Opinion
NO. 09-11-00430-CV
09-27-2012
IN RE COMMITMENT OF NORMAN LEWIS EVERS
On Appeal from the 435th Judicial District Court
Montgomery County, Texas
Trial Cause No. 11-01-00860 CV
MEMORANDUM OPINION
Norman Lewis Evers challenges his civil commitment as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (the SVP statute). He raises three issues on appeal. We hold that the trial court had subject matter jurisdiction over the case, and that the evidence is legally and factually sufficient to support the jury's verdict.
SUBJECT MATTER JURISDICTION
Evers contends that Chapter 841 applies to a person with an "anticipated release date," and that this requirement is jurisdictional. He argues he did not have an anticipated release date because at the time of the filing of the State's petition, he was about to be placed on SiSP parole (Super-Intensive Supervision Program), and he was on parole at the time of trial. See Tex. Gov't Code Ann. § 508.317 (West 2012).
Subject matter jurisdiction concerns the power of a court to decide a particular type of controversy. Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 367 (Tex. 2012) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 74-75 (Tex. 2000)). If a statutory requirement is jurisdictional, the requirement implicates the trial court's power to decide the case. See In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306 (Tex. 2010); see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (Subject matter jurisdiction is a question of law.).
The phrase "anticipated release date" is found in section 841.021. See Tex. Health & Safety Code Ann. § 841.021 (West Supp. 2012). Section 841.022 creates a multidisciplinary team to review available records of a possible sexually violent predator. See id. § 841.022 (West Supp. 2012). Before the person's anticipated release date, the Texas Department of Criminal Justice notifies the multidisciplinary team of the anticipated release of a person who is serving a sentence for a sexually violent offense and who may be a repeat sexually violent offender. Id. § 841.021. The State eventually determines whether to file a petition for involuntary civil commitment of the individual. See In re Commitment of Fisher, 164 S.W.3d 637, 640-41 (Tex. 2005).
In determining whether the reference to an "anticipated release date" in this statute is jurisdictional, we apply statutory interpretation principles. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). We examine the statute's plain language. Id. The language "anticipated release date" does not indicate that the provision is jurisdictional, nor does the statute specifically mandate the date as a prerequisite to suit. See id. at 395. Sections 841.021 and 841.022 do not indicate that the consequence of not having an anticipated release date is dismissal of the petition. See In re United Servs. Auto. Ass'n, 307 S.W.3d at 308. The text does not indicate that the Legislature intended the provision to be jurisdictional. See, e.g., In re Commitment of Petrus, No. 09-11-00390-CV, 2012 WL 2150336, at *2 (Tex. App.—Beaumont June 14, 2012, no pet.) (failure to distinguish between requirements for establishing jurisdiction and pleading it); In re Commitment of Hall, No. 09-09-00387-CV, 2010 WL 3910365, at **1-3 (Tex. App.—Beaumont Oct. 7, 2010, no pet.) (Chapter 841's requirement that defendant be a "repeat sexually violent offender" is not jurisdictional.); In re Commitment of Browning, 113 S.W.3d 851, 860 (Tex. App.—Austin 2003, pet. denied) ("[P]rimary purpose of requiring proof of prior convictions is evidentiary.").
Whether or not a person released on parole has an "anticipated release date" is not a jurisdictional issue. Article 5, section 1 of the Texas Constitution gives the Texas Legislature the power to establish courts as it deems necessary, and to set out the jurisdiction of those courts. See Tex. Const. art. 5, §1. In section 24.579(a) of the Government Code, the Legislature created the 435th District Court in Montgomery County and provided that court with jurisdiction over civil commitment proceedings under Chapter 841, Health and Safety Code. See Tex. Gov't Code Ann. § 24.579(a) (West Supp. 2012).
Section 841.041(a) provides that the State shall allege in a civil commitment petition under Chapter 841 that "the person is a sexually violent predator" and state "facts sufficient to support the allegation." Tex. Health & Safety Code Ann. § 841.041(a) (West 2010). Section 841.041(a) provides that the petition be filed "in a Montgomery County district court other than a family district court[.]" Id.
Filed in the 435th District Court in Montgomery County, the petition in this case includes allegations, as set out in sections 841.041(a) and 841.003(a), that Evers is "a sexually violent predator" and that he is "a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence." See id. §§ 841.003(a), 841.041(a) (West 2010). The petition sets out Evers's six convictions for sexually violent offenses. The State alleged facts that affirmatively demonstrated the trial court's subject matter jurisdiction. We overrule issue one.
SUFFICIENCY OF THE EVIDENCE
The State must prove beyond a reasonable doubt that the person to be committed is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062(a) (West 2010); In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). A person is a "sexually violent predator" if the person: "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code Ann. § 841.003(a).
In a legal sufficiency challenge, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find, beyond a reasonable doubt, the elements required for commitment under the SVP statute. See In re Commitment of Mullens, 92 S.W.3d at 885. A factual sufficiency challenge to an SVP commitment order requires this Court to weigh the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice so great that we are compelled to grant a new trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied).
In issues two and three, Evers argues the evidence is insufficient to support a finding that he is likely to commit a predatory act of sexual violence while he is on parole supervision. He asserts that section 508.141(e)(2) of the Government Code requires a finding by the parole board that a person is "able and willing to fulfill the obligations of a law-abiding citizen." Tex. Gov't Code Ann. § 508.141(e)(2) (West 2012). And he contends that the parole board, which apparently placed him on SISP parole, must have found he will not engage in a predatory act of sexual violence.
Section 508.141 makes no reference to a behavioral abnormality, a requirement for civil commitment under Chapter 841. See Tex. Health & Safety Code Ann. § 841.002(2) (West Supp. 2011), § 841.003(a). The SVP statute was enacted because there are persons who are particularly dangerous as a result of a behavioral abnormality. See Tex. Health & Safety Code Ann. § 841.001 (West 2010). Chapter 841 does not assign any role to the parole board in making that determination. Evers argues that the parole division "should be considered the superior institutional actor to make the call on whether appellant will be dangerous." He presents no authority for this proposition. See Tex. R. App. P. 38.1(i).
Evers does not directly challenge the finding that he has a behavioral abnormality. He argues that the State had to show he would engage in a predatory act of sexual violence while he is on SISP parole. Although the jury could consider his brief record while on SISP parole, the jury was not confined to consideration of only that time frame.
Evers had previously been convicted of six offenses of burglary of a habitation with intent to commit rape. The experts appointed by the State to evaluate Evers reviewed records indicating Evers raped six women over a two year period from 1979-1980. He was sentenced in 1982 for six offenses and paroled in 1990. In 1991, Evers was convicted of burglary of a habitation and was returned to prison. He was released on SISP parole in March 2011. See Tex. Gov't Code Ann. § 508.317. The statute provides that the super-intensive supervision program "must provide the highest level of supervision provided by the department." See id.
The State's experts testified that Evers suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Dr. Thorne, a clinical and forensic psychologist, diagnosed Evers with paraphilia not otherwise specified (a sexual disorder), a depressive disorder, a long-standing psychotic disorder, and an antisocial personality disorder (defiance of authority, violations of laws or expectations of society). Dr. Arambula, a psychiatrist, made similar diagnoses, in addition to diagnoses of polysubstance abuse by history and a form of paraphilia with features of sadism. The jury heard evidence regarding Evers's criminal history, which included the six rapes involving the use of threats, violence, and weapons. The jury also heard evidence regarding actuarial tests (with scores indicating a high risk of reoffending), victimization of women, antisocial personality disorder, sadistic behavior, and a history of drug abuse. The jury also heard testimony regarding Evers's conduct in prison. He had 47 disciplinary infractions. Dr. Thorne testified Evers was still exhibiting in prison the sexual deviancy that he exhibited outside prison. Based on the significant risk factors, Dr. Arambula testified that Evers is at substantial risk to do what he has done in the past.
Arnold Pruitt, Evers's parole officer on SISP, testified Evers had only been on the supervision for approximately a month, and that he had complied with the probation requirements during that time. Pruitt explained that parolees usually comply for a month. He indicated that those on SISP parole usually begin having problems with the supervision at about three months, but that parolees over fifty typically comply with the supervision requirements. Pruitt also testified he has had parolees violate the intensive supervision even though they were GPS monitored.
Evers maintains that at age fifty he is a changed man. He has completed his GED, taken some college courses, and completed drug and alcohol classes and the Changes class in prison. He explained that the fourteen female officers who reported instances of his sexual misconduct were lying.
Considering all the evidence in the light most favorable to the verdict, we conclude the jury could reasonably find beyond a reasonable doubt that Evers has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The record does not reflect a risk of injustice that compels granting a new trial. The evidence is legally and factually sufficient to support the jury's verdict. Issues two and three are overruled. The trial court's judgment is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.