In re Commitment of Mosley

          Submitted on May 30, 2016

         On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 14-09-10393-CV

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON Justice

         Gary 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.

         Facial Constitutional Challenge

         In his 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. 2005).

         The 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.

         Generally, 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.).

         Mosley 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.

         We hold 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.

         Motion to Recuse

         In his 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.

         In his 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.^[1] 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 ...