Court of Appeals of Texas, Ninth District, Beaumont
Submitted on June 13, 2016
Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 15-03-02936-CV
Kreger, Horton, and Johnson, JJ.
CHARLES KREGER Justice
Glenn Clark appeals from a judgment on a jury verdict that
resulted in his civil commitment as a sexually violent
predator. See Tex. Health & Safety Code Ann.
§ 841.081(a) (West Supp. 2016). In four issues brought
on appeal, Clark argues that as amended in 2015, Chapter 841
of the Texas Health and Safety Code is facially
unconstitutional; he contends the trial court erred in
admitting into evidence four affidavits that were included in
a Florida penitentiary packet; and he challenges the legal
and factual sufficiency of the evidence supporting the
jury's verdict. We overrule Clark's issues and affirm
the trial court's judgment and order of civil commitment.
first issue, Clark argues that Chapter 841 of the Texas
Health and Safety Code is facially unconstitutional because
statutory amendments that came into effect approximately two
months before his trial create a tiered treatment program
that includes a "'total confinement facility'
with the 'possibility' of 'less restrictive'
housing at some unspecified future date depending on the
person's progress in treatment"without eliminating
severe criminal penalties for violating legislatively
enumerated civil-commitment requirements. See Tex.
Health & Safety Code Ann. § 841.0831(b) (West Supp.
2016). He argues that as amended, Chapter 841 fails the
"intent-effects test" utilized by the Texas Supreme
Court in In re Commitment of Fisher. See
164 S.W.3d 637, 645-53 (Tex. 2005).
did not raise a constitutional challenge to the statute in
the trial court; therefore, he waived his complaint regarding
the statutory amendments that were already in effect when his
case was tried. See In re Commitment of Clemons, No.
09-15-00488-CV, 2016 WL 7323298, at *12 (Tex. App.-Beaumont
Dec. 15, 2016, pet. filed) (mem. op.). Clark argues his
challenge may be brought for the first time on appeal because
after the case was tried, the statute was declared
unconstitutional by a trial court ruling in another civil
commitment case. The trial court's order in that case was
reversed on appeal after Clark filed his brief for his
appeal. In re Commitment of May, 500 S.W.3d 515,
520-24 (Tex. App.-Beaumont 2016, pet. filed). In
May, we held that as amended in 2015, Chapter 841 of
the Texas Health and Safety Code is not unconstitutionally
punitive. Id. We decline to revisit our holding in
May, and we reiterate that Chapter 841 of the Texas
Health and Safety Code, as amended in 2015, is neither
punitive nor facially unconstitutional. See id.
Clark waived this issue. We overrule issue one.
second issue, Clark argues that the trial court erred in
admitting into evidence copies of four complaint arrest
affidavits that were included in the penitentiary packet for
Clark's Florida convictions. "Rule 803(8) of the
Rules of Evidence generally provides an exception to hearsay
for police records offered into evidence in a civil
case." Clemons, 2016 WL 7323298, at *9;
see Tex. R. Evid. 803(8). "Rule 803(8) excludes
investigative reports when offered against the defendant in a
criminal case, not because law enforcement officers are
disinclined to be truthful, but because a criminal case pits
law enforcement and defendants as adversaries, and conviction
should not be based on an officer's testimony offered
in absentia." Tex. Dep't of Pub. Safety
v. Caruana, 363 S.W.3d 558, 564 (Tex. 2012). Generally,
police reports may be used in a civil case. Id.
(explaining that an officer's report was admissible in an
administrative license revocation proceeding). We overrule
of the Evidence
three and four challenge the legal and factual sufficiency of
the evidence supporting the jury's verdict that Clark is
a sexually violent predator. Both issues were preserved
through a motion for new trial. On appeal, Clark argues the
jury's verdict is based on two experts' speculative
and conclusory opinions that lack an adequate evidentiary
legal sufficiency review, we assess all the evidence in the
light most favorable to the verdict to determine whether any
rational trier of fact could find, beyond a reasonable doubt,
the elements required for civil commitment as a sexually
violent predator. In re Commitment of Mullens, 92
S.W.3d 881, 885 (Tex. App.- Beaumont 2002, pet. denied). As
the factfinder, the jury has the responsibility to fairly
resolve conflicts in the testimony, weigh the evidence, and
draw reasonable inferences from basic facts to ultimate
facts. Id. at 887. Under a factual sufficiency
review in a civil commitment proceeding, we weigh the
evidence to determine "whether a verdict that is
supported by legally sufficient evidence nevertheless
reflects a risk of injustice that would compel ordering a new
trial." In re Commitment of Day, 342 S.W.3d
193, 213 (Tex. App.-Beaumont 2011, pet. denied).
civil commitment proceeding under Chapter 841 of the Texas
Health and Safety Code, the State must prove, beyond a
reasonable doubt, that a person is a sexually violent
predator. Tex. Health & Safety Code Ann. §
841.062(a) (West 2010). A person is a
"sexually violent predator" if the
person is a repeat sexually violent offender and suffers from
a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. Tex. Health & Safety
Code Ann. § 841.003(a) (West Supp. 2016). A
"[b]ehavioral abnormality" is "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) (West Supp.
2016). "A condition which affects either emotional
capacity or volitional capacity to the extent a person is
predisposed to threaten the ...