In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-15-00500-CV ____________________
IN RE COMMITMENT OF MICHAEL LOEVITICUS TERRY
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-05-04647-CV
MEMORANDUM OPINION
The State of Texas filed a petition to commit Michael Loeviticus Terry
(Terry or Appellant) as a sexually violent predator. See Tex. Health & Safety Code
Ann. §§ 841.001-.151 (West 2010 & Supp. 2016) (SVP statute).1 A jury found that
Terry is a sexually violent predator. Terry filed a motion for judgment
notwithstanding the verdict and a motion for new trial. The trial court denied both
motions. The trial court rendered a final judgment and an order of civil
commitment, and Terry timely filed a notice of appeal. In three issues, Terry
1 Throughout this opinion, we cite to the current version of the statute unless a previous version of the statute applies and the subsequent amendments would materially affect our analysis.
1 challenges the constitutionality of the SVP statute as amended, the admission of
certain evidence at trial, and the sufficiency of the evidence. We affirm the trial
court’s judgment and order of civil commitment.
EVIDENCE AT TRIAL
Admission of Exhibits
Prior to the trial, defense counsel informed the trial court that Terry did not
wish to be present during the voir dire or during any other part of the trial. The trial
court ruled that Terry would be required to testify because he was under a
subpoena, but otherwise the trial court granted Terry’s request. Terry’s attorney
was present during and participated in all stages of the trial.
At the beginning of the trial, the State offered Terry’s pen packet into
evidence as Exhibit 1. The defense counsel objected to the exhibit stating that
Terry’s photograph in the pen packet was unduly prejudicial. The trial court
overruled the objection and admitted the exhibit. Terry’s pen packet includes
certified copies of the indictments and judgments for his 2007 convictions on two
counts of indecency with a child by sexual contact for his offenses against M.G.
and K.P., including his punishment at nine years and six months for each offense.2
2 We identify the victims by using initials. See Tex. Const. art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).
2 The State also announced to the trial court that it had additional exhibits that
had been proven up through deposition and that the State intended to introduce
during Terry’s testimony. When the State offered Exhibit 3, the defense objected to
“the photos and writings[]” on the basis of the best evidence rule and hearsay. The
court overruled the objections. The defense then also objected under Rule 403,
arguing that the exhibits were “numerous,” “gruesome,” “inflammatory[,]”
contained “explicit detail,” and would “unfairly prejudice the jury.” The defense
further argued that “by the sheer nature of the amount of writings and photographs
they are cumulative[]” and would sidetrack or confuse the jury. The State
responded that the exhibits
. . . are very relevant. They are evidence of not only his sexual deviance, but they are evidence of his behavior abnormality, they are evidence of his sexual preoccupation, they are evidence that the expert relied upon in forming his opinion. They are not cumulative, because out of the hundreds of pictures and writings that the State had at its disposal to use during this case, [the State] only selected a very small quantity. . . . about 10[.]”
The court found that the probative value outweighed any prejudicial effect and
overruled the defense objections as to Exhibit 3. The State then offered Exhibits 4
through 10, the defense “reurged” its objections and the court overruled and
admitted Exhibits 4 through 10.
3 The State described Exhibit 3 as “a picture that Mr. Terry drew [that]
contains writing on it where he actually discusses [] sex with two of the victims[.]”
The State argued that in Terry’s deposition, Terry characterized Exhibit 4 as “a
pornographic writing.” The State described Exhibits 5, 6, and 7 as writings by
Terry concerning his victims. The State described Exhibit 8 as “a picture cutout
with one of the victims’ face . . . glued on the picture with a writing about both of
the victims[.]” Exhibit 9 was described as “another writing that details some
sexual[ly] deviant fantasies of strangulation sex that the doctor used in forming his
underlying opinion[.]” And the State described Exhibit 10 as “a graphic picture
that [Terry] drew concerning one of the victims[.]”
Requests for Admissions
The State read Terry’s responses to requests for admissions into the record.
Terry admitted that he had two convictions for indecency with a child by sexual
contact, admitted his punishment of nine years and six months in prison for those
convictions, and admitted previous convictions for driving under the influence,
public intoxication and possession of stolen property. Terry also admitted to
having used methamphetamines, PCP, and marijuana, that he had “a problem with
alcohol[,]” that during periods in his life, he was “too addicted to work[,]” and that
he was under the influence of alcohol when he was accused of sexual offending.
4 Terry also admitted that the first time he had sex was with his adopted sister and
that he continues to become sexually aroused by thoughts of her. Terry admitted
that he once lost his apartment due to using meth, after which he stored his
belongings at his employer’s warehouse, including pornographic pictures and
writings he had made. He admitted that the writings on the pictures were “of a
sexual nature” with respect to his victims and as to other girls he knew, and also
that he wrote pornographic writings of sexual fantasies concerning his victims.
Testimony of Terry
The State called Terry as its first witness. At the time of trial, Terry was
sixty-four years old, and at that time Terry had served eight-and-a-half years of his
nine-and-a-half year sentence for his convictions against M.G. and K.P. Terry
agreed that, when he was about eleven years old, he and his sister were placed in
foster care and that he was “molested by the foster family[.]”
Terry testified that, after he graduated from high school, he entered the
Marine Corps, but while in the Marines he was arrested for PCP and alcohol, and
he was subsequently “undesirably discharged” from the Marine Corps. Terry
explained that, when he was in the Marine Corps, he would do “whatever [drugs]
showed up in the barracks[,]” including LSD, opium, marijuana, and alcohol.
According to Terry, he has been arrested for possession of stolen property,
5 contributing to the delinquency of a minor, DWI, and public intoxication. Terry
agreed that he would stop using but then relapse, and that alcohol was “the trickiest
substance” for him because he could not predict how he would behave when
drinking. According to Terry, “[m]eth took all the money[,]” caused his personality
to change, caused him to do things he would not normally do, caused him to lose
his apartment, and caused him to become unemployed. Terry also testified that he
believed he was a sex addict and that he planned to go to Sex Addicts Anonymous.
According to Terry, prior to his arrest for indecency with a child by sexual
contact, he had started using meth again and he lost his apartment due to his meth
use. At one point, he lived with his son, who was married and had three children,
including M.G. and K.P. Terry agreed that, for a time, he also stayed with a couple
who operated a day care in their house, and the couple discovered a box of
pornographic material of “dirty pictures and writings” Terry had made and that
were in the van Terry drove, and the couple turned the materials over to the police.
Terry also agreed that the police thought he had done some of the things contained
in the materials and arrested him on charges of indecency with a child by sexual
contact for offenses against M.G. and K.P.
Terry described M.G. and K.P. as his son’s stepchildren. According to Terry,
M.G. and K.P. played a “game” with him one time. He agreed that K.P. climbed
6 onto his lap and wiggled around, and M.G. grabbed his hand and placed it between
her legs. According to Terry, when the girls played this game with him, the girls’
parents were not around and had left Terry alone to babysit the girls. Terry agreed
he became aroused and that he continued to think and fantasize about the girls
touching him. Terry also agreed he fantasized about other children after this
incident. Terry did not remember touching the girls, but he agreed it was possible
that it happened because he was drunk that night and he may have blacked out.
Terry also agreed that M.G. was “aggressive[]” and “retarded[]” and that if he had
blacked out in the same room with her that night, “she would have participated and
[he] would not have had sense enough as an adult to get up and walk away.” Terry
agreed that the police learned that it was possible he had sexually offended against
M.G. and K.P. because he had written pornographic fantasies and made explicit
drawings about the girls.
The State showed Exhibit 5 to the jury and asked Terry to read it. The
defense requested and obtained a running Rule 403 objection to the State’s
exhibits. The exhibit was in Terry’s handwriting and described in detail “[o]ver
200 times in one year raping [M.G.] in her sleep[]” at Terry’s son’s house, but
Terry testified that it was fantasy and never happened. Terry also agreed that the
writing in Exhibit 6, which described sexual interest in “really pretty children[,]”
7 looked like his handwriting but that it was fantasy. Terry disagreed that fantasy
was a desire and explained “Fantasy is a thought. A daydream.” However, Terry
also agreed that, in his deposition prior to trial, he had agreed that the writing in
Exhibit 5 was something he had thought about doing to M.G. Terry agreed that
State’s Exhibit 7 looked like his handwriting and that it was another fantasy about
M.G. in which he “graduated from just fantasizing about her to actually touching
her[.]” Terry described State’s Exhibit 8 as a drawing of M.G. and he stated that it
looked “nasty” to him. Terry testified that he was high on methamphetamine when
he made the drawing, that he cut out pictures and glued them onto bodies, and that
he “wrote disgusting things.”
Terry agreed that State’s Exhibit 3 was one of his writings, but he did not
recall who the girl was in the picture, and he agreed it was just a fantasy. Terry
agreed that he had had fantasies about K.P. and made drawings of her, and he
recognized his handwriting in State’s Exhibit 10, a sexual writing concerning K.P.
that described her as “only five years old.” According to Terry, he found K.P. sexy
but Exhibit 10 was a fantasy that did not happen. Terry testified that M.G. said
“suggestive things[]” to him on more than one occasion, and when she did so, she
was “aggressive[,]” would force herself onto him, and would touch him. He denied
8 having a physical reaction when M.G. said these things, and according to Terry he
would “get up and move away[]” or leave in his truck when it occurred.
Terry agreed that, in his deposition, he had described writing sexual
fantasies about fourth-graders in bikinis. When asked whether he had fantasized
having sex with dead bodies, in reference to the writing in State’s Exhibit 4, Terry
responded “[i]t looks like it.” And when the State questioned Terry about the
writing in Exhibit 9, Terry agreed that it “looks like” he fantasized about
kidnapping young girls, strangling them, and having sex with their dead bodies
while their mothers watched. But, Terry stated the writing was fantasy. Terry
agreed that “there were many, many more documents” than what the State
introduced at trial. Terry testified that he was attracted to female adults but also
“[s]ometimes[]” to female children. He agreed he fantasized about JonBenet
Ramsey and that when he grew bored with “standard Penthouse pornography[]” his
taste grew towards forbidden fantasies and he created his own materials.
Terry agreed that he was required to take sex offender education as a
condition of parole. According to Terry, he had been caught in prison having a
picture of a woman in her underwear, but Terry explained that he did not know he
had the picture in his possession and he had forgotten about it. Terry testified that
he had completed the Sex Offender Education Program and, when asked what he
9 learned, he replied “Don’t be a sex offender.” Terry agreed that he is a sex offender
and that he needs sex offender treatment but Terry does not believe he is at risk for
reoffending. According to Terry, upon release from prison, he intends to go back to
Alcoholics Anonymous. Terry testified that he had not heard from family or
anyone while in prison, he was on a waiting list for housing, and when asked how
he planned on avoiding returning to prison, he stated “[a]void pornography, drugs,
alcohol, try to just be a good sign painter. . . . I’m a good sign painter.” Terry
explained that he no longer writes pornographic material.
On examination from his own attorney, Terry agreed that he had ruined his
victims’ lives and that he “earned” his punishment and deserved his imprisonment.
He denied that he currently has sexual fantasies involving children or finds abusing
children to be sexually exciting. When asked how he felt about his sexual offenses,
he replied “[g]uilty, ashamed, embarrassed.” Terry testified that he had been sober
since he has been in prison, even though drugs were available in prison, and he did
not want the consequences of drinking. Terry explained he had four “minor
cases[]” while he was in prison, including failing to put his name in some
paperback books and skipping a class. He denied having been in trouble for
making sexual advances toward female prison staff, and he explained that his sex
drive had “dwindled, dried up[]” while in prison.
10 Testimony of Dr. David Self
David Self, M.D. (Self or Dr. Self), a physician and board-certified
psychiatrist, testified as an expert for the State. Self explained that he had been
practicing forensic psychiatry since 1995, that he has been evaluating individuals
for a behavior abnormality since 2009, that he relied on the principles of forensic
psychiatry when evaluating Terry, and that his testimony was within the scope of
forensic psychiatry. Dr. Self testified that he was asked to answer whether Terry
had a behavioral abnormality as defined by Chapter 841 of the Texas Health and
Safety Code. Self then explained that a behavioral abnormality is a condition that
affects someone’s volition or ability to control their emotions and predisposes them
to be a risk of harm to others via sexually violent acts.
Dr. Self described the methodology he uses in conducting a behavioral
abnormality assessment, which includes a review of all available records and
conducting a face-to-face psychiatric screening. He agreed that the methodology he
uses is the methodology used by experts performing this type of evaluation in
Texas. After reviewing records and interviewing Terry, Dr. Self formed an opinion
that Terry has a behavioral abnormality that predisposes him to engage in
predatory acts of sexual violence.
11 Dr. Self met with Terry for almost two hours, and he described Terry’s
demeanor during the meeting as “easy-going. . . . open, cordial and forthcoming.”
Self explained that he reviewed police reports, prison records, an interview by the
Sex Offender Treatment Program, and a psychological evaluation done by a
psychologist. Although Dr. Self testified that he reviewed the Multidisciplinary
Team (MDT) report, Self also testified that Terry had refused to see the
psychologist who evaluated Terry. After meeting with Terry, Dr. Self also received
records from the District Attorney’s office that prosecuted Terry and a copy of
Terry’s deposition.
Dr. Self explained that he relied in part on Terry’s sexual convictions in
forming his opinion that Terry suffers from a behavior abnormality and that the
facts and details of his convictions concerning victim characteristics, the nature of
the offenses, and the context in which they occur are important “clues.” Self also
found the compendium of Terry’s pornographic drawings and writings to be “very
helpful.” Dr. Self testified that the records showed that Terry was fifty-five years
old when he was indicted for offenses against M.G. and K.P. Self explained that at
the time of the sexual offenses, M.G. was eleven years old, K.P. was six years old,
and the two girls were the daughters of Terry’s son’s “common-law wife or
paramour.” According to Dr. Self, the records described M.G. as “mentally
12 retarded[]” and as having cerebral palsy. Dr. Self explained that, at the time of the
offenses, Terry’s employer let Terry use a van with the understanding that, if Terry
“got drunk, he would lose the van.” Dr. Self explained that Terry did get
. . . drunk and stoned on meth . . . and lost the van. And when they took [the van] back, they discovered . . . two shoeboxes full of these pornographic writings and graphics.
....
Because they recognized [that] some of it was about children being molested in violent ways, they called the police.
After examining the materials, the police were able to identify M.G. and K.P. as
the potential victims, and M.G. and K.P. were interviewed at a child advocacy
center and by a sexual abuse nurse examiner (SANE). According to Dr. Self, the
SANE found “clear evidence of sexual abuse.” Dr. Self further explained that K.P.
had made an outcry to her mother, saying that Terry had threatened to kill her if
she told her father that Terry was touching her. M.G. also made an outcry to her
mother that was “fairly minimal[.]” Self testified that, when he asked Terry about
these events, Terry “was very vague[]” and said he was intoxicated on alcohol and
meth during the offenses. Dr. Self explained that substance abuse “make[s] it a lot
easier to pursue impulsive urges.”
According to Dr. Self, Terry first recognized that he had an attraction to
prepubescent children when the JonBenet Ramsey story was first in the news. Dr.
13 Self testified that he asked Terry about the offenses against M.G. and K.P. and that
Terry told him there had been two or three instances of molestation and that Terry
“attributed the initiation of these things to the children’s behavior[.]” Self also
testified that Terry told him M.G. made sexually suggestive comments to Terry,
although Self found it “abnormal[,]” “unusual[,]” and “incredulous that an 11-year-
old girl is going to be that directly promiscuous and inviting to an old man.” Dr.
Self explained that it is common for pedophiles to excuse their behavior by saying
the child initiated the contact. According to Dr. Self, Terry’s rationalization and
self-justification are relevant to Terry’s mindset today because it means “he’s still
defending that behavior[]” and “he is building a rationalization instead of
confronting the ugly truth.”
When Dr. Self asked Terry about the writings, Terry “wanted to more or less
dismiss them as products of methamphetamine and alcohol[]” and Terry stated that
he had started making the writings before he had even been around M.G. and K.P.
because “he had grown bored with Penthouse and [the] regular kind of
pornography and needed something with more punch.” Dr. Self described this as
“stepping up . . . when one level of offense of any sort, violent or sexual, starts to
lose its thrill, [] there’s an escalation in seriousness.” Dr. Self reviewed the
writings and pictures that referenced M.G. and K.P. and explained that they
14 described “incredibly sadistic and cruel sexual assaults on these little girls.” Dr.
Self explained that some of the pictures Terry drew were of adult female bodies
and some were prepubescent children. According to Dr. Self, there was no
evidence that Terry had actually done the things he wrote about. However, Dr. Self
testified that the records he reviewed reflected that Terry “did more than just
casually touch the girls on one occasion[]” and that both girls had reported “it had
happened several times.” Dr. Self explained that “quite a few[]” writings or
pictures of Terry contributed to his opinion that Terry has a behavior abnormality
and that the writings show Terry’s “taste for the extraordinarily vulnerable
victim[.]” On cross-examination Dr. Self acknowledged that Terry’s writings and
pictures depict “fantasies[,]” but Self explained that a “risk inherent” exists and in
the “stepping-up process[,]” a person moves from fantasy and thinking to “doing
more.” According to Dr. Self, there were many more writings and pictures than
what the State presented to the jury.
Self testified that Terry met the criteria for pedophilic disorder, and this
diagnosis was pertinent to his opinion that Terry has a behavioral abnormality. Self
also agreed that sexual sadism was a “distinct possibility[]” for Terry. Self
explained that pedophilia is a chronic condition that does not go away, but that the
behavior resulting from pedophilic urges has been observed to diminish with age.
15 According to Dr. Self, Terry did not admit to the urges and Terry minimized his
offenses. When Dr. Self asked Terry what harm he had caused M.G. and K.P.,
Terry was not sure how they were harmed and “he kind of minimized it and said
that he’s sure nothing good came of it.” Dr. Self also explained that he found Terry
to have attitudes tolerant of sexual assault based on Terry’s rationalization of his
offenses; Terry blames the incidents on the girls, and Terry’s writings portray
sexual assault as “a happy thing[.]”
According to Dr. Self, Terry’s sexual and nonsexual criminal history
contributes to his risk of reoffending. Dr. Self diagnosed Terry with “personality
disorder not otherwise specified[]” and explained that Terry has antisocial traits but
not antisocial personality disorder. Dr. Self explained that “a personality disorder
that causes you to have friction with other people definitely contributes to
instability[.]” Dr. Self agreed that he had seen no evidence that Terry had a major
mental illness. Self also testified that Terry also has a “very significant history of
substance abuse[,]” including abuse of methamphetamine, alcohol, and marijuana.
Dr. Self diagnosed Terry with methamphetamine and alcohol dependence in
remission in a controlled environment. Addressing the correlation and relevance of
Terry’s drug abuse and dependence on Terry’s behavior abnormality, Dr. Self
explained that
16 . . . drugs like this don’t cause you to have ideas about raping kids. But if you have ideas about raping kids or any bad ideas that you’re trying to inhibit and keep a lid on, drugs like this make it easy to act on those ideas. They disinhibit. They make you more aggressive, more impulsive and raise the risk through the roof. These are the two huge risk raisers in all substance abuse.
According to Dr. Self, Terry made “a pretty good adjustment” in prison and the
“most significant thing” that occurred while Terry was in prison is that Terry was
found to possess a “very provocative picture of a woman in a sexual pose[]” near
the end of the time when he was in the Sex Offender Education Program. In Dr.
Self’s opinion, Terry needs sex offender treatment, and he was “inclined to think”
that Terry did not believe he needed such treatment and that Terry “wants to avoid
that environment.” Dr. Self testified that he believes Terry acknowledges his
deviance but that he does not understand the risk he poses. Self also agreed that
there is no evidence Terry has used drugs or alcohol in prison or that Terry has
continued making writings or pictures in prison.
Addressing the risk factor of general instability, Dr. Self observed that Terry
has “a fairly erratic history of employment[,]” he has been homeless at various
times, and he has no social support network. Dr. Self agreed that the psychologist
who evaluated Terry wrote that Terry appeared to have the intellectual ability to
maintain steady employment, which the psychologist regarded as a mitigating
factor. Self told the jury that
17 . . . [p]eople that have [substance abuse] diagnoses and have no social support network and have other sources of psychosocial stress, the risk of relapse is even higher and the risk of relapse increases the risk of sexual recidivism. So it’s a chain reaction kind of a deal.
Dr. Self also testified that Terry has only had a four-month sex offender education
program but no treatment, which put Terry at a higher risk for reoffending upon
release from prison. Terry’s age was a protective factor that could mediate his risk
for reoffending, although Dr. Self could not say how much of a protective factor
age was in Terry’s case because the records indicate Terry started offending at age
fifty-five. Dr. Self identified no other protective factors for Terry.
Terry scored “zero[]” on the Static-99R actuarial scored by a licensed
psychologist, and Terry’s score is associated with a low risk of reoffending. Dr.
Self testified that the actuarial did not consider Terry’s “[t]wo shoeboxes full of
drawings and writings that indicate an extraordinary preoccupation with sadistic
pedophilic fantasy[]” and Terry’s score on the actuarial did not accurately indicate
Terry’s current level of risk.
Dr. Self explained that Terry had told him that Terry’s “whole plan[]” upon
release was that he “would go wherever they sent him[]” and “try to get
connected” with AA and sex addicts anonymous groups. Dr. Self explained that
the prospect of Terry going to a sex addicts group was “problematic[]” because
many people who go to such groups are insincere and negative relationships are
18 formed, and, as a result of reading Terry’s deposition, Self was concerned that
Terry wanted to “get hooked up with [] Sex Addicts Anonymous to find friends or
other people who write weird stuff like him[.]” According to Dr. Self, Terry was
not able to articulate a plan to avoid sexual re-offense and, in Self’s opinion, Terry
did not have the tools to control the factors in his life that put him at a high risk of
reoffending.
Verdict and Post-Trial Motions
The State moved for a directed verdict on the issue of repeat sexual offender,
which the court granted, and the State rested its case. The defense then moved for a
directed verdict “on the grounds that the State has failed to comply with the
prerequisite of Chapter 841.023(a)[]” because “there was no testing for
psychopathy done[]” either by the psychologist or by Dr. Self.3 The court denied
the defense’s motion for directed verdict, and the defense rested without calling
any witnesses.
The jury found beyond a reasonable doubt that Terry is a sexually violent
predator. The defense moved for judgment notwithstanding the verdict, and the
3 Section 841.023(a) addresses the pre-petition assessment for behavioral abnormality and states, in relevant part, “[t]he expert shall make a clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques to aid the department in its assessment.” Tex. Health & Safety Code Ann. § 841.023(a) (West Supp. 2016).
19 court ordered briefing concerning whether an examination for psychopathy is
required by Chapter 841, whether failure to conduct a psychopathy exam is
jurisdictional, whether a jurisdictional proceeding may be raised at any point in the
proceeding, and whether Dr. Self’s testimony that he diagnosed Terry with
antisocial traits was evidence that Self conducted an examination regarding
psychopathy. After a hearing on the motion, the court denied Terry’s Request for
Judgment Notwithstanding the Verdict and the trial court entered its final judgment
and order of commitment. Terry filed a motion for new trial, which the trial court
denied, and Terry timely filed an appeal.
THE SVP STATUTE
In an SVP civil commitment proceeding, the State bears the burden to prove
beyond a reasonable doubt that the respondent is a sexually violent predator. See
Tex. Health & Safety Code Ann. § 841.062 (West 2010); In re Commitment of
Morales, 98 S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied). A person
is a sexually violent predator if the person “is a repeat sexually violent offender[]
and suffers from a behavioral abnormality that makes the person likely to engage
in a predatory act of sexual violence.” Tex. Health & Safety Code Ann.
§ 841.003(a) (West Supp. 2016). A behavioral abnormality is “a congenital or
acquired condition that, by affecting a person’s emotional or volitional capacity,
20 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. 2016).
CONSTITUTIONAL CHALLENGE
In his first issue, Terry argues that the SVP statute as amended by Senate
Bill 746 is facially unconstitutional because it requires all persons adjudicated as
sexually violent predators to live in “total confinement” with “severe criminal
penalties” for violating certain requirements of civil commitment, and as amended
fails the “intent-effects test” utilized by the Texas Supreme Court in In re
Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005). Terry contends that the
findings of a trial court judge as to another civilly-committed person, Alonzo May,
equally apply to Terry, and Terry argues that the Supreme Court’s holding in
Fisher depended heavily on the fact that the prior version of the statute provided
for outpatient treatment. Terry also argues that the statutory provisions of “an
‘inpatient’ civil-commitment program in a ‘total confinement facility’” in
combination with criminal penalties for violating certain requirements of civil
commitment “tipped Chapter 841 into the punitive realm[.]”
Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas
Health and Safety Code in several respects. See Act of May 21, 2015, 84th Leg.,
21 R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700, 2700-12 (hereinafter S.B. 746).
The Legislature created a new state agency, the Texas Civil Commitment Office
(TCCO), with the responsibility for treatment and supervision of sexually violent
predators.4 Id. § 3 (current version at Tex. Health & Safety Code Ann. § 841.007
(West Supp. 2016)). The Legislature required the TCCO to develop a tiered
program of supervision and treatment that provides a seamless transition from a
total confinement facility to less restrictive housing and supervision and eventual
release from civil commitment, based on the person’s behavior and progress in
treatment. Id. § 16 (current version at Tex. Health & Safety Code Ann. § 841.0831
(West Supp. 2016)). Under the statute as amended, the TCCO transfers a
committed person to less restrictive housing and supervision if the transfer is in the
best interests of the person and conditions can be imposed that adequately protect
the community, and a committed person may petition the court for a transfer to less
restrictive housing and supervision. Id. (current version at Tex. Health & Safety
Code Ann. § 841.0834 (West Supp. 2016)). The enacting language of SB 746
provides:
4 See Tex. Gov’t Code Ann. § 420A.002 (West Supp. 2016). Throughout this opinion we refer to the Texas Civil Commitment Office by its acronym, “TCCO.” The Office of Violent Sex Offender Management (OVSOM) was the predecessor agency to the TCCO.
22 If a civil commitment requirement imposed under Chapter 841, Health and Safety Code, before the effective date of this Act differs from any of the civil commitment requirements listed in Section 841.082, Health and Safety Code, as amended by this Act, the applicable court with jurisdiction over the committed person shall, after notice and hearing, modify the requirement imposed as applicable to conform to that section.
Id. § 40(b).
When the Texas Legislature implemented the tiered treatment program in
2015, it simultaneously reduced the number of conditions of commitment.
Specifically, the Legislature deleted three conditions of civil commitment:
(1) prohibiting the person’s possession or use of alcohol, inhalants, or a controlled
substance; (2) if determined appropriate by the judge, establishing a child safety
zone in the same manner as a child safety zone is established by a judge under
Section 13B, Article 42.12, Code of Criminal Procedure and requiring the person
to comply with requirements related to the safety zone; and (3) “any other
requirements determined necessary by the judge.” See S.B. 746 § 15. Furthermore,
the 2015 Legislature changed section 841.085 so that violations of only certain
provisions of section 841.082 constitute a criminal offense. Id. § 19.
Generally, to preserve a complaint for appellate review, the complaining
party must present the complaint to the trial court by timely request, objection, or
motion. Tex. R. App. P. 33.1(a)(1). We apply the preservation rule to constitutional
23 challenges. See In re Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex.
App. LEXIS 1098, at *25 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem.
op.) (failure to make a constitutional challenge to the SVP statute at trial
constituted a failure to preserve the issue for appeal); In re Commitment of Dodson,
434 S.W.3d 742, 747 (Tex. App.—Beaumont 2014, pet. denied) (failure to make a
constitutional challenge to the SVP statute at trial constituted a failure to preserve
the issue for appeal); In re Commitment of Johnson, 153 S.W.3d 129, 130 (Tex.
App.—Beaumont 2004, no pet.) (“A complaint regarding the constitutionality of a
statute is subject to the ordinary rules of procedural default.”).5
The statutory amendments about which Terry complains became effective
on June 17, 2015, and Terry’s trial began on October 5, 2015. Terry filed his
motion for judgment notwithstanding the verdict on October 12, 2015, and he filed
5 See also In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (parent failed to preserve his due process challenge); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (party failed to raise constitutional argument that trial court’s ruling violated open-courts provision in response to summary judgment motion and thus did not preserve it for appeal); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (party waived due process and equal protection challenges by failing to raise them in trial court); Lowe v. Jefferson Dental Clinics, No. 05-11-00902- CV, 2012 Tex. App. LEXIS 3796, at **4-5 (Tex. App.—Dallas May 14, 2012, no pet.) (mem. op.) (appellant failed to preserve her challenge to the constitutionality of Chapter 74 by failing to raise the complaint in the trial court); In re J.R.N., No. 09-08-00029-CV, 2010 Tex. App. LEXIS 2280, at **8-9 (Tex. App.—Beaumont Apr. 1, 2010, no pet.) (mem. op.) (“The law is well settled that even constitutional errors may be waived by failure to raise the issues at trial.”).
24 his motion for new trial on October 28, 2015, neither of which raised a
constitutional challenge. The appellate record indicates that Terry did not raise the
issue of the constitutionality of the SVP statute as amended before or during trial,
and he failed to raise the issue in his post-trial motions. Therefore, he failed to
preserve this issue for appellate review. See Tex. R. App. P. 33.1.
Nevertheless, Terry argues that, after his own trial had concluded and the
court denied his motion for new trial, a different trial court that was hearing
Alonzo May’s civil commitment case declared Chapter 841 as amended
unconstitutionally punitive. See In re Commitment of May, No. 09-15-00513-CV,
2016 Tex. App. LEXIS 8058, at **5-8 (Tex. App.—Beaumont July 28, 2016, no
pet. h.). Citing to Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014)
(Cochran, J., concurring) and Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App.
2015), Terry argues that his constitutional claim on appeal should be considered
timely because “‘a person may always obtain relief from an indictment or a
conviction based on a penal statute that has been previously declared
unconstitutional.’” See Chance, 439 S.W.3d at 919 (Cochran, J. concurring). We
find Chance and Fournier inapposite because those cases pertained to the
constitutionality of a penal statute, and the SVP commitment statute is a civil
statute. See Fisher, 164 S.W.3d at 653 (explaining that the SVP statute is civil);
25 May, 2016 Tex. App. LEXIS 8058, at *17 (concluding that the SVP statute, as
amended in 2015, remains civil).
Even if Terry’s challenge had been timely raised, as we explained in May,
Chapter 841, as amended in 2015, is not unconstitutional. See May, 2016 Tex.
App. LEXIS 8058, at **7-18. In May, we specifically examined and applied the
factors as outlined in Fisher. Id. As to Terry’s argument that the statute as
amended is unconstitutionally punitive because it requires “total confinement” as
well as provides for “severe criminal penalties” for violating certain requirements
of civil commitment, we are unpersuaded. Taken as a whole, the 2015 amendments
reduce the possibility that a person subject to an SVP civil commitment order is
punished criminally for violation of that order. Moreover, “the United States
Supreme Court has never held that the imposition of criminal penalties for
violating a civil regulatory scheme ipso facto renders an act punitive, rather than
civil.” See Fisher, 164 S.W.3d at 652-53 (citing Smith v. Doe, 538 U.S. 84, 90,
105-06 (2003) (holding that Alaska Sex Offender Registration Act was civil even
though a knowing failure to comply would subject the offender to criminal
prosecution) and Hawker v. New York, 170 U.S. 189, 192-94, 200 (1898) (holding
that New York statute prohibiting felons from obtaining licenses to practice
medicine did not violate the ex post facto clause, despite criminal penalties
26 imposed for failure to comply and explaining that “such legislation is not to be
regarded as a mere imposition of additional penalty, but as prescribing the
qualifications for the duties to be discharged and the position to be filled”)). Terry
has failed to meet his burden of providing “the clearest proof” that the SVP statute
as amended is so punitive in either purpose or effect as to negate the stated
Legislative intent that it be civil. See Kansas v. Hendricks, 521 U.S. 346, 361
(1997) (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)). For this
reason and for the same reasons discussed in May, we conclude the statute remains
civil, and we reject Terry’s constitutional challenge. We overrule Terry’s first
issue.
ADMISSION OF EVIDENCE
In his second issue, Terry argues that the trial court erred in admitting State
Exhibits 3 through 10 because their probative value was substantially outweighed
by the danger of unfair prejudice. According to Terry, the State described these
exhibits as “graphic and downright disturbing,” the exhibits “created a danger of
arousing the jury’s hostility toward Mr. Terry without regard to the logical
probative force of this evidence[,]” and there was a “very real danger” that the jury
could have improperly based its verdict on this evidence. Although we read
Appellant’s brief to concede that the evidence was relevant, Appellant then argues
27 that the exhibits “added nothing of any consequence to the [State’s] case except to
inflame the jury against Mr. Terry.”
We review the admission or exclusion of evidence under an abuse of
discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.
1995); In re Commitment of McCarty, No. 09-12-00083-CV, 2013 Tex. App.
LEXIS 7855, at **4-5 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem.
op.). A trial court abuses its discretion when it acts without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985). We will not reverse a judgment on the admission or
exclusion of evidence unless an appellant establishes that the trial court’s ruling
was in error and that the error was reasonably calculated to cause and probably did
cause the rendition of an improper judgment. See McCarty, 2013 Tex. App. LEXIS
7855, at *5; see also Tex. R. App. P. 44.1(a)(1).
Texas law presumes that relevant evidence is more probative than
prejudicial. See Tex. R. Evid. 402; In re Commitment of Winkle, 434 S.W.3d 300,
309 (Tex. App.—Beaumont 2014, pet. denied). Relevant evidence may
nonetheless be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. Tex. R. Evid. 403. However, Rule 403 should be used
“sparingly[]” to exclude relevant evidence. See Winkle, 434 S.W.3d at 309.
28 “Evidence is unfairly prejudicial when it has an undue tendency to suggest that a
decision be made on an improper basis, commonly, but not necessarily, an
emotional one.” In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex.
App.—Beaumont 2013, pet. denied). A trial court’s Rule 403 balancing test
includes, but is not limited to, the following considerations: (1) the probative value
of the evidence, (2) the potential for the evidence to impress the jury in some
irrational way, (3) the time needed to develop the evidence, and (4) the proponent’s
need for the evidence. Id. “The trial court has discretion to determine whether the
probative value of proffered evidence is substantially outweighed by the danger of
unfair prejudice.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 812 (Tex.
2010). We assume the trial court applied the Rule 403 balancing factors, but it
need not have done so on the record. See In re Commitment of Haines, No. 09-15-
00526-CV, 2016 Tex. App. LEXIS 6405, at *16 (Tex. App.—Beaumont June 16,
2016, no pet.) (mem. op.) (citing Allstate Tex. Lloyds v. Potter, 30 S.W.3d 658,
662 (Tex. App.—Texarkana 2000, no pet.)). The jury is the exclusive judge of the
weight and credibility of evidence at trial. See In re Commitment of Rushing, No.
09-11-00268-CV, 2012 Tex. App. LEXIS 8140, at **1-2 (Tex. App.—Beaumont
Sept. 27, 2012, no pet.) (mem. op.) (citing City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005)); see also Kirk v. State, 421 S.W.3d 772, 783-84 (Tex.
29 App.—Fort Worth 2014, pet. ref’d) (It is within the province of the jury, as sole
judge of the evidence, to determine whether provocative demonstrative evidence
bears on an ultimate issue or merely portrays a defendant in a distasteful light.).
A party seeking to reverse a judgment based on evidentiary error must prove
that the judgment turned on the particular evidence that was excluded or admitted.
See In re Commitment of Sells, No. 09-15-00172-CV, 2016 Tex. App. LEXIS
3916, at *26 (Tex. App.—Beaumont, Apr. 14, 2016, pet. denied) (mem. op.)
(citing Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)).
The erroneous “admission or exclusion [of evidence] is likely harmless if the
evidence was cumulative, or if the rest of the evidence was so one-sided that the
error likely made no difference.” Reliance Steel & Aluminum Co. v. Sevcik, 267
S.W.3d 867, 873 (Tex. 2008) (footnote omitted); Wesbrook v. State, 29 S.W.3d
103, 119 (Tex. Crim. App. 2000) (erroneous admission of evidence is harmless
where the evidence reflects such evidence did not “move[] the jury from a state of
nonpersuasion to one of persuasion as to the issue in question[]”); Kirk, 421
S.W.3d at 783-84 (no harm to admit provocative photographs that may have
portrayed defendant in a distasteful light because the record did not reflect that the
photographs likely moved the jury from acquitting to convicting defendant).
30 Exhibits 3 through 10 provide evidence of Terry’s sexual preoccupation, and
Dr. Self explained that he reviewed and relied upon the documents in forming his
opinion that Terry currently has a behavioral abnormality. Terry testified that he
had written pornographic fantasies and had made explicit drawings about M.G. and
K.P. Dr. Self testified that State’s Exhibits 3 through 10 reflected a pattern in
Terry’s behavior of “stepping up,” which is an “escalation in seriousness[]” of his
behavior, and that there was a “risk” that Terry would move from fantasy and
thinking to “doing more[]” or acting on impulses. We have repeatedly approved
the admission of an expert’s basis evidence in SVP cases. See In re Commitment of
Alvarado, No. 09-13-00217-CV, 2014 Tex. App. LEXIS 3343, at **26-30 (Tex.
App.—Beaumont Mar. 27, 2014, pet. denied) (mem. op.) (“Trial courts have
discretion to admit the underlying facts or data on which an expert has based an
opinion.”); In re Commitment of Day, 342 S.W.3d 193, 197-99 (Tex. App.—
Beaumont 2011, pet. denied). State’s Exhibit 3 through 10 were created by Terry
and were considered by Dr. Self in developing his opinion. Citing to Salazar v.
State, 90 S.W.3d 330 (Tex. Crim. App. 2002), Terry argues that a Rule 403
balancing test requires a court to consider, among other factors, the proponent’s
need for the evidence, and that in this case, the State did not articulate “a specific
need it had for these exhibits beyond what other evidence available . . . already
31 undisputedly established.” Assuming without deciding that a trial court must
consider the proponent’s need for the evidence, we conclude that the trial court
could have reasonably concluded the State demonstrated its need for this evidence
because the record reflects that Dr. Self relied upon and reviewed the evidence in
forming his opinion, and Exhibits 3 through 10 illustrated Terry’s “stepping up”
process as well as Terry’s sexual preoccupation.
Citing to Salazar and Casey v. State, 215 S.W.3d 870 (Tex. Crim. App.
2007), Appellant also complains that “without having explicitly weighed and
balanced these factors and without having articulated a rationale for admitting
these exhibits, the trial court’s ruling is not entitled to the ‘greatest deference.’” A
trial court need not conduct its Rule 403 balancing test on the record. See Haines,
2016 Tex. App. LEXIS 6405, at *16; see also Santellan v. State, 939 S.W.2d 155,
173 (Tex. Crim. App. 1997) (“Although appellant asserts that the trial court did not
perform the balancing test, the trial court did not explicitly refuse to do the test, it
simply overruled appellant’s Rule 403 objections. We find nothing in the record to
indicate that the trial court did not perform a balancing test, albeit a cursory one.”).
Appellant points to nothing in the record to support his assertion that the trial court
failed to conduct a Rule 403 balancing test. See Tex. R. App. P. 38.1(i).
Furthermore, Appellant’s argument that admission of the exhibits created “a very
32 real danger that the jury could have improperly based its verdict on this evidence
alone” falls short of Appellant’s burden to show that the judgment actually turned
on the particular evidence that was admitted. See Sells, 2016 Tex. App. LEXIS
3916, at *26. On the record before us, we cannot conclude the trial court abused its
discretion in admitting the evidence or that any error in the admission of Exhibits 3
through 10 probably resulted in an improper judgment. See Tex. R. App. P.
44.1(a)(1); McCarty, 2013 Tex. App. LEXIS 7855, at *5. We overrule Appellant’s
second issue on appeal.
LEGAL AND FACTUAL SUFFICIENCY
In his third issue, Appellant argues that, even assuming the evidence upon
which the experts relied was reliable, the evidence at trial was legally and factually
insufficient to support the jury’s finding beyond a reasonable doubt that Terry has
a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence. In particular, Appellant argues that because Dr. Self testified that
the word “likely” is not defined in the statute but means “beyond a mere possibility
of harm[,]” the jury’s verdict means “the jury found[] that Mr. Terry has a
behavioral abnormality because it is ‘beyond a mere possibility’ that Mr. Terry will
offend.”
33 Under a legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether a rational trier of fact could find,
beyond a reasonable doubt, the elements required for commitment under the SVP
statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont
2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in
the testimony, weigh the evidence, and draw reasonable inferences from basic facts
to ultimate facts. Id. at 887. Under a factual sufficiency review, we weigh the
evidence to determine “whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial.” Day, 342 S.W.3d at 213.
We have previously concluded in other SVP civil commitment appeals that
Dr. Self’s working definition of likely being defined as “more than a mere
possibility” does not render the evidence in an SVP civil commitment case legally
or factually insufficient. See In re Commitment of Muzzy, No. 09-13-00496-CV,
2014 Tex. App. LEXIS 4750, at **5-7 (Tex. App.—Beaumont May 1, 2014, pet.
denied) (mem. op.). In Muzzy we stated:
. . . First, Muzzy complains of the experts’ definitions of “likely.” Self defined “likely” as “[m]ore than a mere possibility.” [Another expert] explained that the meaning of “likely” is “up to each individual evaluator or clinician[,]” but that he believed “likely” to mean “a pretty good chance something is going to happen.” Muzzy argues that both these definitions fail to “comport with the
34 constitutional requirements for involuntary civil commitment.” However, this Court has rejected the notion that the term “likely” has a precise definition of the type associated with any certain assigned percentage of risk. In re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—Beaumont 2012, pet. denied). Additionally, the experts’ testimony is not insufficient merely because the term “likely” is not defined by the statute or case law. In re Commitment of Kirsch, No. 09-08-00004-CV, 2009 Tex. App. LEXIS 5436, at *17 (Tex. App.— Beaumont July 16, 2009, pet. denied) (mem. op.). Nor does an expert’s explanation of the term “likely,” in and of itself, render the evidence insufficient to support a jury’s finding that a person suffers from a behavioral abnormality. Id. at *19. Rather, an expert’s definition merely goes to the weight that the jury might give the expert’s testimony. Id.
Id.; see also Rushing, 2012 Tex. App. LEXIS 8140, at **4-5 (“Noticeably absent
from the statute describing a sexually violent predator is any requirement that the
person’s behavioral abnormality make the person more likely than not to engage in
a predatory act of sexual violence.”) (emphasis in original).
In this case, Dr. Self testified that Terry suffers from a behavioral
abnormality that predisposes him to engage in a predatory act of sexual violence.
Dr. Self diagnosed Terry with pedophilic disorder and explained that pedophilia is
a chronic condition that does not go away. Self also characterized Terry as having
an attitude that was tolerant of sexual assault, as denying his urges, and as
rationalizing his offenses and blaming his victims. Self also diagnosed Terry with
antisocial traits, personality disorder not otherwise specified, and
methamphetamine and alcohol dependence in remission in a controlled
35 environment. Self explained that substance abuse increases the risk of reoffending
because drugs disinhibit and make a person “more aggressive, more impulsive and
raise the risk through the roof.” According to Dr. Self, Terry’s history of
employment instability and his lack of social support put Terry at a higher risk of
relapse. Self further explained that the fact that Terry had not had any sex offender
treatment also increases Terry’s risk for reoffending. Terry himself testified that he
“[s]ometimes[]” is attracted to female children. He also agreed he is a sex offender
and needs sex offender treatment, but he does not believe he is at risk of
reoffending. Terry also agreed he has possessed a prohibited photograph of a
partially-clad woman while in prison.
The jury was entitled to infer Terry’s current dangerousness from the
evidence presented, including the experts’ testimony, Terry’s past behavior, and
Terry’s own testimony. See In re Commitment of Wilson, No. 09-08-00043-CV,
2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—Beaumont Aug. 27, 2009, no
pet.) (mem. op.). As the sole judge of the weight and credibility of the evidence,
the jury could reasonably conclude that Terry suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
See In re Commitment of Lowe, No. 09-14-00098-CV, 2014 Tex. App. LEXIS
10034, at *6 (Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.); see also
36 Wilson, 2009 Tex. App. LEXIS 6714, at *14; Mullens, 92 S.W.3d at 887. We
conclude that the jury’s verdict is supported by legally sufficient evidence and does
not reflect a risk of injustice that would compel ordering a new trial. See Day, 342
S.W.3d at 213. We overrule Terry’s third issue on appeal.
Having overruled all Terry’s issues on appeal, we affirm the trial court’s
judgment and order of civil commitment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on July 14, 2016 Opinion Delivered December 15, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.