Court of Appeals of Texas, Second District, Fort Worth
CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT
GABRIEL, SUDDERTH, and PITTMAN, JJ.
T. PITTMAN JUSTICE.
found that Appellant Von Michael Short is a sexually violent
predator (SVP), and, accordingly, the trial court ordered him
to be civilly committed in accordance with Texas Health and
Safety Code section 841.081. See Tex. Health &
Safety Code Ann. § 841.081 (West Supp. 2016). In two
issues, Short challenges the legal and factual sufficiency of
the evidence supporting the jury's verdict. We affirm the
trial court's judgment of civil commitment.
I. Procedural History
State of Texas filed a petition to have Short civilly
committed as a SVP. See id. § 841.041(a) (West
Supp. 2016). The State alleged that Short was a repeat
sexually violent offender who had been convicted of (1)
burglary by entering a habitation and attempting to commit
and committing a sexual assault;
kidnapping and sexual assault committed during the
sexual assault at an apartment complex; and (4) attempted
aggravated sexual assault of a coworker.
matter was tried to a jury. The State called two forensic
psychologists and Short as witnesses. Short testified again
in his defense and also called a forensic psychologist, his
sister, and three people who knew him from volunteer work
they had performed through a faith-based prison program.
jury was instructed that "[a] person is a sexually
violent predator . . . if the person is a repeat sexually
violent offender and . . . suffers from a behavioral
abnormality that makes the person likely to engage in a
predatory act of sexual violence." See id.
§ 841.023(a) (West Supp. 2016). After deliberations, a
unanimous jury found beyond a reasonable doubt that Short is
a SVP. In accordance with the jury's verdict, the trial
court ordered Short to be civilly committed.
appeal, Short challenges the jury's finding, arguing in
his first issue that the evidence was legally insufficient to
support a finding beyond a reasonable doubt that he has a
behavioral abnormality because the State failed to provide
any connection between his past and present behavior. In his
second issue, he challenges the factual insufficiency of the
evidence on the same ground.
Short Preserved his Challenges to the Sufficiency of the
we consider Short's issues, we first address the
State's contention that Short failed to preserve his
sufficiency challenges. The State maintains that Short's
complaints on appeal are not preserved because they are not
the same as those he raised in his motion for new trial. We
may preserve sufficiency arguments by raising them in a
motion for new trial. See Tex. R. Civ. P. 324(b)
(providing that a motion for new trial is a prerequisite to
complaining on appeal of factual insufficiency of the
evidence to support a jury finding); Hutchison v.
Pharris, 158 S.W.3d 554, 562 (Tex. App.- Fort Worth
2005, no pet.) (noting that a motion for new trial preserves
a legal sufficiency complaint). Here, Short filed a motion
for new trial asserting, among other grounds, that the
State's experts "failed to show a basis for support
of their opinion that [his] sexual deviance makes him likely
to act on that tendency." Short further asserted that
the jury's answer to question one in the jury charge was
not proven beyond a reasonable doubt. That question asked the
jury whether it found beyond a reasonable doubt that Short is
a sexually violent predator. Short contended in his motion
that he was not "shown to have engaged in a sexually
violent act today, which affected his emotional and
volitional capacity" and that the State's expert
testimony failed to "close the analytical gap"
between Short's past offenses and his sexual behavior
appeal, Short makes essentially the same complaint in his
sufficiency challenges-that the State did not meet its burden
of proof to show that he currently lacks control
over his own behavior and that the State failed to connect
his past behavior to his present behavior. Short's
complaints in his motion for new trial were clear enough to
give the trial court the opportunity to address them.
See Tex. R. Civ. P. 321 (requiring that each point
relied on in a motion for new trial "shall briefly refer
to that part of the ruling of the court . . . in such a way
that the objection can be clearly identified and understood
by the court"); Arkoma Basin Expl. Co., Inc. v. FMF
Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008)
("[T]he cardinal rule for preserving error is that an
objection must be clear enough to give the trial court an
opportunity to correct it."). Short therefore preserved
his complaints for appeal. See Tex. R. Civ. P.
324(b)(2); Hutchison, 158 S.W.3d at 562.
The Standard of Review Applied to Civil Commitment
review SVP civil commitment proceedings for legal sufficiency
of the evidence using the appellate standard of review
applied in criminal cases. In re Commitment of
Stuteville, 463 S.W.3d 543, 551 (Tex. App.-Houston [1st
Dist.] 2015, pet. denied); see In re Commitment of
Dever, No. 02-16-00276-CV, 2017 WL 1089695, at *1 (Tex.
App.-Fort Worth Mar. 23, 2017, no. pet.). We assess the
evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could find the
statutory elements required for commitment beyond a
reasonable doubt. Stuteville, 463 S.W.3d at 551.
reviewing the factual sufficiency of the evidence to support
the civil commitment order, we weigh all 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."
Dever, 2017 WL 1089695, at *1 (quoting In re
Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.-
Beaumont 2011, pet. denied)). We reverse only if, after
weighing the evidence, we determine that the risk of an
injustice remains too great to allow the verdict to stand.
Stuteville, 463 S.W.3d at 552 (quotation marks
omitted); see also Brooks v. State, 323 S.W.3d 893,
895, 912 (Tex. Crim. App. 2010).
SVP Civil Commitment Proceedings
841 of the health and safety code (the SVP Act) provides a
procedure for the involuntary civil commitment of a SVP. Tex.
Health & Safety Code Ann. § 841.001 (West 2010). The
procedure begins with the assessment of a potentially
sexually violent offender before the person's release
date. A person meets the criteria for an assessment if the
person (1) is serving a sentence for a sexually violent
offense described in the SVP Act and (2) may be a repeat
sexually violent offender. Id. §§
841.021(a), 841.003(b) (West Supp. 2016). A multidisciplinary
team described in the SVP Act must make the assessment after
receiving notice of the person's anticipated date of
release from incarceration. Id. § 841.022(c)
(West Supp. 2016). On receiving such notice, the team must
(1) assess whether the person is a repeat sexually violent
offender and whether the person is likely to commit a
sexually violent offense after release; (2) give notice of
that assessment to the Texas Department of Criminal Justice
(the Department); and (3) recommend the assessment of the
person for a behavioral abnormality, as appropriate.
team makes such a recommendation, then, not later than the
sixtieth day after the date of the recommendation, the
Department must assess whether the person suffers from a
behavioral abnormality that makes the person likely to engage
in a predatory act of sexual violence. Id. §
841.023(a). The SVP Act defines "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 (West Supp. 2016).
in the assessment, the Department must use an expert to
examine the person and make a clinical assessment.
Id. § 841.023(a). If, as a result of the
assessment, the Department believes that the person suffers
from a behavioral abnormality, the Department must notify the
attorney representing the State for the county in which the
person was most recently convicted of a sexually violent
offense, and it must provide that attorney with the
corresponding documentation. Id. § 841.023(b).
That attorney may file a petition alleging that the person is
a SVP. Id. § 841.041(a). The petition must be
filed in the court of conviction for the person's most
recent sexually violent offense. Id.
trial court must conduct a trial to determine if the person
is a SVP, and this trial must occur before the person's
sentence discharge date and not later than the 270th day
after the date the petition is served on the person.
Id. § 841.061(a) (West Supp. 2016). The person
and the State may request a jury trial. Id. §
841.061(b). The fact finder must determine whether, beyond a
reasonable doubt, the person is a SVP. Id. §
841.062(a) (West 2010). If the matter is tried to a jury, the
jury's determination must be unanimous. Id.
§ 841.062(b). If the fact finder determines that the
person is a SVP, the court must commit the person for
treatment and supervision. Id. § 841.081(a)
(West Supp. 2016). Before entering the order of civil
commitment, the trial court must impose certain ...