In re the Commitment of Perdue

530 S.W.3d 750
CourtCourt of Appeals of Texas
DecidedAugust 17, 2017
DocketNO. 02-17-00017-CV
StatusPublished
Cited by8 cases

This text of 530 S.W.3d 750 (In re the Commitment of Perdue) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Commitment of Perdue, 530 S.W.3d 750 (Tex. Ct. App. 2017).

Opinion

OPINION

ELIZABETH KERR, JUSTICE

The State filed a petition to commit Michael Edward Perdue as a sexually violent predator (SVP). A jury found that Perdue is an SVP, and the trial court rendered a final judgment and a civil-commitment order. Perdue appeals, contending in one issue that the trial court erroneously granted the State’s motion for partial directed verdict on whether Perdue is a “repeat sexually violent offender,” something . that is one of the two statutory elements of an SVP finding. We affirm.

I. Background

At trial, Perdue admitted to having four sexual-offense convictions consisting of two convictions for indecency with a child by contact in 1986, a 1987 conviction Lor indecency with a child by contact, and a 1994 conviction for aggravated sexual assault of a child under 14 years of age. Perdue pleaded guilty to each- of these four offenses. He was given deferred-adjudication probation for the 1985 offenses, but his probation was revoked and he was adjudicated guilty because of the 1987 offense. He was sentenced to five years in prison for each of the 1986 convictions and for the 1987 conviction, with the three sentences to run concurrently. After serving roughly two years, on New Year’s Day of 1994 Perdue reoffended. Following his 1994 conviction, he was sentenced to 30 years in prison . and is currently incarcerated. The [752]*752State introduced into evidence the deferred-adjudication orders and Perdue’s “pen packets,” which contained the conviction judgments.

After Perdue admitted to these four sexual-offense convictions, the State moved for a partial directed verdict on the ground that the evidence conclusively established that Perdue is a repeat sexually violent offender. The trial court took judicial notice of the offenses and concluded that no factual dispute on this issue existed. The court granted the State’s motion and included the remaining disputed issue— whether Perdue suffers from a “behavioral abnormality” as statutorily defined—in the charge, along with telling the jury of the partial directed verdict. The jury unanimously found that Purdue is an SVP.

II. Issue on Appeal

Perdue argues that the trial court erred by granting the State’s motion for directed verdict on the first of the two elements necessary to commit him as an SVP. He claims a conflict between the Texas Rules of Civil Procedure, which allow for a directed verdict, and the SVP statute, which provides that in a jury trial, it is for the jury to determine whether a person is an SVP. See Tex. Health & Safety Code Ann. §§ 841.061(b), .062(a) (West 2017); Tex. R. Civ. P. 268. According to Perdue, the SVP statute should control, and the trial court should therefore have denied the State’s motion for partial directed verdict. See Tex. Health & Safety Code Ann. § 841.146(b) (West 2017).

III. Applicable Law

Under chapter 841 of the health and safety code, a trial court must commit a person for treatment and supervision if the factfinder determines the person is an SVP. Id. § 841.081(a) (West 2017). A person is an SVP if he “(1) is a repeat sexually violent offender, and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Id. § 841.003(a) (West 2017). A person is a repeat sexually violent offender if he “is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses. ...” Id. § 841.003(b) (West 2017). Both indecency with a child by contact and aggravated sexual assault are legislatively defined as sexually violent offenses. Id § 841.002(8)(A) (West 2017); Tex. Penal Code Ann. §§ 21.11(a)(1) (West 2011), 22.021 (West Supp. 2016).

In a civil-commitment case, a person is “entitled to a jury trial on demand.” Tex. Health & Safety Code Ann. § 841.061(b). And the State must prove, beyond a reasonable doubt, that a person is an SVP. See id. § 841.062(a). Although civil commitments are generally governed by the Texas Rules of Civil Procedure, when chapter 841 and those rules conflict, chapter 841 prevails. Id. § 841.146(b).

The rules of civil procedure provide for a directed verdict. See Tex. R. Civ. P. 268. A directed verdict is proper only under limited circumstances: (1) when the evidence is insufficient to raise a material fact issue, or (2) when the evidence conclusively establishes the movant’s right to judgment or negates the opponent’s right. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Farmers Grp. Ins., Inc. v. Poteet, 434 S.W.3d 316, 331-32 (Tex. App.—Fort Worth 2014, pet. denied).

IV.Discussion

Perdue’s argument—that a conflict exists between the Texas Rules of Civil Procedure, which allow for a directed verdict, and the SVP statute, which provides that in a jury trial, “the jury shall determine whether, beyond a reasonable doubt, [753]*753the person is” an SVP—is unpersuasive. Tex. Health & Safety Code Ann. § 841.062(a); see Tex. R. Civ. P. 268. In essence, Perdue is asking us to interpret section 841.062(a) to mean that regardless of the evidence and any testimonial admissions, a trial court may never instruct the jury that as a matter of law someone has in fact been convicted of more than one sexually violent offense and a sentence was imposed on at least one offense. But where the evidence at trial and Perdue’s own admissions conclusively established that he met the statutory definition of a “repeat sexually violent offender,” the trial court need not have asked the jury to make a factual finding on an undisputed fact.

Cases abound recognizing that in civil-commitment jury trials, the trial court “may grant a partial directed verdict to remove a certain portion of a case from the factfinder.” In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 WL 1400671, at *3 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.) (citing In re Commitment of Scott, No. 09-11-00555-CV, 2012 WL 5289333, at *2 (Tex. App.— Beaumont Oct. 25, 2012, no pet.) (mem. op); In re Commitment of Martinez, No. 09-12-00452-CV, 2013 WL 5874583, at *3-4 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.)). “A directed verdict does not violate the right to a trial by jury because it is a procedure that depends on a trial court’s conclusion that there are no issues of fact to be determined.” Id. (citing Rosenthal v. Boyd, No. 03-11-00037-CV, 2013 WL 1876513, at *4 (Tex. App.—Austin May 1, 2013, no pet.) (mem. op.)).

Three of our sister courts have upheld the availability of a directed verdict on the repeat-sexually-violent-offender element in a civil-commitment proceeding; none has held otherwise. See, e.g., In re Commitment of Talley, No. 01-16-00572-CV, 522 S.W.3d 742, 750-51, 2017 WL 1536478, at *6 (Tex. App.—Houston [1st Dist.] Apr. 27, 2017, no pet.); In re Commitment of Black, No. 04-16-00423-CV, 522 S.W.3d 2

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Bluebook (online)
530 S.W.3d 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-commitment-of-perdue-texapp-2017.