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Bohannan v. State

Court of Criminal Appeals of Texas

November 22, 2017

MICHAEL WAYNE BOHANNAN, Appellant
v.
THE STATE OF TEXAS, Appellee

         ON COURT'S OWN MOTION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS MONTGOMERY COUNTY

          OPINION

          WALKER, J.

         Pursuant to Chapter 841 of the Health and Safety Code, a jury found Appellant Michael Wayne Bohannan to be a sexually violent predator. The trial court in that case adjudicated Appellant as a sexually violent predator and ordered him to be civilly committed for treatment.[1] Appellant appealed the judgment of civil commitment, and while the appeal was pending he violated the civil commitment order. The court of appeals eventually reversed the judgment of civil commitment. Appellant was charged and convicted of violating the civil commitment order, and he was sentenced to life in prison. Because Appellant was required to follow the terms of the civil commitment order while the appeal of the judgment of civil commitment was pending, the court of appeals correctly affirmed his conviction. We affirm the judgment of the court of appeals.

         Background

         In 1982, Appellant rode his bicycle past K.C.'s home several times. Bohannan II, 388 S.W.3d at 299. Through a window, he watched her inside. Id. One evening, donning a ski mask and carrying a large knife, Appellant entered K.C.'s home through the rear door. Id. He walked down the hallway past a room in which a child was sleeping and entered K.C.'s bedroom, where she was lying on the bed and reading a newspaper. Id. Appellant orally and vaginally raped her and then left. Id. Appellant would later testify in his civil commitment case that he thought he would get some satisfaction or self-fulfillment out of raping K.C. Id. In some way, he also expected K.C. to "like being raped." Id.

         Some three weeks later, Appellant was driving around on his lunch break when he saw P.H. enter her home. Id. He stopped, put on his ski mask, picked up his knife, and walked through the front door. Id. Inside, P.H. was with a group of children. Id. Appellant forced P.H. to move the children to another room, and then he orally and vaginally raped P.H. in her bedroom. Id. As with the earlier rape of K.C., Appellant thought he would get some satisfaction from raping P.H. and "maybe . . . feel more of a man." Id.

         Appellant was apprehended, and in 1983, he pleaded guilty to two counts of aggravated rape with a deadly weapon and was sentenced to twenty years imprisonment.[2] Id. In 1991, Appellant was released on mandatory supervision. Id. In April 1992, he was charged with attempting to kidnap a nine year old girl in a K-Mart store. Id. at 299-300. He pleaded guilty to the new charge in February 1993, his mandatory supervision was revoked, and he returned to prison. Id.

         In 1998, Appellant was again released on mandatory supervision, and in 2000, he moved to South Carolina to live with his mother. Id. at 300. While there, he was convicted of exposing his genitals to an eight year old girl in a toy store, and he was sentenced to three years imprisonment. Id. In 2002, Appellant's mandatory supervision was again revoked, and he returned to prison in Texas. Id.

         In 2004, Appellant was released on mandatory supervision for a third time. Id. Two years later in 2006, he was caught viewing child pornography on a county law library computer, even though he was enrolled in sex offender therapy at the time, and his mandatory supervision was again revoked. Id. After a psychologist reported that Appellant was a sexually violent predator, the State petitioned for him to be civilly committed. Id. A civil commitment trial was held in which the State had two experts testify. Id. at 301. However, Appellant's designated expert was not permitted to testify. Id. The jury determined that Appellant suffered from a behavioral abnormality, as defined in the sexually violent predator statute, and the trial court accordingly adjudicated Appellant as a sexually violent predator and ordered Appellant to be civilly committed. Id. at 302. Appellant appealed this decision. See In re Commitment of Bohannan, 379 S.W.3d 293 (Tex. App.-Beaumont 2010) (mem. op.) (Bohannan I).

         Meanwhile, he was transferred to the supervision of the Council on Sex Offender Treatment. Bohannan v. State, No. 09-13-00090-CR, 2014 WL 5490936 (Tex. App.-Beaumont Oct. 29, 2014) (mem. op., not designated for publication) (Bohannan III).[3] Under the civil commitment order, Appellant was required to reside in a secured residential facility and to comply with the written requirements of the Council of Sex Offender Treatment and the case manager assigned to his case. Id., at *1. The written requirements instructed Appellant to comply with the rules of the residential facility. Id., at *2. The civil commitment order also required Appellant to wear a GPS monitor, be subject to monitoring, and comply with the written instructions for the monitoring system, which required Appellant to be tracked twenty-four hours a day, seven days a week. Id. Appellant's tracking device consisted of three parts: an ankle bracelet, a miniature tracking device (MTD) that Appellant would carry with him throughout the day, and a charging station for the MTD. Rep. R. vol. 3, 45-46, vol. 4, 15. The MTD itself reported Appellant's GPS location information, and the bracelet was simply a means of ensuring that the MTD was with Appellant at all times and that Appellant's tracking data was accurate. Rep. R. vol. 4, 17-18. If the bracelet and the MTD were too far apart, a bracelet gone alert would be sent by the MTD to Appellant's case manager, indicating that the bracelet and Appellant, who would be wearing the bracelet, were no longer near the MTD and were not being tracked. Rep. R. vol. 4, 18-19. Bracelet gone alerts were considered to be violations of the monitoring system requirements, which themselves would be violations of the civil commitment order. Rep. R. vol. 3, 46. The MTD regularly needed to be recharged in the base charging station, and while it was charging Appellant would have to stay close to the MTD or else trigger a bracelet gone alert. Rep. R. vol. 3, 43.

         On February 14, 2009, the MTD generated a "bracelet gone" alert. Bohannan III, 2014 WL 5490936, at *2. Further alerts were generated on March 2, 8, 18, and 27, 2009. Rep. R. vol. 3, 47. Most of the alerts were for a couple of minutes, and Appellant claimed that he was asleep during those alerts or that the MTD was malfunctioning. Rep. R. vol. 3, 49-57. However, the March 18 alert lasted for seventeen minutes, and Appellant's explanation was that he left the MTD in his room and went to another part of the facility. Bohannan III, 2014 WL 5490936, at *2. The five bracelet gone alerts were alleged as violations of the civil commitment order. Id.

         On July 22, 2010, the court of appeals reversed the judgment of civil commitment and remanded for a new civil commitment trial. See Bohannan I, 379 S.W.3d at 300. The court of appeals found that the trial court erred by excluding Appellant's expert witness from testifying, and the error was not harmless. Id. Eight months after the court of appeals's decision, on March 15, 2011, Appellant's case manager requested Appellant sign and acknowledge written civil commitment requirements, but Appellant refused. Bohannan III, 2014 WL 5490936, at *3. Appellant's case manager made another attempt on March 17, 2011, but he was again refused by Appellant. Id. The refusals were alleged as additional violations of Appellant's civil commitment order. Id.

         On April 24, 2011, Appellant got into a dispute with the staff at the facility. Id. He claimed that he was being denied his medication, and he became argumentative. Rep. R. vol. 3, 84-85. He pounded on a counter, cursed at personnel, and refused to return to his room. Bohannan III, 2014 WL 5490936, at *3. Local police responded to the disturbance, and they later returned to execute a parole revocation warrant and take Appellant to jail. Id. This incident was also alleged as a violation of the civil commitment order. Id.

         Meanwhile, the State sought review of the court of appeals's decision reversing the judgment of civil commitment. See Bohannan II, 388 S.W.3d at 302. On August 31, 2012, the Texas Supreme Court affirmed the judgment of the court of appeals. Id. at 307. Nevertheless, a couple of months later in October of 2012, the State indicted Appellant of violating the civil commitment order. Bohannan III, 2014 WL 5490936, at *1. The mandate of reversal was issued on January 18, 2013. Id., at *3. Still, the State proceeded with the prosecution, and on February 12, 2013, Appellant was convicted by a jury of violating the civil commitment order. Id., at *1. Finding enhancement paragraphs alleging the rape convictions and the South Carolina indecent exposure conviction to be true, the jury assessed a sentence of life in prison. Id.

         The court of appeals upheld Appellant's conviction. Id., at *7. Appellant filed a pro se petition with this Court for discretionary review alleging several grounds of error. On this Court's own motion, we granted review for one issue: Can a conviction for violating a civil commitment order be upheld when the underlying commitment order has been reversed on appeal?

         Jurisdiction

         Appellant first argues that the conviction cannot be upheld because the reversal of the civil commitment order deprived the trial court of jurisdiction. This is so, he contends, because a valid indictment is necessary for jurisdiction. According to Appellant, the indictment in this case is invalid because it does not state an offense, and it does not state an offense because there is no valid judgment or order of civil commitment.

         Under the Texas Constitution, the presentment of an indictment or information to a court invests that court with jurisdiction over the case. Tex. Const. art. V, § 12(b). To constitute an indictment or information, an instrument must charge a person with the commission of an offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007); Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). The proper test to determine if a charging instrument alleges an offense, for purposes of jurisdiction analysis, is whether the allegations in it are clear enough that one can identify the offense alleged. Teal, 230 S.W.3d at 180. If they are, then the indictment is sufficient to confer subject-matter jurisdiction. Id. "Stated another way: can the trial court (and appellate courts who ...


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