Court of Appeals of Texas, Ninth District, Beaumont
Submitted on May 30, 2016
Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 14-09-10393-CV
McKeithen, C.J., Horton and Johnson, JJ.
Don Mosley appeals from a jury verdict that resulted in his
civil commitment as a sexually-violent predator. See
Tex. Health & Safety Code Ann. § 841.001-.151 (West
2010 & Supp. 2016) (the SVP statute). In four issues,
Mosley challenges the facial constitutionality of the SVP
statute, complains the trial judge should have been recused
from handling his case, and contends the evidence is legally
and factually insufficient to support the jury's verdict.
We conclude that Mosley's issues are without merit, and
we affirm the trial court's judgment.
first issue, Mosley argues that the 2015 amendments to the
SVP statute rendered all of Chapter 841 of the Texas Health
and Safety Code facially unconstitutional. According to
Mosley, because the amendments "tipped Chapter 841 into
the punitive realm[, ]" the SVP statute fails the
"intent-effects test, " which is the test the Texas
Supreme Court used in 2005 in rejecting various arguments
that challenged the constitutionality of the statute. See
In re Commitment of Fisher, 164 S.W.3d 637, 645-53 (Tex.
amendments at issue in Mosley's appeal are found in
Senate Bill 746, which amended several of the provisions in
Chapter 841 of the Texas Health and Safety Code. See
Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex.
Sess. Law Serv. 2700, 2700-12. The amendments at issue in
Mosley's appeal went into effect on June 17, 2015.
Id. Mosley's trial began on July 13, 2015.
However, the appellate record shows that Mosley did not
present a facial challenge to the constitutionality of the
SVP statute, as amended, before or during his trial. Mosley
also did not complain about the facial constitutionality of
the SVP statute, as amended, in his motion for new trial.
to preserve a complaint for appellate review, the complaining
party is required to present the complaint to the trial court
in a timely request, objection, or motion. Tex.R.App.P.
33.1(a)(1). Mosley presents a facial challenge to the
constitutionality of the amended SVP statute in his appeal.
Facial challenges to a statute must first be presented to the
trial court before they may be raised in an appeal. In re
Commitment of Welsh, No. 09-15-00498-CV, 2016 WL
4483165, at *2 (Tex. App.-Beaumont Aug. 25, 2016, pet.
denied) (mem. op.).
argues that we should excuse his failure to raise his
challenge because he challenged the constitutionality of the
amended SVP statute in his appeal shortly after learning that
another person involved in sexually-violent-predator
commitment proceeding obtained a ruling from a lower court
finding that the amended SVP statute is facially
unconstitutional based on the amendments that are at issue in
this appeal. See generally In re Commitment of May,
500 S.W.3d 515, 520-527 (Tex. App.-Beaumont 2016, pet.
denied). However, we reversed May on appeal, and we
agreed with the State's arguments that the amendments to
Chapter 841 did not change the SVP statute in ways that made
the statute unconstitutional. Id. at 527.
that Mosley failed to properly preserve his challenge because
he failed to first present his facial challenge to the
constitutionality of the SVP statute when his case was
pending in the trial court. See In re Commitment of
Clemons, No. 09-15-00488-CV, 2016 WL 7323298, at *8
(Tex. App.-Beaumont Dec. 15, 2016, pet. denied) (mem. op.).
We overrule issue one.
second issue, Mosley argues that the judge presiding over the
hearing conducted on his motion to recuse should have recused
Judge Michael T. Seiler from presiding over his trial. We
review the denial of a motion to recuse under an abuse of
discretion standard. See Tex. R. Civ. P. 18a(j);
In re Commitment of Winkle, 434 S.W.3d 300, 310
(Tex. App.-Beaumont 2014, pet. denied). A judge must be
recused when his "impartiality might reasonably be
questioned[ ]" or he has a "personal bias or
prejudice concerning the subject matter or a party[.]"
Tex.R.Civ.P. 18b(b)(1), (2). The complaining party "must
show that a reasonable person, with knowledge of the
circumstances, would harbor doubts as to the impartiality of
the trial judge, and that the bias is of such a nature and
extent that allowing the judge to serve would deny the
movant's right to receive due process of law."
Winkle, 434 S.W.3d at 311.
pre-trial motion to recuse, Mosley argued that Judge
Seiler's conduct demonstrated a lack of impartiality and
a bias or prejudice concerning persons who have committed
more than one sexually-violent offense. To support his
arguments, Mosley relied upon speeches Judge Seiler made to
the Texas Patriots PAC and the Montgomery County Republican
Women, Judge Seiler's campaign slogans, and his recusals
in other civil commitment cases. In the hearing on the motion
to recuse, Mosley also argued that Judge Seiler's
impartiality could reasonably be questioned because the Texas
Judicial Conduct Commission publicly reprimanded Judge Seiler
in 2015, the Legislature amended the SVP statute in the 2015
legislative session for the express purpose of eliminating
Judge Seiler's sole control over civil commitment trials,
local lawyers were reported to have made comments critical of
the manner Judge Seiler handled various SVP cases in articles
published in local newspapers, and a psychiatrist who
frequently testified on behalf of individuals in SVP
proceedings indicated that Judge Seiler had, on occasion,
censored and belittled him when he testified. According
Mosley's brief, the evidence admitted during the hearing
on the motion to recuse established that "a reasonable
person, with knowledge of the circumstances, would harbor
doubts as to the impartiality of the trial judge[.]"
Winkle, 434 S.W.3d at 311; see also Tex. R.
Civ. P. 18b(b)(1). Mosley argues that Judge Seiler's
public comments, courtroom treatment of attorneys
representing the individuals ...