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In re Commitment of Clark

Court of Appeals of Texas, Ninth District, Beaumont

February 23, 2017

IN RE COMMITMENT OF MARVIN GLENN CLARK

          Submitted on June 13, 2016

         On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-03-02936-CV

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         Marvin 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.

         Constitutional Challenge

         In his 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).

         Clark 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.

         Arrest Affidavits

         In his 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 issue two.

         Sufficiency of the Evidence

         Issues 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 basis.

         Under a 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).

         In a 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[1] 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. ยง 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 ...


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