In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00022-CV ________________
IN RE JONATHAN IRVING HITT
________________________________________________________________________
Original Proceeding 435th District Court of Montgomery County, Texas Trial Cause No. 09-10-09978-CV ________________________________________________________________________
MEMORANDUM OPINION
Jonathan Irving Hitt (“Hitt”), who is civilly committed to treatment as a
sexually violent predator, filed a Notice of Appeal requesting relief from an order
dated January 10, 2022, signed by the 435th District Judge of Montgomery County,
Texas.1 In the January 2022 order, the judge denied Hitt’s First Amended
Unauthorized Petition for Release, stating that Hitt’s biennial review showed that
1 Hitt was found to be a sexually violent predator following a trial in a civil commitment proceeding in April 2010. See In re Commitment of Hitt, No. 09-10- 00295-CV, 2011 WL 5988024 (Tex. App.—Beaumont Dec.1, 2011 pet. denied) (mem. op.). 1 “although progress was being made, the court did not find that Petitioner’s
behavioral abnormality had changed to the extent that he was no longer likely to
engage in a predatory act of sexual violence.” Hitt had argued that he “no longer has
a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence” and, as such, should be released “from the custody and supervision of the
Texas Civil Commitment Office.” The order stated that Hitt asserts the same
argument as was “considered and rejected” in his biennial review. 2 Hitt subsequently
filed a Notice of Appeal. In his initial brief to this Court, Hitt argued his unauthorized
petition for release was not frivolous, when coupled with the uncontroverted expert
report stating that he no longer suffers from a behavioral abnormality. Hitt argues
that this court’s opinion in Keen provides a legal and factual basis for his relief
sought. 3 In November 2022, following this Court’s opinion in Welsh, Hitt filed a
supplemental brief agreeing that this Court lacks jurisdiction to hear this case as an
original Petition for Review, but requested his petition be converted to a petition for
writ of mandamus. 4 Hitt argues in his supplemental brief that the trial court abused
2 See Tex. Health & Safety Code Ann. § 841.123(b) (requiring the trial court to review and issue a ruling on a sexually violent predator’s unauthorized petition for release). 3 In re Commitment of Keen, 462 S.W.3d 524 (Tex. App.—Beaumont 2015, no pet.), overruled by In re Commitment of Welsh, 661 S.W.3d 861, 867 (Tex. App— Beaumont 2022, pet. denied). This Court overruled Keen after Hitt filed his brief. 4 In re Commitment of Welsh, 661 S.W.3d 861, 866 (Tex. App—Beaumont 2022, pet. denied) (“No statute specifically authorizes a party to appeal from a trial court’s ruling denying an unauthorized petition for release.” But explaining that the 2 its discretion by denying his relief in light of a favorable expert report and the
expert’s opinion that Hitt “no longer meets the legal standard of having a behavioral
abnormality[.]” As Hitt’s issues have not changed in his original brief and
supplemental brief, and considering our opinion in Welsh, and the Supreme Court of
Texas’s directive in CMH Homes v. Perez, we will grant Hitt’s request to consider
his petition as a petition for writ of mandamus. See In re Commitment of Welsh, 661
S.W.3d 861 (Tex. App—Beaumont 2022, pet. denied); CMH Homes v. Perez, 340
S.W.3d 444, 452 (Tex 2011) (explaining the appellant “invoked the court of appeals’
appellate jurisdiction by specifically requesting that its appeal be treated as a
mandamus petition.”); In re Commitment of Renshaw, 672 S.W.3d 426, 427-28 (Tex.
2023) (citing CMH Homes to direct the court of appeals to consider the appellant’s
habeas corpus as a petition for writ of mandamus); In re Commitment of Black, 594
S.W.3d 590, 594 (Tex. App.—San Antonio 2019, no pet.).
Standard of Review
We may issue a writ of mandamus to remedy a clear abuse of discretion by
the trial court when the relator lacks an adequate remedy by appeal. See In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). “A trial
petitioner could seek mandamus relief that the trial court abused its discretion by denying his unauthorized petition as frivolous). 3 court clearly abuses its discretion if ‘it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.’” Walker, 827
S.W.2d at 839. A trial court also abuses its discretion if it fails to correctly analyze
or apply the law, because a trial court has no discretion in determining what the law
is or applying it to the facts. See In re Prudential, 148 S.W.3d at 135.
Unauthorized Petition for Release
Hitt is not entitled to mandamus relief. As elaborated on below, the trial court,
when ruling on Hitt’s unauthorized petition for release, did not abuse its discretion
by concluding that the psychologist’s report Hitt filed with his unauthorized petition
for release, in conjunction with its review of Hitt’s case, failed to raise an issue of
material fact as to whether Hitt is no longer likely to engage in a predatory act of
sexual violence.
The report Hitt attached to both his unauthorized petition for release and his
petition for mandamus was prepared by Dr. Baron Crespo, a chief psychologist of
the Modern Psychological Network, whom the Texas Civil Commitment Office
(TCCO) retained for Hitt’s Biennial Examination Review. The report provides that
Crespo graduated with M.S. and Psy.D. in Clinical Psychology and a post doctorate
in Clinical Psychopharmacology. The report states that Crespo is licensed to practice
in Alabama, Texas, and Wisconsin, and Crespo is certified as a Sex Offender
Treatment Provider and the Association of State and Provincial Psychology Boards.
4 The report notes that Hitt was seen for a biennial examination on June 1, 2021, and
that Hitt consented to the examination. Crespo’s report states that Hitt was found to
be a sexually violent predator, and the report notes that Hitt was civilly committed
in 2010. Crespo states he conducted a one-hour, in-person, interview with Hitt,
reviewed Hitt’s TCCO’s records and file, including previous biennial reviews,
polygraphs and a current penile plethysmograph. The report then states that Crespo
weighed Hitt’s risk and protective factors. As to Crespo’s observations, his report
states:
Here, Examinee does not meet the standard of for civil commitment under Texas Health and Safety Code, Title 11, Chapter §841 because he no longer has an increased risk to commit a sexually violent offense, because:
• Emotionally, over the last five years, Examinee made meaningful treatment progress and reached Tier Levcl-4. Examinee’s levels of psychopathy was low during this evaluation. He showed no symptoms of psychosis, severe depression, severe anxiety or substance abuse.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00022-CV ________________
IN RE JONATHAN IRVING HITT
________________________________________________________________________
Original Proceeding 435th District Court of Montgomery County, Texas Trial Cause No. 09-10-09978-CV ________________________________________________________________________
MEMORANDUM OPINION
Jonathan Irving Hitt (“Hitt”), who is civilly committed to treatment as a
sexually violent predator, filed a Notice of Appeal requesting relief from an order
dated January 10, 2022, signed by the 435th District Judge of Montgomery County,
Texas.1 In the January 2022 order, the judge denied Hitt’s First Amended
Unauthorized Petition for Release, stating that Hitt’s biennial review showed that
1 Hitt was found to be a sexually violent predator following a trial in a civil commitment proceeding in April 2010. See In re Commitment of Hitt, No. 09-10- 00295-CV, 2011 WL 5988024 (Tex. App.—Beaumont Dec.1, 2011 pet. denied) (mem. op.). 1 “although progress was being made, the court did not find that Petitioner’s
behavioral abnormality had changed to the extent that he was no longer likely to
engage in a predatory act of sexual violence.” Hitt had argued that he “no longer has
a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence” and, as such, should be released “from the custody and supervision of the
Texas Civil Commitment Office.” The order stated that Hitt asserts the same
argument as was “considered and rejected” in his biennial review. 2 Hitt subsequently
filed a Notice of Appeal. In his initial brief to this Court, Hitt argued his unauthorized
petition for release was not frivolous, when coupled with the uncontroverted expert
report stating that he no longer suffers from a behavioral abnormality. Hitt argues
that this court’s opinion in Keen provides a legal and factual basis for his relief
sought. 3 In November 2022, following this Court’s opinion in Welsh, Hitt filed a
supplemental brief agreeing that this Court lacks jurisdiction to hear this case as an
original Petition for Review, but requested his petition be converted to a petition for
writ of mandamus. 4 Hitt argues in his supplemental brief that the trial court abused
2 See Tex. Health & Safety Code Ann. § 841.123(b) (requiring the trial court to review and issue a ruling on a sexually violent predator’s unauthorized petition for release). 3 In re Commitment of Keen, 462 S.W.3d 524 (Tex. App.—Beaumont 2015, no pet.), overruled by In re Commitment of Welsh, 661 S.W.3d 861, 867 (Tex. App— Beaumont 2022, pet. denied). This Court overruled Keen after Hitt filed his brief. 4 In re Commitment of Welsh, 661 S.W.3d 861, 866 (Tex. App—Beaumont 2022, pet. denied) (“No statute specifically authorizes a party to appeal from a trial court’s ruling denying an unauthorized petition for release.” But explaining that the 2 its discretion by denying his relief in light of a favorable expert report and the
expert’s opinion that Hitt “no longer meets the legal standard of having a behavioral
abnormality[.]” As Hitt’s issues have not changed in his original brief and
supplemental brief, and considering our opinion in Welsh, and the Supreme Court of
Texas’s directive in CMH Homes v. Perez, we will grant Hitt’s request to consider
his petition as a petition for writ of mandamus. See In re Commitment of Welsh, 661
S.W.3d 861 (Tex. App—Beaumont 2022, pet. denied); CMH Homes v. Perez, 340
S.W.3d 444, 452 (Tex 2011) (explaining the appellant “invoked the court of appeals’
appellate jurisdiction by specifically requesting that its appeal be treated as a
mandamus petition.”); In re Commitment of Renshaw, 672 S.W.3d 426, 427-28 (Tex.
2023) (citing CMH Homes to direct the court of appeals to consider the appellant’s
habeas corpus as a petition for writ of mandamus); In re Commitment of Black, 594
S.W.3d 590, 594 (Tex. App.—San Antonio 2019, no pet.).
Standard of Review
We may issue a writ of mandamus to remedy a clear abuse of discretion by
the trial court when the relator lacks an adequate remedy by appeal. See In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). “A trial
petitioner could seek mandamus relief that the trial court abused its discretion by denying his unauthorized petition as frivolous). 3 court clearly abuses its discretion if ‘it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.’” Walker, 827
S.W.2d at 839. A trial court also abuses its discretion if it fails to correctly analyze
or apply the law, because a trial court has no discretion in determining what the law
is or applying it to the facts. See In re Prudential, 148 S.W.3d at 135.
Unauthorized Petition for Release
Hitt is not entitled to mandamus relief. As elaborated on below, the trial court,
when ruling on Hitt’s unauthorized petition for release, did not abuse its discretion
by concluding that the psychologist’s report Hitt filed with his unauthorized petition
for release, in conjunction with its review of Hitt’s case, failed to raise an issue of
material fact as to whether Hitt is no longer likely to engage in a predatory act of
sexual violence.
The report Hitt attached to both his unauthorized petition for release and his
petition for mandamus was prepared by Dr. Baron Crespo, a chief psychologist of
the Modern Psychological Network, whom the Texas Civil Commitment Office
(TCCO) retained for Hitt’s Biennial Examination Review. The report provides that
Crespo graduated with M.S. and Psy.D. in Clinical Psychology and a post doctorate
in Clinical Psychopharmacology. The report states that Crespo is licensed to practice
in Alabama, Texas, and Wisconsin, and Crespo is certified as a Sex Offender
Treatment Provider and the Association of State and Provincial Psychology Boards.
4 The report notes that Hitt was seen for a biennial examination on June 1, 2021, and
that Hitt consented to the examination. Crespo’s report states that Hitt was found to
be a sexually violent predator, and the report notes that Hitt was civilly committed
in 2010. Crespo states he conducted a one-hour, in-person, interview with Hitt,
reviewed Hitt’s TCCO’s records and file, including previous biennial reviews,
polygraphs and a current penile plethysmograph. The report then states that Crespo
weighed Hitt’s risk and protective factors. As to Crespo’s observations, his report
states:
Here, Examinee does not meet the standard of for civil commitment under Texas Health and Safety Code, Title 11, Chapter §841 because he no longer has an increased risk to commit a sexually violent offense, because:
• Emotionally, over the last five years, Examinee made meaningful treatment progress and reached Tier Levcl-4. Examinee’s levels of psychopathy was low during this evaluation. He showed no symptoms of psychosis, severe depression, severe anxiety or substance abuse. Examinee’s mental status was normal, and his mental health has been stable.
• Behaviorally, Examinee showed no history of impulsivity, no serious institutional rule violations, or sexual acting out.
• Cognitively, Examinee showed no deception in the last polygraphs which examined criminal issues, supervision issues, & sexual treatment issues. Examinee’s best estimate of intelligence was average, and he showed no issues with cognitive problem-solving skills.
• Sexually, Examinee’s risk to sexually reoffend was deemed average during this evaluation. Examinee’s dynamic needs were on the low
5 end of moderate. Examinee showed no sexual deviant responses in the last two penile plethysmographs (PPG).
• Socially, Examinee has approved collateral contacts and social support by family in the community. He is current on his cost recovery fees. He had no history of inappropriate behaviors in the last five years, neither with staff nor residents. (emphasis original)
The entire analysis Crespo included in his report states:
Therefore, based upon my six-stage methodology described above, I can state with a reasonable degree of scientific certainty that Examinee’s probability to commit a sexually violent offense has decreased to the extent that he no longer meets the legal standard of having a behavioral abnormality. (emphasis original)
The report from Kristina Luera, M.A., which was prepared for Hitt’s biennial
review and is dated June 23, 2021, and which would be in the records Crespo says
he reviewed, notes that Hitt was initially assessed at level 4, then was demoted to
level 2, then he progressed to level 3, then he progressed to level 4, then he was
demoted from level 4 to level 2, then he progressed back to level 3 before being
assessed again at level 4. So, the records show his assessment levels have gone up
and down over the years. And, other than the report from Crespo, all other
professionals have opined that Hitt still suffers from a behavioral abnormality as
defined under applicable Texas law.
Additionally, the mandamus record shows that the trial court signed a biennial
review order on August 25, 2021, in which the same expert report was reviewed. See
Tex. Health & Safety Code Ann. §§ 841.101-.102. In its order denying Hitt’s
6 unauthorized petition for release, the trial court found, “[t]he Court has reviewed the
file and been advised that JONATHAN IRVING HITT is making some progress in
behavior modification. However, there is no evidence submitted to the Court to date
to suggest that sex offender treatment of JONATHAN IRVING HITT has resulted
in his behavioral abnormality having changed to the extent that JONATHAN
IRVING HITT is no longer likely to engage in a predatory act of sexual violence.”
The mandamus record also shows that the trial court signed an order denying Hitt’s
unauthorized petition for release from civil commitment. See Tex. Health & Safety
Code Ann. § 841.123.
The trial court did not abuse its discretion by denying Hitt’s motion. As this
Court has held previously, the expert’s report and opinion are to “aid” in the
assessment of Hitt’s civil commitment. See In re Commitment of Alvarado, No. 09-
13-00217-CV, 2014 WL 1285136, at **2-3, (Tex. App.—Beaumont Mar. 27, 2014,
pet. denied) (mem. op.); see also Tex. Health & Safety Code Ann. § 841.023(a) (The
plain language of the statute states that “[t]o aid in the assessment, the department
shall use an expert to examine the person[,]” and “[t]he expert shall make a clinical
assessment ... to aid the department in its assessment.”). The expert report is not
dispositive. We cannot say that the trial court abused its discretion when it denied
Hitt’s motion. Id.
7 A writ of mandamus may issue against a district judge to compel the
performance of a ministerial act or duty, or to correct a clear abuse of discretion
when no adequate remedy by appeal exists. In re Prudential, 148 S.W.3d at 135-36;
Walker, 827 S.W.2d at 839-40. After reviewing the entire record before us, we
conclude that the relator has not shown that he is entitled to the relief sought in his
petition for a writ of mandamus. Accordingly, we deny the petition for a writ of
mandamus.
PETITION DENIED.
PER CURIAM
Submitted on November 14, 2023 Opinion Delivered March 7, 2024
Before Golemon, C.J., Johnson and Wright, JJ.