in Re Commitment of Timothy Ray Bradshaw

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00570-CV
____________________

IN RE COMMITMENT OF TIMOTHY RAY BRADSHAW

_______________________________________________________ ______________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-02-02067 CV
________________________________________________________ _____________

MEMORANDUM OPINION

After a jury found Timothy Ray Bradshaw to be a sexually violent predator,

the trial court rendered an order of civil commitment establishing the terms that

govern his civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001-

.151 (West 2010 & Supp. 2012) (SVP statute). Bradshaw timely filed an appeal,

raising ten issues that challenge the constitutionality of the SVP statute, the State’s

use of a prior conviction—later set aside—to establish Bradshaw’s status as a

repeat sexually violent offender, the legal and factual sufficiency of the evidence

supporting the jury’s verdict, and whether the trial court and the attorneys

1
representing the State made improper comments during voir dire that harmed

Bradshaw by allegedly minimizing the jury’s role in the trial of his case. We

conclude that all of Bradshaw’s issues are without merit, and we affirm the trial

court’s judgment.

The Statute

Under the SVP statute, the State bears the burden of proving that the person

it seeks to commit for treatment is a sexually violent predator beyond a reasonable

doubt. Id. § 841.062 (West 2010). As defined by the Legislature, a sexually violent

predator is a person who “(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.” Id § 841.003(a) (West 2010). The term

“‘behavioral abnormality’ means 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. 2012).

We have explained that “[a] condition which affects either emotional capacity or

volitional capacity to the extent a person is predisposed to threaten the health and

safety of others with acts of sexual violence is an abnormality which causes serious

2
difficulty in behavior control.” In re Commitment of Almaguer, 117 S.W.3d 500,

506 (Tex. App.—Beaumont 2003, pet. denied).

Constitutional Challenge

In issue one, Bradshaw contends that the SVP statute is facially

unconstitutional and violates his due process rights under the Fourteenth

Amendment, as that statute was interpreted by the Texas Supreme Court in In re

Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012), cert. denied 133

S.Ct. 2746 (2013). We considered and rejected the same argument in another SVP

commitment proceeding, In re Commitment of Anderson. 392 S.W.3d 878, 886

(Tex. App.—Beaumont 2013, pet. denied). In Anderson, we explained that “[w]e

do not read the Bohannan opinion as eliminating a statutory requirement, or as

altering the proof required under the statute to find that a person is a sexually

violent predator.” Id. For the same reasons that we explained in Anderson, we

overrule issue one.

Repeat Sexually Violent Offender

In issue two, Bradshaw contends the evidence is legally insufficient to

support a finding that he is a repeat sexually violent offender because his 1986

conviction for sexual assault, one of the convictions used to establish his status as a

repeat sexually violent predator, was set aside in 1990 after he successfully

3
completed probation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 20 (West Supp.

2012).

Bradshaw’s 1986 conviction is based on a sexual assault that Bradshaw

committed on August 21, 1984. The evidence in the record shows that in 1986,

Bradshaw was convicted of sexual assault and sentenced to eight years in prison,

but the convicting court then placed him on probation. In 1990, the convicting

court found that Bradshaw had satisfactorily fulfilled the conditions of his

probation, terminated Bradshaw’s probation, permitted him to withdraw his plea,

dismissed the indictment, and the convicting court then set aside Bradshaw’s 1986

conviction. See id.

Bradshaw argues that using his 1986 conviction to establish his status as a

repeat sexually violent offender is barred by operation of the judicial clemency

provision of Article 42.12 of the Texas Code of Criminal Procedure. When

Bradshaw committed the sexual assault which resulted in his 1986 conviction, the

Code of Criminal Procedure provided:

In case the defendant has been convicted . . . and the court has
discharged the defendant hereunder, such court may . . . permit the
defendant to withdraw his plea, and shall dismiss the . . . indictment
against such defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense[.]

4
Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 12, sec. 7, 1983 Tex. Gen. Laws

1568, 1591-92 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 20).

According to Bradshaw, the State cannot use the 1986 sexual assault conviction to

prove that he is a repeat sexually violent offender because he was released from all

penalties and disabilities resulting from the offense. See id.

Whether Bradshaw’s 1986 conviction can be used to establish that Bradshaw

is subject to civil commitment proceedings as a repeat sexually violent predator is

a matter of statutory construction. With respect to defining the prior convictions

that can be used to establish a person’s status as a sexually violent predator, the

SVP statute provides:

A person is a repeat sexually violent offender for the purposes of this
chapter if the person is convicted of more than one sexually violent
offense and a sentence is imposed for at least one of the offenses or if:
(1) the person:
(A) is convicted of a sexually violent offense,
regardless of whether the sentence for the offense was
ever imposed or whether the sentence was probated and
the person was subsequently discharged from community
supervision;
(B) enters a plea of guilty or nolo contendere for a
sexually violent offense in return for a grant of deferred
adjudication;
(C) is adjudged not guilty by reason of insanity of
a sexually violent offense; or
(D) is adjudicated by a juvenile court as having
engaged in delinquent conduct constituting a sexually
violent offense and is committed to the Texas Youth

5
 Commission under Section 54.04(d)(3) or (m), Family
Code; and
(2) after the date on which under Subdivision (1) the person is
convicted, receives a grant of deferred adjudication, is adjudged not
guilty by reason of insanity, or is adjudicated by a juvenile court as
having engaged in delinquent conduct, the person commits a sexually
violent offense for which the person:
(A) is convicted, but only if the sentence for the
offense is imposed; or
(B) is adjudged not guilty by reason of insanity.

Tex. Health & Safety Code Ann. § 841.003(b) (West 2010).

“When a statute is clear and unambiguous, courts need not resort to rules of

construction or extrinsic aids to construe it, but should give the statute its common

meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).

A person is a “repeat sexually violent offender” for purposes of the SVP statute if

the person is convicted of more than one sexually violent offense and a sentence is

imposed for at least one of the offenses or if the person “is convicted of a sexually

violent offense, regardless of . . . whether the sentence was probated and the person

was subsequently discharged from community supervision[.]” Tex. Health &

Safety Code Ann. § 841.003(b)(1)(A).

Bradshaw was convicted of sexual assault in 1986, his sentence was

probated, and he was later discharged from probation. In 1993, Bradshaw was

convicted and sentence was imposed because Bradshaw committed an aggravated

sexual assault. See id. By virtue of his 1986 and 1993 convictions, it appears that
6
Bradshaw meets the definition of a repeat sexually violent offender under the SVP

statute, but he argues the State cannot use the 1986 offense because he was

released from all penalties and disabilities resulting from the offense when he

received judicial clemency in 1990.

The Texas Supreme Court considered an argument similar to the one

Bradshaw advances that addressed prior convictions under the 1996 version of the

Concealed Handgun Act. See Tune v. Tex. Dep’t of Pub. Safety, 23 S.W.3d 358,

363 (Tex. 2000). In Tune, the statute at issue defined “convicted” as follows:

[A]n adjudication of guilt or an order of deferred adjudication entered
against a person by a court of competent jurisdiction whether or not:
(A) the imposition of the sentence is subsequently probated and the
person is discharged from community supervision; or (B) the person is
pardoned for the offense, unless the pardon is expressly granted for
subsequent proof of innocence.

Id.; see also Tex. Gov’t Code Ann. § 411.171(4) (West 2012). 1 Using that

definition, the Texas Supreme Court read the Concealed Handgun Act, with

respect to the term “convicted,” to include a person whose conviction was set aside

1
In 2009 the Legislature amended this definition of “convicted” to exclude
an adjudication of guilt or an order of deferred adjudication that has been
subsequently “vacated, set aside, annulled, invalidated, voided, or sealed under any
state or federal law.” See Act of June 1, 2009, 81st Leg., R.S., ch. 1146, §§ 6.06,
11.02, sec. 411.174(4), 2009 Tex. Gen. Laws 3583, 3624, 3635 (current version at
Tex. Gov’t Code Ann. § 411.171(4) (West 2012)). No similar change has occurred
with respect to section 841.003(b) of the Texas Health and Safety Code.

7
pursuant to the judicial clemency provision of article 42.12, section 20 of the Code

of Criminal Procedure. Tune, 23 S.W.3d at 363-64.

The SVP statute and the 1996 version of the Concealed Handgun Act use

similar language to define a conviction in a way that includes persons who have

received regular community supervision and are subsequently discharged. Under

the SVP statute, a person “is convicted . . . regardless of whether the sentence for

the offense was ever imposed or whether the sentence was probated and the person

was subsequently discharged from community supervision[;]” under the version of

the Concealed Handgun Act at issue in Tune, a person is convicted if “an

adjudication of guilt . . . [is] entered . . . whether or not . . . the imposition of the

sentence is subsequently probated and the person is discharged from community

supervision[.]” Compare Tex. Health & Safety Code Ann. § 841.003(b)(1)(A),

with Tune, 23 S.W.3d at 363. In Tune, the Supreme Court rejected Tune’s

argument that he could not be considered to have been “convicted” for purposes of

the Concealed Handgun Act by operation of the judicial clemency provision in

article 42.12, section 20. Tune, 23 S.W.3d at 364. By using a specific definition

that included persons who successfully completed community supervision, the

Supreme Court concluded that Tune could not obtain a concealed handgun license

even though the general penalties and disabilities resulting from his prior

8
conviction were discharged when he was discharged from community supervision.

Id.

Bradshaw argues we should decline to apply the higher court’s reasoning in

Tune to the SVP statute, and that we should instead apply the reasoning of the

Texas Court of Criminal Appeals in a case that involved a felon’s conviction for

the unlawful possession of a firearm. See Cuellar v. State, 70 S.W.3d 815 (Tex.

Crim. App. 2002). We disagree that Cuellar compels a result different from the

result reached by applying the Court’s reasoning in Tune.

In Cuellar, the Court of Criminal Appeals held that the defendant had been

released from all penalties and disabilities resulting from his conviction and

consequently was not a person who had been convicted for purposes of section

46.04 of the Texas Penal Code. Id. at 820. Under the criminal statute at issue in

Cuellar, it was an offense for a person who had been convicted of a felony to

possess a firearm, but the statute did not define “convicted” to have a meaning

other than its ordinary meaning. Id. at 816, 820; see generally Tex. Penal Code

Ann. § 46.04 (West 2011). The Court of Criminal Appeals noted that the

Legislature had included two exceptions in article 42.12, and it stated that “[t]he

Legislature could add other exceptions if it so chooses.” Id. at 820.

9
 In the section of the SVP statute addressing prior convictions, the SVP

statute does not prohibit the use of convictions that are later discharged from

serving as one of the predicate convictions needed to establish that a person is

subject to civil commitment proceedings. See Tex. Health & Safety Code Ann. §

841.003(b)(1)(A). Section 841.003 of the Health and Safety Code contains an

exception that allows a conviction discharged after the successful completion of

probation to be used to establish a person’s status as a repeat sexually violent

predator. Id. Because the State could use Bradshaw’s 1986 conviction as evidence

to prove Bradshaw’s status as a repeat sexually violent predator, we conclude that

Bradshaw’s argument that he did not have more than one prior conviction of a

sexually violent offense, as required by the SVP statute, is without merit. We

overrule issue two.

In issue three, Bradshaw contends that the use of his 1986 sexual assault

conviction violates the ex post facto and retroactive law provisions of the Texas

Constitution. See Tex. Const. art. I, § 16. Because the SVP statute is civil, and it is

not punitive, the prohibition against ex post facto laws does not apply. In re

Commitment of Fisher, 164 S.W.3d 637, 653 (Tex. 2005); In re Commitment of

Browning, 113 S.W.3d 851, 858-59 (Tex. App.—Austin 2003, pet. denied);

Beasley v. Molett, 95 S.W.3d 590, 608 (Tex. App.—Beaumont 2002, pet. denied).

10
 The Texas Supreme Court has explained that “[t]he prohibition against

retroactive application of laws does not apply to procedural, remedial, or

jurisdictional statutes, because such statutes typically do not affect a vested right.”

Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548

(Tex. 2010). The SVP statute includes legislative findings (1) “that a small but

extremely dangerous group of sexually violent predators exists and that those

predators have a behavioral abnormality that is not amenable to traditional mental

illness treatment modalities and that makes the predators likely to engage in

repeated predatory acts of sexual violence[;]” (2) “the existing involuntary

commitment provisions . . . are inadequate to address the risk of repeated predatory

behavior that sexually violent predators pose to society[;]” (3) “treatment

modalities for sexually violent predators are different from the traditional treatment

modalities for persons appropriate for involuntary commitment[;]” and (4) “a civil

commitment procedure for the long-term supervision and treatment of sexually

violent predators is necessary and in the interest of the state.” Tex. Health & Safety

Code Ann. § 841.001 (West 2010). These findings indicate that the SVP statute

was intended by the Legislature as a remedial statute.

11
 Also, the application of the SVP statute to Bradshaw does not violate any

restriction against retroactive laws. Regarding retroactive laws claims, generally,

the Texas Supreme Court has stated:

[T]he constitutional prohibition against retroactive laws does not
insulate every vested right from impairment, nor does it give way to
every reasonable exercise of the Legislature’s police power; it protects
settled expectations that rules are to govern the play and not simply
the score, and prevents the abuses of legislative power that arise when
individuals or groups are singled out for special reward or
punishment. No bright-line test for unconstitutional retroactivity is
possible. Rather, in determining whether a statute violates the
prohibition against retroactive laws in article I, section 17 of the Texas
Constitution, courts must consider three factors in light of the
prohibition’s dual objectives: the nature and strength of the public
interest served by the statute as evidenced by the Legislature’s factual
findings; the nature of the prior right impaired by the statute; and the
extent of the impairment. The perceived public advantage of a
retroactive law is not simply to be balanced against its relatively small
impact on private interests, or the prohibition would be deprived of
most of its force. There must be a compelling public interest to
overcome the heavy presumption against retroactive laws. To be sure,
courts must be mindful that statutes are not to be set aside lightly.

Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 145–46 (Tex. 2010)

(footnotes omitted).

The public interest served by the SVP statute includes: “(1) the parens

patriae power to provide care to its citizens who are unable because of emotional

disorders to care for themselves; and (2) the police power to protect the community

from the dangerous tendencies of some who lack volitional control over certain

12
types of dangerous behaviors.” In re Commitment of Rushing, No. 09-11-00268-

CV, 2012 WL 4466421, at *2 (Tex. App.—Beaumont Sept. 27, 2012, no pet.)

(mem. op.). The right impaired is the right granted by article 42.12, section 20, to

be free from a disability resulting from the commission of the offense—a right that

would apply, but for the plain language of the SVP statute. See Tex. Code Crim.

Proc. Ann. art. 42.12, § 20.

Bradshaw claims the SVP statute interferes with his expectation about a

prior criminal judgment that was set aside, but his expectation is disturbed only if it

is determined that he is presently experiencing such a serious difficulty in

controlling his behavior that he is a menace to the health and safety of another. Id.;

see also Tex. Health & Safety Code Ann. §§ 841.002(2), 841.003. We conclude

there is a compelling public interest in committing for treatment persons like

Bradshaw who a jury has determined is presently unable to control his sexually

violent impulses. We conclude the SVP statute does not violate Texas’s

constitutional prohibition against retroactive laws, and we overrule issue three. See

Tex. Const. art. I, § 16.

Legal and Factual Sufficiency

Issues four through nine challenge the legal and factual sufficiency of the

evidence supporting the jury’s finding that Bradshaw is a sexually violent predator.

13
In issues four and five, Bradshaw argues the evidence is legally and factually

insufficient because the State failed to link a mental condition to the evidence of

Bradshaw’s future dangerousness. In issues six and seven, Bradshaw contends

there is no evidence or insufficient evidence that he has serious difficulty

controlling his behavior. In issues eight and nine, Bradshaw contends the evidence

is legally and factually insufficient to support a finding that Bradshaw is currently

a menace to the health and safety of another person and that he is currently likely

to engage in a predatory act of sexual violence. The specific legal challenge

Bradshaw presents in issue eight contends the State failed to prove his future

dangerousness beyond a reasonable doubt.

Under the SVP statute, the State must prove, beyond a reasonable doubt, that

“the person is a sexually violent predator.” Tex. Health & Safety Code Ann. §

841.062(a). As defined by the Legislature, a sexually violent predator is a person

who “(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.” Id. § 841.003(a).

With respect to issues four, six, and eight, Bradshaw failed to raise the

complaints he has made on appeal when he made an oral motion for directed

verdict or in his written motion for new trial. During the charge conference

14
Bradshaw asked the trial court to submit three separate questions asking whether

Bradshaw is a repeat sexually violent offender, whether he suffers from a

behavioral abnormality, and whether he is likely to engage in a predatory act of

sexual violence, but he did not object to the issue submitted on the grounds that he

asserts in his brief on appeal. See Tex. R. Civ. P. 274. In jury trials, Rule 274 of the

Rules of Civil Procedure requires that a complaint regarding legal insufficiency be

raised in the trial court to preserve the complaint for review on appeal. Id. The

Texas Supreme Court has explained:

No evidence points must be preserved through one of the following
procedural steps in the trial court: (1) a motion for instructed verdict;
(2) a motion for judgment notwithstanding the verdict; (3) an
objection to the submission of the issue to the jury; (4) a motion to
disregard the jury’s answer to a vital fact issue; or, (5) a motion for
new trial.

Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985).

Bradshaw failed to preserve error regarding the complaints he presents in issues

four, six, and eight; consequently, these issues are overruled. See Tex. R. App. P.

33.1.

Bradshaw’s motion for new trial raised a factual sufficiency issue. “A point

in a motion for new trial is a prerequisite to . . . [a] complaint of factual

insufficiency of the evidence to support a jury finding[.]” Tex. R. Civ. P.

15
324(b)(2). Bradshaw’s factual insufficiency arguments are preserved for our

review.

In reviewing a challenge to the factual sufficiency of the evidence in SVP

cases, we must weigh the evidence to determine whether a verdict that is supported

by legally sufficient evidence nevertheless reflects a risk of injustice that compels

ordering a new trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—

Beaumont 2011, pet. denied). The risk of an injustice arising from the weight of

the evidence is necessarily slight when the burden of proof is beyond a reasonable

doubt and the evidence is legally sufficient. Id. Nonetheless, “if in the view of the

appellate court after weighing the evidence, the risk of an injustice remains too

great to allow the verdict to stand, the appellate court may grant the defendant a

new trial.” Id.

Bradshaw contends the opinions expressed by the State’s psychiatrist, Dr.

Sheri Gaines, were based upon nothing more than Bradshaw’s having committed

two sexual assaults. Dr. Gaines did testify that “the main reason I came to my

opinion is the facts and data surrounding his sexual offenses[,]” which included a

rape committed at knifepoint, but she explained that these two offenses were not

the only evidence she considered.

16
 Dr. Gaines described the methodology she used to form her opinions.

Among other things, she reviewed Bradshaw’s records and a report on Bradshaw

compiled by the Multidisciplinary Team, she interviewed Bradshaw, and she

reviewed the depositions taken in his case. According to Dr. Gaines, she followed

a methodology that is consistent with the accepted standards in the field of

psychiatry and her opinions are based on reliable scientific data.

Dr. Gaines diagnosed Bradshaw with paraphilia not otherwise specified—

nonconsent type, paranoid schizophrenia, alcohol dependence in remission in a

controlled environment, marijuana dependence in remission in a controlled

environment, antisocial personality disorder, and mild mental retardation. She

explained that her diagnoses were based on criteria in the Diagnostic and Statistical

Manual. According to Dr. Gaines, a diagnosis of paraphilia concerns an expression

of sexual deviance through obtaining arousal and having sex with nonconsenting

partners through threats of violence. Dr. Gaines stated that she was comfortable

with her diagnosis of paraphilia because Bradshaw exhibited the essential features

of the diagnosis, including recurrent, intense sexually arousing fantasies, sexual

urges, or behaviors generally involving the suffering or humiliation of one’s

partner, and involving non-consenting persons. Dr. Gaines noted that both her

evaluation of the records and her interview with Bradshaw indicated a long history

17
of suffering from psychosis, including having chronic delusions and auditory and

tactile hallucinations. When she interviewed him, Bradshaw was not getting mental

health treatment, and he was actively psychotic during their interview. According

to Dr. Gaines, she considered Bradshaw’s psychosis in concluding that he had a

behavioral abnormality because the records reflected he had offended while

symptomatic from his condition of paranoid schizophrenia. Bradshaw, during his

interview with Dr. Gaines, acknowledged having, from childhood and adolescence,

several of the criteria that Dr. Gaines explained were applied to a diagnosis for

conduct disorder, including truancy, enuresis, fighting with weapons, and

disrespect for authority. Dr. Gaines explained how her diagnosis of Bradshaw’s

psychiatric disorders influenced her professional opinion that Bradshaw suffers

from a behavioral abnormality that makes him likely to engage in predatory acts of

sexual violence.

According to Dr. Gaines, Bradshaw’s antisocial personality disorder coupled

with a paraphilia, sexual deviancy and schizophrenia are together indicative that he

has a problem controlling his emotional or volitional capacity. Although Dr.

Gaines noted that Bradshaw’s prison record did not show that he had committed

sexual offenses while in prison, Bradshaw’s sixty-five disciplinary cases while

incarcerated included fighting, fighting with a weapon, assaulting security, and

18
assaulting other inmates. Dr. Gaines explained that Bradshaw’s extensive

disciplinary record showed persistent, repetitive behavior where he continued to

break the rules even in a controlled environment. Dr. Gaines further noted that

Bradshaw had committed non-sexual criminal offenses when he was not

imprisoned.

Dr. Gaines also explained what she felt were Bradshaw’s risk factors for

recidivism, and these included his deviant sexuality, mental illness, low intellectual

functioning, substance abuse, lack of a support system, and his previous use of a

weapon when he committed a sexual offense. An actuarial test that Bradshaw took

and that Dr. Gaines relied on in forming her opinions placed him in the low-

moderate category of risk, but, according to Dr. Gaines, the psychologist who

administered the test also expressed a clinical judgment that Bradshaw has a

behavioral abnormality. Dr. Gaines testified that it was significant to her opinions

that Bradshaw had not had sex offender treatment.

The jury is entitled to draw reasonable inferences from basic facts to

determine ultimate facts, and to resolve conflicts and contradictions in the evidence

by believing all, part, or none of a witness’s testimony. In re Commitment of

Barbee, 192 S.W.3d 835, 842 (Tex. App.—Beaumont 2006, no pet.). The record

does not reflect a risk of injustice that compels granting a new trial. See Day, 342

19
S.W.3d at 213. We hold the evidence is factually sufficient to support the jury’s

verdict. We overrule issues five, seven, and nine.

Voir Dire

Issue ten complains of statements made by the trial court and the State’s

attorney during jury selection that Bradshaw argues minimized the jury’s role in

resolving his case. Bradshaw did not object to the comments when they were made

during voir dire, and he did not raise a complaint about these same comments in

his motion for new trial. Bradshaw failed to preserve the complaint he raises in

issue ten for appeal. See Tex. R. App. P. 33.1. We overrule issue ten, and we

affirm the trial court’s judgment.

AFFIRMED.

________________________________
HOLLIS HORTON
Justice

Submitted on September 19, 2013
Opinion Delivered October 31, 2013
Before Gaultney, Kreger, and Horton, JJ.

20