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In re Commitment of Mares

Court of Appeals of Texas, Fourth District, San Antonio

March 22, 2017

IN RE COMMITMENT OF Reyes MARES

         From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-15567 Honorable Melisa Skinner, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          OPINION

          Rebeca C. Martinez, Justice

         Reyes Mares appeals the trial court's judgment finding him to be a "sexually violent predator" and ordering him to be civilly committed pursuant to Texas Health and Safety Code section 841.081. Tex. Health & Safety Code Ann. § 841.081 (West Supp. 2016). On appeal, Mares argues the trial court erred in permitting the State's expert to testify to hearsay details of his sexual offenses that were more prejudicial than probative, and by not permitting him to read to the jury the State's admissions in response to his requests for admissions. Mares also asserts there is insufficient evidence to support the jury's finding that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. After hearing oral argument in this case, we affirm the trial court's judgment and order of commitment.

         Sexually Violent Predator Act

         The Sexually Violent Predator Act ("SVP Act") was added as Chapter 841 of the Texas Health and Safety Code in 1999. Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2016). Until the Act was amended in 2015, the district court in Montgomery County, Texas had exclusive jurisdiction over all petitions filed under the SVP Act, with appeals heard by the Beaumont Court of Appeals and the Texas Supreme Court.[1] Effective June 17, 2015, the State is required to file a commitment petition in the county where the defendant's most recent conviction occurred. See id. § 841.041(a) (West Supp. 2016). This case is one of the first SVP Act appeals to be argued before this court.

         In enacting the SVP Act, the Texas legislature made specific findings that public safety and treatment are the primary statutory goals for the "small but extremely dangerous group of sexually violent predators . . . [who] have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes [them] likely to engage in repeated predatory acts of sexual violence." Id. § 841.001 (West 2010). The Texas Supreme Court has determined that commitment under the SVP Act is not punitive or criminal in nature, and that a SVP commitment proceeding is a civil matter to which the constitutional safeguards attendant to a criminal prosecution do not apply. In re Commitment of Fisher, 164 S.W.3d 637, 645-53 (Tex. 2005); see also In re Commitment of May, 500 S.W.3d 515, 518, 524 (Tex. App.-Beaumont 2016, pet. filed) (holding the 2015 amendments retroactively establishing a tiered inpatient treatment program are not so punitive as to render the statute criminal, instead of civil). The Act provides that, except as otherwise stated, the rules of procedure and appeal for civil cases apply to a civil commitment proceeding. Tex. Health & Safety Code Ann. § 841.146(b) (West Supp. 2016).

         To warrant Mares's civil commitment as a sexually violent predator, the State was required to prove two prongs beyond a reasonable doubt: (1) that Mares is a "repeat sexually violent offender" and (2) that Mares suffers from a "behavioral abnormality that makes [him] likely to engage in a predatory act of sexual violence." Id. §§ 841.003(a), 841.062(a) (West Supp. 2016 & 2010). The statute defines a "repeat sexually violent offender" as a person who has been convicted of more than one sexually violent offense and has been sentenced for at least one of the offenses. Id. § 841.003(b). Here, the admission into evidence of Mares's pen packet containing the indictments and judgments for the underlying sexual offenses sufficiently established the first prong. Mares does not raise any challenges to this first prong on appeal.

         As to the second element, the statute defines a "behavioral abnormality" as "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). The United States Supreme Court has held that due process requires "proof of serious difficulty in controlling behavior" before a person can be civilly committed as a sexually violent predator. Kansas v. Crane, 534 U.S. 407, 413 (2002) (the difficulty, considering the nature of the psychiatric diagnosis and the severity of the mental abnormality itself, must be sufficient to distinguish the committed person from the "dangerous but typical [criminal] recidivist."). Courts applying the Texas SVP Act have held that a specific, independent finding on lack-of-control is not required, and that a broad-form jury charge submission based on the statutory definition of a "behavioral abnormality" encompasses the lack-of-control determination required by Crane. See In re Commitment of Browning, 113 S.W.3d 851, 863 (Tex. App.-Austin 2003, pet. denied); In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.-Beaumont 2002, pet. denied) (evidence relating to behavioral abnormality as defined in the Texas SVP Act was legally sufficient to prove "serious difficulty in controlling behavior"). All of Mares's issues on appeal pertain to this second prong requiring proof that he suffers from a "behavioral abnormality, " as defined by the Act.

         If the jury returns a unanimous verdict making an affirmative finding that the person is a "sexually violent predator, " as defined by the two prongs, the judge must commit the person for treatment and supervision to begin on the date of release from prison and to continue "until the person's behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code Ann. § 841.081(a) (West Supp. 2016). In the commitment order, the judge must impose "requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community;" such requirements include residing where instructed by the Texas Civil Commitment Office, no contact with the victims, participation in and compliance with the sex offender treatment program, submission to tracking, and not leaving the state without prior authorization. Id. § 841.082(a) (West Supp. 2016); see also id. § 841.0831 (West Supp. 2016) (establishing a tiered treatment program that transitions from "a total confinement facility to less restrictive housing and supervision and eventually to release from civil commitment, based on the person's behavior and progress"). A person who is civilly committed under the Texas SVP Act receives a statutory biennial review of his status, and has the right to file either an authorized or unauthorized petition for release at any time. See id. §§ 841.101-.103, 841.121-.124 (West Supp. 2016).

         Background

         The following facts are based on the testimony presented at the jury trial and the pen packet introduced by the State into evidence.

         Mares stated he began using alcohol at nine years old and began using and selling drugs at ten years old; he progressed to using and selling methamphetamines and heroin by age twenty. He stated the intravenous drugs would sometimes "heighten his sex drive." Mares had a juvenile record. In 1989, Mares was convicted of aggravated robbery with a deadly weapon [knife] and received probation. His probation was revoked in 1993 based on his commission of the first sexual assault conviction listed below. Mares has two sexual assault convictions, both arising out of conduct occurring during a six-month period in 1992. His two sexual assault convictions were proven through copies of the indictments and judgments, and consist of:

1st sexual assault offense - In 1993, Mares pled guilty to aggravated sexual assault of a child (A.G., 7 years old) committed on November 2, 1992, and was sentenced to 25 years in prison in accordance with his plea bargain. Count I, Paragraph A of the Indictment alleged penetration of A.G.'s female sexual organ by Mares's sexual organ; Paragraph B alleged penetration of A.G.'s anus by Mares's sexual organ.
2nd sexual assault offense - In 1999, Mares pled guilty to aggravated sexual assault of a child (A.R., 7 years old) committed on June 1, 1992, and was sentenced to seven years in prison in accordance with his plea bargain. Mares was not indicted on this offense until 1998 (when he was in prison), but the offense occurred prior to his first sexual assault offense. Count I, Paragraph A of the Indictment alleged penetration of A.R.'s female ...

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