconstitutional. As this Court recently stated in In re
Commitment of Anderson, “We do not read the Bohannan opinion as eliminating a
statutory requirement, or as altering the proof required under the statute to find that
a person is a sexually violent predator.” In re Commitment of Anderson, 392
2 S.W.3d 878, 886 (Tex. App.—Beaumont 2013, pet. denied). Issue one is
overruled.
RULING ON MOTION TO QUASH
In his second issue, Alexander contends the trial court erred by denying
Alexander’s motion to depose Dr. Lisa Clayton, the State’s expert. Alexander
served a notice to depose Clayton and the State filed a motion to quash the
deposition. After a hearing, the trial court granted the State’s motion to quash.
Alexander maintains that the trial court should have allowed the deposition
because Brady v. Maryland’s rule requiring disclosure of exculpatory evidence in
criminal cases should be extended to SVP civil commitment cases. See Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
We review a trial court’s ruling on a motion to quash a deposition under an
abuse-of-discretion standard. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d
434, 445 (Tex. 2007); Salazar v. Coastal Corp., 928 S.W.2d 162, 171 (Tex.
App.—Houston [14th Dist.] 1996, no writ). SVP cases are civil proceedings, not
criminal or quasi-criminal. See In re Commitment of Martinez, 98 S.W.3d 373, 375
(Tex. App.—Beaumont 2003, pet. denied) (“Chapter 841 is a civil, not a criminal
or quasi-criminal, statute.”). A civil commitment proceeding is subject to the rules
3 of civil procedure unless otherwise provided by the Act. Tex. Health & Safety
Code Ann. § 841.146(b) (West 2010).
Clayton was not designated or retained as a testifying expert for the State.
“The identity, mental impressions, and opinions of a consulting expert whose
mental impressions and opinions have not been reviewed by a testifying expert are
not discoverable.” Tex. R. Civ. P. 192.3(e). The trial court did not abuse its
discretion in granting the State’s motion to quash. Issue two is overruled.
SUFFICIENCY OF THE EVIDENCE
In his third and fourth issues, Alexander challenges the legal and factual
sufficiency of the evidence supporting the jury’s finding that he is a sexually
violent predator. Alexander argues the State’s experts presented no basis
supporting their opinions on Alexander’s current mental health or ability to control
his behavior. He maintains the evidence is legally and factually insufficient to
support the verdict because the State failed to provide evidence that he presently
suffers from any of the mental disorders diagnosed by the experts, failed to provide
evidence to establish either a current condition or volitional impairment, and failed
to establish he has serious difficulty in controlling his behavior. See generally In re
Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.
denied) (legal sufficiency standard of review); see also In re Commitment of Day,
4 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied) (factual
sufficiency standard of review).
Alexander has a history of sexual offenses. In 2002, he received juvenile
probation for the offense of aggravated sexual assault of a child under fourteen
years of age. In 2009, he pleaded guilty to two offenses of indecency with a child
and received deferred adjudication community supervision for five years for each.
He violated the terms of his community supervision and in July 2010 was
sentenced to three years of confinement for each of the indecency-with-a-child
offenses, to be served concurrently. Alexander was serving these sentences at the
time of trial, and was twenty-three years old.
The State’s experts, Dr. Stephen Thorne and Dr. David Self, testified that
Alexander suffers from a behavioral abnormality that makes him likely to engage
in a predatory act of sexual violence. Thorne diagnosed Alexander with sexual
deviancy, pedophilia, personality disorder not otherwise specified, and mood
disorder. Dr. Self diagnosed Alexander with pedophilia, sexual deviancy,
personality disorder not otherwise specified, antisocial personality with
psychopathic traits, major depression with psychosis by history, and polysubstance
dependence.
5 Thorne identified Alexander’s risk factors for re-offending. Alexander was
almost thirteen years old when he committed his first offense against his five-year-
old sister; he re-offended after completing sex offender treatment; his second and
third offenses also involved child victims; he denies some of the offenses despite
pleading guilty; he has repeat victims; a large percentage of sexual offenses take
place by individuals in his age category; and he has not done anything to improve
his risk level. Dr.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00236-CV ____________________
IN RE COMMITMENT OF JOHN EARL ALEXANDER _______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-09-10035 CV ________________________________________________________ _____________
MEMORANDUM OPINION
The State filed a petition seeking the involuntary civil commitment of John
Earl Alexander as a sexually violent predator. See Tex. Health & Safety Code Ann.
§§ 841.001-.151 (West 2010 & Supp. 2012). A jury found beyond a reasonable
doubt that Alexander is a sexually violent predator. See id. § 841.003 (West 2010).
The trial court signed an order of commitment, and Alexander filed this appeal
from the final judgment. The issues raised on appeal present no reversible error.
We affirm the trial court’s judgment.
1 THE STATUTE
The State was required to prove beyond a reasonable doubt that Alexander is
a sexually violent predator. See id. § 841.062(a) (West 2010). The statute defines
“sexually violent predator” as a person who “(1) is a repeat sexually violent
offender; and (2) suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” Id. § 841.003(a). A
“behavioral abnormality” is a “congenital or acquired condition that, by affecting a
person’s emotional or volitional capacity, predisposes the person to commit a
sexually violent offense, to the extent that the person becomes a menace to the
health and safety of another person.” Id. § 841.002(2) (West Supp. 2012).
CONSTITUTIONAL CHALLENGE
In his first issue, Alexander argues the Texas Supreme Court’s opinion in In
re Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012), cert. filed
(Apr. 8, 2013)(No. 12-9719), has the effect of eliminating the requirement of a
mental illness for civil commitment under the SVP statute. Alexander argues the
statute is therefore facially unconstitutional. As this Court recently stated in In re
Commitment of Anderson, “We do not read the Bohannan opinion as eliminating a
statutory requirement, or as altering the proof required under the statute to find that
a person is a sexually violent predator.” In re Commitment of Anderson, 392
2 S.W.3d 878, 886 (Tex. App.—Beaumont 2013, pet. denied). Issue one is
overruled.
RULING ON MOTION TO QUASH
In his second issue, Alexander contends the trial court erred by denying
Alexander’s motion to depose Dr. Lisa Clayton, the State’s expert. Alexander
served a notice to depose Clayton and the State filed a motion to quash the
deposition. After a hearing, the trial court granted the State’s motion to quash.
Alexander maintains that the trial court should have allowed the deposition
because Brady v. Maryland’s rule requiring disclosure of exculpatory evidence in
criminal cases should be extended to SVP civil commitment cases. See Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
We review a trial court’s ruling on a motion to quash a deposition under an
abuse-of-discretion standard. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d
434, 445 (Tex. 2007); Salazar v. Coastal Corp., 928 S.W.2d 162, 171 (Tex.
App.—Houston [14th Dist.] 1996, no writ). SVP cases are civil proceedings, not
criminal or quasi-criminal. See In re Commitment of Martinez, 98 S.W.3d 373, 375
(Tex. App.—Beaumont 2003, pet. denied) (“Chapter 841 is a civil, not a criminal
or quasi-criminal, statute.”). A civil commitment proceeding is subject to the rules
3 of civil procedure unless otherwise provided by the Act. Tex. Health & Safety
Code Ann. § 841.146(b) (West 2010).
Clayton was not designated or retained as a testifying expert for the State.
“The identity, mental impressions, and opinions of a consulting expert whose
mental impressions and opinions have not been reviewed by a testifying expert are
not discoverable.” Tex. R. Civ. P. 192.3(e). The trial court did not abuse its
discretion in granting the State’s motion to quash. Issue two is overruled.
SUFFICIENCY OF THE EVIDENCE
In his third and fourth issues, Alexander challenges the legal and factual
sufficiency of the evidence supporting the jury’s finding that he is a sexually
violent predator. Alexander argues the State’s experts presented no basis
supporting their opinions on Alexander’s current mental health or ability to control
his behavior. He maintains the evidence is legally and factually insufficient to
support the verdict because the State failed to provide evidence that he presently
suffers from any of the mental disorders diagnosed by the experts, failed to provide
evidence to establish either a current condition or volitional impairment, and failed
to establish he has serious difficulty in controlling his behavior. See generally In re
Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.
denied) (legal sufficiency standard of review); see also In re Commitment of Day,
4 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied) (factual
sufficiency standard of review).
Alexander has a history of sexual offenses. In 2002, he received juvenile
probation for the offense of aggravated sexual assault of a child under fourteen
years of age. In 2009, he pleaded guilty to two offenses of indecency with a child
and received deferred adjudication community supervision for five years for each.
He violated the terms of his community supervision and in July 2010 was
sentenced to three years of confinement for each of the indecency-with-a-child
offenses, to be served concurrently. Alexander was serving these sentences at the
time of trial, and was twenty-three years old.
The State’s experts, Dr. Stephen Thorne and Dr. David Self, testified that
Alexander suffers from a behavioral abnormality that makes him likely to engage
in a predatory act of sexual violence. Thorne diagnosed Alexander with sexual
deviancy, pedophilia, personality disorder not otherwise specified, and mood
disorder. Dr. Self diagnosed Alexander with pedophilia, sexual deviancy,
personality disorder not otherwise specified, antisocial personality with
psychopathic traits, major depression with psychosis by history, and polysubstance
dependence.
5 Thorne identified Alexander’s risk factors for re-offending. Alexander was
almost thirteen years old when he committed his first offense against his five-year-
old sister; he re-offended after completing sex offender treatment; his second and
third offenses also involved child victims; he denies some of the offenses despite
pleading guilty; he has repeat victims; a large percentage of sexual offenses take
place by individuals in his age category; and he has not done anything to improve
his risk level. Dr. Thorne also considered Alexander’s psychiatric history and past
desire to discontinue taking his psychiatric medications, his antisocial and past
threatening behavior, his history of substance abuse, his pattern of violating rules
and laws, and his lack of a specific plan upon his release. Dr. Self identified risk
factors similar to those identified by Thorne.
Dr. Thorne noted that Alexander’s actions show he has had a difficult time
controlling his impulses. Alexander told Thorne that “he lives in the moment” and
does not plan ahead. Thorne believes these statements show that Alexander is not
taking the necessary steps to prevent predatory behavior from happening again.
Thorne noted that it is not significant that Alexander has not reoffended while
incarcerated. His victims were child victims and he does not have access to
children while he is incarcerated. Alexander re-offended after completing sex
offender treatment, and has not had any sex offender treatment since his most
6 recent offenses. Alexander does not believe he needs it. Thorne has concerns that
he does not have a plan to avoid re-offending because Alexander denies he has a
problem.
Dr. Self likewise has concerns about Alexander’s volitional capacity,
because Alexander committed his second and third offenses shortly after
completing his probation and after more than four years of sex offender treatment.
Self calls this a “marked failure of [Alexander’s] volition.” Self is also concerned
that Alexander denies the need for sex offender treatment and that he acts without
planning.
At trial, Alexander admitted the offense against his sister but explained that
he did not know at the time that it was wrong. Although Alexander pleaded guilty
to the two later offenses, he denied at trial that he committed them. He testified that
he does not have a problem with sex offending, does not believe he is a sex
offender, and does not believe he needs sex offender treatment.
The evidence supports the jury’s verdict. The jury was entitled to draw
reasonable inferences from basic facts to determine ultimate fact issues, and to
resolve conflicts and contradictions in the evidence by believing all, part, or none
of a witness’s testimony. In re Commitment of Barbee, 192 S.W.3d 835, 842 (Tex
App.—Beaumont 2006, no pet.). Considering the evidence in the light most
7 favorable to the verdict, we conclude the jury could reasonably find beyond a
reasonable doubt that Alexander has a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence. The record does not reflect a
risk of injustice that compels granting a new trial. Issues three and four are
overruled. The trial court’s judgment is affirmed.
AFFIRMED.
________________________________ DAVID GAULTNEY Justice
Submitted on April 8, 2013 Opinion Delivered May 30, 2013
Before Gaultney, Kreger, and Horton, JJ.