Court of Appeals of Texas, Ninth District, Beaumont
Submitted November 21, 2013.
On Appeal from the 435th District Court, Montgomery County, Texas. Trial Cause No. 12-05-04918 CV.
For Appellant: Kenneth Nash, State Counsel for Offenders, Huntsville.
For Appellee: Melinda Fletcher, Special Prosecution Unit, Amarillo.
Before McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER, Justice.
The State of Texas filed a petition to civilly commit John James Smith Jr. as a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code Ann. § § 841.001-.151 (West 2010 & Supp. 2013) (the SVP statute). A jury found Smith suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id . § 841.003. The trial court entered a final judgment and an order of civil commitment under the Act. We affirm the judgment of the trial court.
Smith argues on appeal that the trial court committed three reversible errors. In his first issue, Smith argues that the trial court committed reversible error by denying his motion to allow his attorney to attend a psychiatric examination conducted by the State's expert. In his second issue, Smith argues the trial court denied Smith's right to ask a proper commitment question during jury selection. In his third issue, Smith argues the trial court denied Smith's right to cross-examine the State's expert witness regarding fees paid in prior civil commitment proceedings.
RIGHT TO COUNSEL
A person subject to a civil commitment proceeding under the SVP statute " is entitled to the assistance of counsel at all stages of the proceeding." Tex. Health & Safety Code Ann. § 841.144 (a). This statutory right to counsel attaches immediately after the filing of a petition. Id. The State filed its petition on May 7, 2012. Two days later, the trial court appointed an attorney with the office of State Counsel for Offenders to represent Smith and granted the State's motion for a psychiatric examination of Smith. That same day, through counsel of record, Smith filed a document asserting the exercise of Smith's right to counsel. Among other matters that have not been advanced on appeal, Smith requested that counsel be present during the State's psychiatric examination of Smith. On appeal, he contends the trial court's failure to permit counsel to personally attend the psychiatric examination violated his statutory right to counsel under the SVP statute and his constitutional right to due process under the Fourteenth Amendment.
First, we consider whether Smith has a statutory right to have his attorney present with him during the psychiatric ...