In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00001-CV ____________________
IN RE COMMITMENT OF PATRICK DEWAYNE SMITH
_______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-07-07543-CV ________________________________________________________ _____________
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit Patrick Dewayne Smith
as a sexually violent predator under the Sexually Violent Predator Act. See Tex.
Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP
statute). A jury found Smith suffers from a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence. Id. § 841.003(a). The trial
court entered a final judgment and an order of civil commitment under the SVP
statute. Smith raises six issues on appeal. We affirm the trial court‘s judgment.
1 SUBJECT MATTER JURISDICTION
In his first issue, Smith contends the trial court lacked subject matter
jurisdiction because Smith did not have an ―anticipated release date‖ within the
meaning of section 841.021 of the SVP statute. See id. § 841.021(a). The SVP
statute ―does not distinguish between those anticipated to be released on parole and
those anticipated to be released unconditionally as a result of completion of their
sentences.‖ In re Commitment of Evers, No. 09-11-00430-CV, 2012 WL 6213508,
at *2 (Tex. App.—Beaumont Dec. 13, 2012, pet. denied). Smith argues his case
will not ripen until he has been released unconditionally, but ―[w]hether the person
is convicted of another offense after the State files a petition seeking civil
commitment . . . or whether a person is released on parole or released
unconditionally, there is nothing in [the SVP statute] that indicates the Legislature
intended to divest the trial court of jurisdiction.‖ Id. at *5. The trial court obtained
subject matter jurisdiction over the civil commitment proceeding. We overrule
issue one.
PROTECTIVE ORDER
In issue two, Smith contends the trial court erred by allowing the State to
refuse to answer certain requests for admission based upon a claim of attorney
work product. We review the trial court‘s ruling for an abuse of discretion. In re
2 Commitment of Perez, No. 09-12-00132-CV, 2013 WL 772842, at *5 (Tex. App.—
Beaumont Feb. 28, 2013, pet. denied) (mem. op.).
The trial court granted a protective order as to the following requests for
admission, each of which the State challenged as violating the work product
privilege:
The psychological assessment tools used by the experts for the State of Texas are unable to predict if a particular individual, such as the Respondent, is likely to commit a predatory act of sexual violence. The State of Texas has no evidence that the primary purpose of Respondent‘s qualifying sexual offenses was victimization. The psychological assessment tools used by the experts for the State of Texas are unable to predict if a particular individual, such as the Respondent, is likely to commit a future sexual act with the primary purpose of victimization. The psychiatrist(s) listed as an expert by the State of Texas is not licensed in forensic psychology. The psychiatrist(s) listed as an expert by the State of Texas is not board certified in forensic psychology. The Minnesota Sex Offender Screening Tool — Revised (MnSOST-R), used by the State‘s experts, is based on a sample size of less than 300 subjects. The MnSOST-R has been found to be an invalid tool to be used to measure rates of re-arrest. Upon release from custody, the Respondent will be required to register as a sex offender. The Respondent‘s entire adult criminal record is contained in the Respondent‘s DPS and FBI records, provided by the State of Texas to the State Counsel for Offenders. The State‘s experts cannot give a diagnosis of Paraphilia for the Respondent.
3 The Multidisciplinary Team Psychologist did not give any diagnoses for sexual deviant illness to the Respondent. V codes are not actual diagnosis. The State did not offer the Respondent an opportunity to participate in Sex Offender Treatment during the first five years of his incarceration. The State did not offer the Respondent an opportunity to participate in Sex Offender Treatment during years six through ten of his incarceration. The State did not offer the Respondent an opportunity to participate in Sex Offender Treatment during years ten through twenty of his incarceration. The State did not offer the Respondent an opportunity to participate in Substance Abuse Treatment during the first five years of his incarceration. The State assigned the Respondent a minimum custody status during his incarceration at the Texas Department of Criminal Justice. Individuals civilly committed pursuant to Chapter 841 of the Texas Health & Safety Code have opportunities to engage in predatory acts of sexual violence. The conduct disorder testified to by State‘s Experts does not meet the requirements listed in the DSM-IV-TR. Respondent has protective factors that lower his rate of re- offending. Respondent has marketable job skills. Respondent has not had an opportunity to complete the Sex Offender Treatment Program prior to the filing of this lawsuit. The State is seeking to civilly commit Respondent prior to Respondent completing the Sex Offender Treatment Program. Research has established that Sex Offender Treatment lowers a person‘s risk to re-offend. Respondent will be on parole for 7 years after his release from the Texas Department of Criminal Justice.
4 The State argued that any information that counsel for the Special
Prosecution Unit gained about a specific case is made in anticipation of litigation
or trial. On appeal the State argues its responses would require it to divulge work
product because only counsel for the Special Prosecution Unit is available to
answer discovery. The work product rule shelters an attorney‘s mental processes,
conclusions, and legal theories so the lawyer can analyze and prepare the case. In
re Bexar Cnty. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007).
The State presents no argument that the matters inquired into seek counsel‘s
mental impressions, material prepared by counsel in anticipation of litigation, or
communications made in anticipation of trial. See Tex. R. Civ. P. 192.5. Instead,
the State appears to be arguing that answers to requests for admission are work
product because the responses would be prepared by a lawyer. Like drafting
pleadings, preparing discovery responses constitutes the practice of law. See, e.g.,
Tex. Gov‘t Code Ann. § 81.101(a) (West 2013) (―[T]he ‗practice of law‘ means
the preparation of a pleading or other document incident to an action or special
proceeding or the management of the action or proceeding on behalf of a client
before a judge in court as well as a service rendered out of court[.]‖). The Special
Prosecution Unit does not, as the State argues, possess a unique status. The State
is not exempt from the rules of civil procedure but it enjoys the same procedural
5 rights as do other litigants. See generally Lowe v. Tex. Tech Univ., 540 S.W.2d
297, 301 (Tex. 1976) (considering statutory provision stating ―[n]o admission,
agreement or waiver, made by the Attorney General, in any action or suit in which
the State is a party, shall prejudice the rights of the State.‖).
Considering the trial court ordered the State to answer other requests for
admissions that are not at issue here, it is unlikely that the trial court issued the
protective order on the ground asserted by the State on appeal. The State does not
present any other reason why its responses would be work product. The State
argues that the attorneys for the Special Prosecution Unit have no knowledge of the
person referred for commitment until the referral is made, and that accordingly any
knowledge counsel acquires results from the attorney‘s work on the case. But the
State does not explain how it is possible for the State to prosecute, incarcerate, and
evaluate persons for commitment without obtaining knowledge, through its agents
and employees, of the factual matters referred to in the requests for admission.
The work product privilege ―does not extend to facts the attorney may acquire.‖
Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 n.2 (Tex.
1991).1 In such case, the State could make a reasonable inquiry and respond to the
1 The State argues cases cited by Smith concerning the production of documents are inapposite in a case concerning requests for admission. The issue here is the scope of the privilege, not the scope of discovery. 6 requests. See generally Tex. R. Civ. P. 198.2(b); see also Tex. Health & Safety
Code Ann. § 841.146(b) (―[A] civil commitment proceeding is subject to the rules
of procedure and appeal for civil cases.‖). The trial court erred in granting a
protective order.
Error in granting a protective order will result in the reversal of the judgment
only if the error probably caused the rendition of an improper judgment or
prevented the appellant from properly presenting the case on appeal. Perez, 2013
WL 772842, at *6; see Tex. R. App. P. 44.1(a). In Perez, we held that any error
was harmless because Perez was able to obtain discovery through other means.
Perez, 2013 WL 772842, at *6. As was the case in Perez, in Smith‘s case the trial
court‘s docket control order required production of the Multi-Disciplinary Team
referral packet and Smith deposed the State‘s experts prior to trial. Smith had
access to other sources to obtain the information he sought in his request for
admissions; consequently any error in the trial court‘s decision to protect the State
from responding to requests for admissions did not cause the rendition of an
improper judgment or prevent Smith from presenting his case on appeal. See Tex.
R. App. P. 44.1(a). We overrule issue two.
7 JURY INSTRUCTION
In his third issue Smith complains the broad-form jury question allowed the
jury to find Smith to be a sexually violent predator without also finding that he has
serious difficulty in controlling his behavior. The jury charge asked the jury, ―Do
you find beyond a reasonable doubt that [Smith] is a sexually violent predator?‖
The trial court included in the charge the definition of ―sexually violent predator‖
found in the SVP statute. See Tex. Health & Safety Code Ann. § 841.003(a). The
jury charge defined ―‗behavioral abnormality‘‖ as 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.‖ See id. §
841.002(2).2
Smith requested a jury charge that would have required the jury to find
separately whether Smith (1) is a repeat sexually violent offender, (2) who suffers
from a behavioral abnormality, (3) that makes him likely to engage in a predatory
2 After Smith‘s trial, the Supreme Court noted that the statutory definition of ―behavioral abnormality‖ ―might more clearly be written: ‗Behavioral abnormality‘ means a congenital or acquired predisposition, due to one‘s emotional or volitional capacity, to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.‖ In re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 81 U.S.L.W. 3658 (U.S. May 28, 2013) (No. 12-9719). 8 act of sexual violence. The trial court submitted the jury question this Court held
should be submitted in civil commitment cases under the SVP statute. In re
Commitment of Myers, 350 S.W.3d 122, 129 (Tex. App.—Beaumont 2011, pet.
denied). We have repeatedly held that the trial court may within its discretion
submit the controlling issue in a single question and instruct the jury regarding
―behavioral abnormality‖ in a definition. In re Commitment of Bath, No. 09-11-
00559-CV, 2012 WL 3860631, at *5 (Tex. App.—Beaumont Sept. 6, 2012, no
pet.) (mem. op.); In re Commitment of Elkins, No. 09-10-00557-CV, 2012 WL
2849164, at *3 (Tex. App.—Beaumont July 12, 2012, no pet.) (mem. op.); In re
Commitment of Campbell, No. 09-11-00407-CV, 2012 WL 2451620, at *7-8 (Tex.
App.—Beaumont June 28, 2012, pet. denied) (mem. op.); In re Commitment of
Reed, No. 09–11–00484–CV, 2012 WL 1072255, at *3 (Tex. App.—Beaumont
Mar. 29, 2012, no pet.) (mem. op.).
Smith argues he cannot present his case on appeal because under the
submitted charge the jury‘s answer could have reflected the jury‘s belief that Smith
had a behavioral abnormality that caused him to be likely to reoffend sexually, or it
could have reflected a belief that Smith had a behavioral abnormality, from which
it necessarily follows that he is likely to reoffend sexually. In Perez, we held the
trial court did not err in refusing to ask the jury separately whether the person has a
9 behavioral abnormality and whether the behavioral abnormality makes the person
likely to engage in a predatory act of sexual violence. Perez, 2013 WL 772842, at
*8. ―The condition and predisposition are one and the same[,]‖ and ―whether a
person ‗suffers from a behavioral abnormality that makes the person likely to
engage in a predatory act of sexual violence‘ is a single, unified issue.‖ Bohannan,
388 S.W.3d at 302, 303.
Smith‘s requested jury charge also included an instruction that the phrase
―‗affecting a person‘s emotional or volitional capacity‘ means serious difficulty in
controlling behavior.‖ The jury charge defined the terms that are defined in the
SVP statute. ―When a case is governed by a statute, as it is here, the jury charge
should track the statutory language as closely as possible.‖ In re Commitment of
Hill, No. 09-11-00593-CV, 2013 WL 772834, at *15 (Tex. App.—Beaumont Feb.
28, 2013, pet. denied) (mem. op.). Broad-form submission tracking the SVP statute
accompanied by the statutory definition of ―behavioral abnormality‖ in the charge
―entails a determination that he has ‗serious difficulty controlling behavior.‘‖ See
In re Commitment of Almaguer, 117 S.W.3d 500, 505-06 (Tex. App.—Beaumont
2003, pet. denied) (quoting In re Commitment of Browning, 113 S.W.3d 851, 862-
63 (Tex. App.—Austin 2003, pet. denied)). We overrule issue three.
10 LEGAL AND FACTUAL SUFFICIENCY
In issues four and five, Smith argues that the evidence is legally and
factually insufficient to support a finding that Smith suffers from a behavioral
abnormality. Under 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). 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). The statute defines ―‗behavioral abnormality‘‖ as ―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).
Because the SVP statute employs a beyond-a-reasonable-doubt burden of
proof, when reviewing the legal sufficiency of the evidence, we must assess all the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could find, beyond a reasonable doubt, the elements required
for commitment under the statute. In re Commitment of Mullens, 92 S.W.3d 881,
885 (Tex. App.—Beaumont 2002, pet. denied); see also In re Commitment of
11 Brown, No. 09-10-00589-CV, 2012 WL 4466348, at *1 (Tex. App.—Beaumont
Sept. 27, 2012, pet. denied) (mem. op.). The trier of fact, not the appellate court,
fairly resolves conflicts in the testimony, weighs the evidence, and draws
reasonable inferences from basic facts to ultimate facts. Mullens, 92 S.W.3d at
887; Myers, 350 S.W.3d at 130. In a factual sufficiency review of a SVP
commitment case, we must weigh the evidence to determine whether a verdict that
is supported by legally sufficient evidence nevertheless reflects a risk of injustice
that compels ordering a new trial. In re Commitment of Day, 342 S.W.3d 193, 213
(Tex. App.—Beaumont 2011, pet. denied); Myers, 350 S.W.3d at 130.
―[P]roof of serious difficulty in controlling behavior‖ is required in order to
civilly commit a defendant under a SVP statute. See Kansas v. Crane, 534 U.S.
407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); see also Almaguer, 117
S.W.3d at 505. The inability to control behavior ―‗must be sufficient to distinguish
the dangerous sexual offender whose serious mental illness, abnormality, or
disorder subjects him to civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case.‘‖ See Almaguer, 117 S.W.3d at 504
(quoting Kansas, 534 U.S. at 413). Smith argues the evidence is legally
insufficient to show that he has serious difficulty controlling his behavior, such that
he displays an emotional or volitional impairment. He complains the diagnostic
12 criteria described by the State‘s testifying psychiatrist, Dr. Michael Arambula, do
not relate to a person‘s ability to control his behavior, and the high risk of
recidivism indicated by the actuarial instruments applied by the State‘s testifying
psychologist, Dr. Jason Dunham, fail to distinguish Smith from a ―‗dangerous but
typical recidivist‘‖ as opposed to a sexually violent predator.
Dr. Jason Dunham, a forensic psychologist, testified that Smith ―suffers
from sexual deviance as well as a psychopathic personality disorder[]‖ that place
him at high risk to commit a sexual offense. According to Dr. Dunham, Smith‘s
behavioral abnormality was revealed through his commission of sexual assaults
while living in the community and by his continued victimization of women while
he was imprisoned by repeatedly exposing himself and masturbating in front of
female guards. While serving his prison sentence for the sexual assaults, Smith was
disciplined thirty-one times for ―masturbating toward female correction officers . .
. so that the officer sees it.‖ That behavior is a criminal offense, indecent exposure.
Smith offended against approximately twenty different victims in five prison units,
with incidents recorded in 1996, 1997, 2003, 2004, 2007, and the most recent
having occurred in 2010, approximately one year before the trial. In Dr. Dunham‘s
opinion, Smith‘s behavior in prison shows he has difficulty controlling his
behavior.
13 Dr. Michael Arambula, a forensic psychiatrist, testified that in determining
whether a person has a behavioral abnormality it is important to look at how the
person adjusts in prison. A person‘s failure to conform his behavior in the
structured prison environment indicates his behavior will be worse in an
environment lacking external controls. Smith‘s sexually aggressive actions toward
female correction officers over a long period of time indicate his sexual deviance
has been present for many years. Dr. Arambula stated that Smith‘s behavior while
in prison showed that he has had difficulty controlling his behavior. In Dr.
Arambula‘s opinion, Smith has a behavioral abnormality that affects his volitional
or emotional capacity that predisposes him to commit a sexually violent offense to
the extent that he is a menace to the health and safety of another person.
Smith argues that that ―[a]t most, the State‘s evidence showed that Appellant
committed two rapes in the past and that there is a decent chance that he will do it
again.‖ ―Serious difficulty controlling behavior can be inferred from an
individual‘s past behavior, his own testimony, and the experts‘ testimony.‖ In re
Commitment of Washington, No. 09-11-00658-CV, 2013 WL 2732569, at *6 (Tex.
App.—Beaumont June 13, 2013, no pet. h.) (mem. op.). The jury could accept as
credible the experts‘ testimony that Smith‘s sexual offenses and his behavior in
prison demonstrate that he has serious difficulty controlling his behavior. Viewing
14 the evidence in the light most favorable to the jury‘s verdict, a rational jury could
have found beyond a reasonable doubt that Smith has a behavioral abnormality that
makes him likely to commit a predatory act of sexual violence. See Mullens, 92
S.W.3d at 887.
Smith argues the evidence is factually insufficient because Dr. Dunham
stated the actuarial tests placed Smith at a high risk of recidivism but when the
evidence is viewed in a neutral light Dr. Dunham could not demonstrate that
Smith‘s risk is due to a lack of control. During cross-examination, Dr. Dunham
conceded that the diagnostic manual states that no diagnosis in and of itself
indicates whether a person will be able to control future behavior. He also stated
that the actuarial tests are not designed to account for a person‘s ability to follow
rules, but Dr. Dunham added that because disciplinary history and commission of
sexual offenses in prison are indexed, the actuarial tests could be used for that
purpose. Moreover, Dr. Dunham explained how Smith‘s offenses and prison
behavior supported the high risk of recidivism reflected in his application of the
actuarial instruments. Weighing all the evidence, the verdict does not reflect a risk
of injustice that would compel ordering a new trial. See Day, 342 S.W.3d at 213.
We overrule issues four and five.
15 CONSTITUTIONAL CHALLENGE
In a supplemental issue added after initial briefing in this appeal. Smith
contends that ―[t]he Texas Supreme Court‘s recent construction of the SVP civil
commitment statute renders the statute facially unconstitutional under the
Fourteenth Amendment‘s due process clause.‖ Smith argues the Texas Supreme
Court ―has essentially eliminated the requirement of a mental illness[]‖ in a civil
commitment case. See generally Bohannan, 388 S.W.3d at 306 (addressing the
relevance of a ―medical diagnosis‖ in determining whether a person is a sexually
violent predator). The United States Supreme Court denied Bohannan‘s petition for
certiorari after Smith filed his supplemental brief. See Bohannan, 81 U.S.L.W.
3658. Rejecting similar interpretations of Bohannan in other civil commitment
cases, this Court has held ―the Supreme Court in Bohannan did not ‗change the
statute or render it unconstitutional.‘‖ Washington, 2013 WL 2732569, at *1
(quoting In re Commitment of Anderson, 392 S.W.3d 878, 885 (Tex. App.—
Beaumont 2013, pet. denied)). We overrule Smith‘s supplemental issue and affirm
the trial court‘s judgment.
AFFIRMED.
16 ________________________________ CHARLES KREGER Justice
Submitted on March 19, 2013 Opinion Delivered August 15, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.