in Re Commitment of Lawrence Earl Scott

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-11-00555-CV ________________

IN RE COMMITMENT OF LAWRENCE EARL SCOTT

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On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-01-00915 CV ________________________________________________________________________

MEMORANDUM OPINION

The State of Texas filed a petition to commit Lawrence Earl Scott as a sexually

violent predator. A jury found that Scott suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. The trial court signed a

final judgment and order of civil commitment. In his sole appellate issue, Scott contends

that the trial court erred by granting a partial directed verdict in favor of the State on the

issue of whether Scott is a repeat sexually violent offender. Specifically, Scott argues

that because he requested a jury trial, he was entitled to have a jury determine the issue of

whether he is a repeat sexually violent offender. We affirm the trial court’s judgment and

order of civil commitment.

1 Joe Willis, an investigator with the Criminal Division of the Special Prosecution

Unit and an expert in the area of fingerprint identification, testified that he fingerprinted

Scott, compared Scott’s fingerprints to those on various judgments contained in the

penitentiary packets (“pen packets”) admitted as State’s exhibits, and concluded that all

of the fingerprints belonged to Scott. According to Willis, the pen packets contained a

judgment indicating that Scott pleaded guilty to rape and was sentenced to serve three

years in prison in 1974; another judgment indicating that a jury found Scott guilty of

aggravated rape and sentenced Scott to twenty years of confinement in 1976; and a third

judgment reflecting that Scott pleaded guilty to aggravated sexual assault in 1991 and

was sentenced to twenty years of confinement.

Scott testified that he pleaded guilty to rape and was sentenced to three years of

confinement in 1974, was convicted of aggravated rape in 1976 and was sentenced to

twenty years of confinement, and was convicted of aggravated rape in 1992 and

sentenced to twenty years of confinement. Although Scott admitted that he was

convicted of each offense and sentenced to confinement in prison, Scott testified that he

did not commit the offenses. At the conclusion of the State’s evidence, the State moved

“for a directed verdict on the issue of whether Mr. Scott is a repeat sexually violent

offender as defined as a person being convicted of more than one sexually violent offense

and a sentence imposed for at least one of these offenses.” The State argued that the

evidence “does not raise a fact issue and reasonable minds can draw only one conclusion

2 from the evidence.” The State pointed out Willis’s testimony concerning Scott’s

fingerprints, as well as Scott’s own testimony. Scott’s counsel objected to the State’s

motion on the grounds that it would deny Scott “the right to a jury trial as set forth in

Chapter 841 to both elements that need to be proven by the State . . . .” The trial court

granted a directed verdict as to the issue of Scott’s prior convictions for sexually violent

offenses.

Pursuant to the SVP statute, the State must prove beyond a reasonable doubt that

“the person is a sexually violent predator.” Tex. Health & Safety Code Ann. §

841.062(a) (West 2010). The SVP 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) (West 2010). A person is a repeat sexually violent offender if the person

is convicted of more than one sexually violent offense and a sentence is imposed for at

least one of the offenses.1 Id. § 841.003(b). “Sexually violent offense” includes, among

other things, offenses under Texas Penal Code sections 21.02 (continuous sexual abuse of

a young child or children), 21.11(a)(1) (indecency with a child by sexual contact), 22.011

(sexual assault), or 22.021 (aggravated sexual assault). Id. § 841.002(8) (West Supp.

1 In addition to conviction and imposition of sentence for more than one sexually violent offense, there are other means by which a person may be classified as a repeat sexually violent offender under the SVP statute. See Tex. Health & Safety Code Ann. § 841.003(b) (West 2010). 3 2012); see Tex. Penal Code Ann. §§ 21.02, 22.021 (West Supp. 2012), §§ 21.11(a)(1),

22.011 (West 2011).

The person the State seeks to civilly commit under the statute “is entitled to a jury

trial on demand.” Tex. Health & Safety Code Ann. § 841.061(b) (West 2010). However,

a civil commitment proceeding is generally subject to the rules of procedure for civil

cases. Id. § 841.146(b) (West 2010); see also In re Commitment of Malone, 336 S.W.3d

860, 862 (Tex. App.—Beaumont 2011, pet. denied). In civil cases, a party may move for

a directed verdict by stating in its motion the specific grounds for a directed verdict. Tex.

R. Civ. P. 268. When the evidence does not raise a fact issue when viewed in the light

most favorable to the nonmovant, a directed verdict is proper. Prudential Ins. Co. of Am.

v. Financial Review Servs., Inc., 29 S.W.3d 74, 77, 82 (Tex. 2000). Although Rule 268

does not expressly contemplate a partial directed verdict, the trial court may grant a

partial directed verdict to remove a certain portion of a case from the factfinder. Johnson

v. Swain, 787 S.W.2d 36, 37 n.1 (Tex. 1989) (op. on reh’g).

As previously discussed, in determining whether the person is a repeat sexually

violent offender, the SVP statute requires only that the person has been convicted and

sentenced for more than one sexually violent offense. Tex. Health & Safety Code Ann. §

841.003(b). The existence of Scott’s prior convictions and sentences for more than one

sexually violent offense was conclusively established by the testimony of Willis, as well

as Scott’s own testimony. Therefore, there was no fact question for the jury to decide

4 with respect to Scott’s status as a repeat sexually violent offender, and the trial court did

not err by granting a directed verdict on this element. We overrule Scott’s sole issue and

affirm the trial court’s judgment and order of civil commitment.

AFFIRMED.

___________________________ STEVE McKEITHEN Chief Justice

Submitted on October 12, 2012 Opinion Delivered October 25, 2012 Before McKeithen, C.J., Kreger and Horton, JJ.