In Re: The Commitment of Bernard John Koelzer v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 23, 2024
• Docket: 07-23-00453-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00453-CV

IN RE: THE COMMITMENT OF BERNARD JOHN KOELZER

On Appeal from the 223rd District Court Gray County, Texas Trial Court No. 40733, Honorable Phil N. Vanderpool, Presiding

August 23, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

In May 1995, Appellant entered guilty pleas for two sexual offenses committed

within a span of sixteen months. The first, an aggravated sexual assault, occurred in

March 1993. The second, a burglary of a habitation with attempted sexual assault, took

place in July 1994. For these crimes, Appellant received a thirty-year sentence of

confinement.

Subsequently, a jury determined that Appellant meets the criteria of a sexually

violent predator as defined by Texas law. This finding led the trial court to issue a final judgment and order of civil commitment.1 Under section 841.003(a) of the Texas Health

and Safety Code, a sexually violent predator is an individual who: (1) has a history of

repeat sexually violent offenses, and (2) suffers from a behavioral abnormality that

predisposes them to engage in predatory acts of sexual violence.

Appellant’s appeal centers on a single contention: that the evidence presented by

the State was insufficient to support the jury’s finding that he meets the statutory definition

of a repeat sexually violent offender. The core of Appellant’s argument is that his July

1994 conviction for burglary with attempted sexual assault does not qualify as a “sexually

violent offense” under the relevant statute.2 This assertion, if correct, would undermine

his classification as a repeat offender.

This Court has previously addressed and rejected an argument similar to

Appellant’s. In In re Commitment of Wiley, No. 07-20-00039-CV, 2021 Tex. App. LEXIS

660 (Tex. App.—Amarillo Aug. 11, 2021, pet. denied) (mem. op.), we confronted a

comparable argument. The appellant in Wiley contended that his 1995 burglary

conviction should not be classified as a sexually violent offense because he allegedly

“attempted to commit and committed” aggravated sexual assault rather than entering the

habitation “with intent to commit” aggravated sexual assault. Id. at *1–3.

In denying Wiley’s first motion for en banc consideration, we clarified that the

element of intent to commit sexual assault is subsumed within the offense charged, and

1 See TEX. HEALTH & SAFETY CODE ANN. § 841.001–.151.

2 Appellant does not challenge whether the State’s evidence supports the jury’s finding that Appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.

2 characterized Wiley’s argument as an improper collateral attack on the judgment of

conviction. Id. Subsequently, in rejecting Wiley’s second motion for en banc

reconsideration, we emphasized that “the offense of burglary punishable under

subsection (d) of section 30.03 of the Texas Penal Code is, by definition, a sexually violent

offense. It is simply not any more complicated than that.” See In re Commitment of Wiley,

No. 07-20-00039-CV, 2021 Tex. App. LEXIS 10005, at *2 (Tex. App.—Amarillo Dec. 7,

2021). Our position on this issue aligns with other courts of appeals. See In re Adams,

No. 05-22-00085-CV, 2023 Tex. App. LEXIS 612, *8–13 (Tex. App.—Dallas Jan. 31,

2023, pet. denied) (citing Wiley and reaching the same conclusion).

Appellant draws our attention to a 2023 amendment to section 841.002(8)(C) of

the Texas Health and Safety Code. The revised statute now explicitly defines “sexually

violent offense” to include burglary, provided the offense is punishable under subsection

(d) and the perpetrator “entered the habitation” with the intent to commit sexual assault

or aggravated sexual assault, “or committed or attempted to commit” such offenses. See

TEX. HEALTH & SAFETY CODE ANN. § 841.002(8)(C); 2023 Tex. SB 1179, 2023 Tex. Gen.

Laws 351, 2023 Tex. Ch 351, 2023 Tex. ALS 351 (effective September 1, 2023).

Appellant posits that if our interpretation in Wiley was correct, then “the Legislature’s

amendment to section 841.002(8)(C) was merely pro forma, and the Legislature intended

nothing by the ‘change’ in the statute.” While novel, this argument is flawed.

When, after a court decision interpreting a statute, the legislature reenacts a

statute without material alteration, we must presume that it was aware of, endorsed, and

intended to preserve prior judicial constructions of that statute. Perales v. State, No. 03-

13-00511-CR, 2014 Tex. App. LEXIS 11261, at *6–7 (Tex. App.—Austin Oct. 10, 2014, 3 pet. ref’d). In this instance, the legislative amendment aligns with our prior interpretation

of the statute. It would be illogical to infer that the legislature intended a different outcome

when it adopted the very position previously articulated by this Court. Had the legislature

intended to diverge from our interpretation, we believe it would have done so explicitly

and unambiguously. Id.

In light of our decision in Wiley, the consistent interpretation from another appellate

court, and the Legislature’s recent amendment that aligns with our prior construction, we

conclude that Appellant’s 1995 burglary conviction qualifies as a sexually violent offense

under the statute. The State presented sufficient evidence to support the jury’s finding

that Appellant is a repeat sexually violent offender. Accordingly, Appellant’s single issue

is overruled.

Conclusion

The trial court’s Order of Commitment is affirmed.

Lawrence M. Doss Justice