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In re Commitment of Short

Court of Appeals of Texas, Second District, Fort Worth

June 8, 2017

IN RE: THE COMMITMENT OF VON MICHAEL SHORT

         FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. CDC2-S-12962-15

          PANEL: GABRIEL, SUDDERTH, and PITTMAN, JJ.

          OPINION

          MARK T. PITTMAN JUSTICE.

         A jury 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

         The 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;

         (2)aggravated kidnapping and sexual assault committed during the kidnapping;

         (3) sexual assault at an apartment complex; and (4) attempted aggravated sexual assault of a coworker.

         The 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.

         The 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.

         II. Analysis

         On 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.

         A. Short Preserved his Challenges to the Sufficiency of the Evidence.

         Before 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 disagree.

         A party 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 today.

         On 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.

         B. The Standard of Review Applied to Civil Commitment Proceedings

         We 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.

         When 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).

         C. SVP Civil Commitment Proceedings

         Chapter 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. Id.

         If the 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).

         To aid 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.

         The 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. ยง 841.081(a) (West Supp. 2016). Before entering the order of civil commitment, the trial court must impose certain ...


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