in Re Commitment of Raymond Lee Smith

In The

Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-12-00189-CV
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IN RE COMMITMENT OF RAYMOND LEE SMITH
________________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-08-08775-CV
________________________________________________________________________

MEMORANDUM OPINION

The State of Texas filed a petition to commit Raymond Lee Smith as a sexually

violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2012). A jury found that Smith is a sexually violent predator, and the trial court

signed a final judgment and order of civil commitment. In two appellate issues, Smith

challenges the trial court’s subject matter jurisdiction and the trial court’s exclusion of

testimony concerning the terms of his “Super Intensive Supervision Parole[.]” In a

supplemental appellate issue, filed with permission of this Court, Smith asserts that the

Texas Supreme Court’s opinion in In re Commitment of Bohannan, No. 10-0605, 2012

WL 3800317 (Tex. Aug. 31, 2012) (not yet released for publication), rendered certain

portions of Chapter 841 “facially unconstitutional and in violation of the Fourteenth

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Amendment’s due process clause.” We affirm the trial court’s judgment and order of

civil commitment.

ISSUE ONE

In his first issue, Smith argues that the trial court lacked subject matter jurisdiction

of the State’s civil commitment petition because “the Legislature intended the civil

commitment provisions of Chapter 841 of the Texas Health and Safety Code to apply

only to an individual who has completed his sentence in its entirety, unlike Mr. Smith,

who is to be released on parole.” Smith asserts that because he is set to receive parole,

which is a type of conditional release, his liberty will still be restrained, thereby removing

him from the purview of Chapter 841. Finally, Smith also argues that his case “is not

ripe for adjudication” because the potential injury to the State (i.e. that he will be in

society without supervision) is neither direct nor immediate.

As this Court recently explained, the phrase “anticipated release date” is found in

section 841.021. Tex. Health & Safety Code Ann. § 841.021 (West Supp. 2012); In re

Commitment of Evers, ____ S.W.3d ____, No. 09-11-00430-CV, 2012 WL 6213508, at

*1 (Tex. App.—Beaumont Dec. 13, 2012, pet. filed) (not yet released for publication).

Section 841.022 creates a multidisciplinary team to review the records of a person

referred to the team as a possible sexually violent predator under section 841.021. Tex.

Health & Safety Code Ann. § 841.022 (West Supp. 2012); Evers, 2012 WL 6213508, at

**1-2. “Section 841.021(c) provides that at least sixteen months before the person’s

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anticipated release date (barring exigent circumstances), TDCJ will give notice of that

person’s release to the multidisciplinary team so that the team can make certain specified

assessments.” Evers, 2012 WL 6213508 at *2.

As we explained in Evers, “[t]he statute does not distinguish between those

anticipated to be released on parole and those anticipated to be released unconditionally

as a result of completion of their sentences.” Id. We rejected Evers’s argument that the

term “release” as used in the statute encompassed only those offenders who were to be

released from prison because of completion of their sentences. Id. “[W]hen the

Legislature adopts a provision that imposes a requirement but does not specify whether

the failure to satisfy that requirement defeats the court’s jurisdiction, a reviewing court

presumes that the Legislature did not intend to make the provision jurisdictional.” Id. at

*3. “This presumption is overcome only by clear legislative intent to the contrary.” Id.

“Section 841.021 does not provide, or even suggest, that the provision is jurisdictional,

nor does the statute specifically mandate that an anticipated release date is a prerequisite

to suit.” Id. We concluded in Evers that reading into the statutes an exception for

individuals released on parole would not be consistent with the meaning of the applicable

statutory provisions. Id. at *4.

Like the appellant in Evers, Smith raises a jurisdictional challenge based upon

ripeness. As we explained in Evers, “the ripeness argument here has no merit. Whether

the person is convicted of another offense after the State files a petition seeking civil

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commitment, as was the case in Robertson, or whether a person is released on parole or

released unconditionally, there is nothing in sections 841.021, .022, .023, or .041 that

indicates the Legislature intended to divest the trial court of jurisdiction.” Id. at *5

(citing In re Commitment of Robertson, No. 09-09-00307-CV, 2010 WL 3518509, at *13

(Tex. App.—Beaumont Sept. 9, 2010, pet. denied) (mem. op.)). For the same reasons set

forth in Evers, we reject Smith’s ripeness argument.

In its petition, which was filed in the 435th District Court in Montgomery County,

the State alleged that Smith is “a sexually violent predator” and “a repeat sexually violent

offender who suffers from a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence.” The petition listed Smith’s three convictions for

sexually violent offenses. The State’s petition alleged facts that affirmatively

demonstrated the trial court's subject matter jurisdiction. See Tex. Health & Safety Code

Ann. § 841.041(a) (West 2010) (requiring that the State allege in its civil commitment

petition that the person is a sexually violent predator, state facts sufficient to support that

allegation, and file its petition “in a Montgomery County district court other than a family

district court”). Because the trial court had subject matter jurisdiction over the

commitment proceeding, we overrule issue one.

ISSUE TWO

In his second issue, Smith argues that the trial court erred by excluding testimony

regarding Smith’s super intensive supervision parole plan after determining that such

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testimony was irrelevant to the issue of whether Smith is likely to engage in a predatory

act of sexual violence. Specifically, Smith complains that the trial court refused to allow

Dr. Timothy Proctor, Dr. Michael Arambula, and Dr. Walter Quijano to testify

concerning the terms of Smith’s super intensive supervision parole plan and the effect of

that level of supervision upon Smith’s likelihood of engaging in a predatory act of sexual

violence. Smith also argues that due process required that he be able to present such

evidence. Citing Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d

501 (1997), Smith contends that the trial court’s ruling violated the Constitution because

it did not require the jury to find that Smith was likely to engage in future acts of sexual

violence.

“We review a trial court’s evidentiary rulings for abuse of discretion.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re

Commitment of Salazar, No. 09-07-345 CV, 2008 WL 4998273, at *2 (Tex. App.—

Beaumont Nov. 26, 2008, pet. denied) (mem. op.). Error may not be predicated upon a

ruling that excludes evidence unless the party’s substantial rights are affected. Tex. R.

Evid. 103(a). We will not reverse a judgment based on an error of law unless that error

probably caused the rendition of an improper judgment or probably prevented the

appellant from properly presenting the case to the appellate court. Tex. R. App. P.

44.1(a).

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 Forensic psychologist Dr. Timothy Proctor, a witness for the State, testified that

based on his education, training, experience, records he reviewed, and his interview with

Smith, he determined that Smith suffers from a behavioral abnormality that makes him

likely to commit predatory acts of sexual violence. Proctor identified Smith’s history of

juvenile offenses, as well as his non-sexual antisocial behavior, as significant in

calculating Smith’s risk for committing future criminal acts. Proctor testified that Smith

committed two aggravated rapes, and Smith’s mandatory supervision was revoked after

he was charged with stalking.

Proctor diagnosed Smith with sexual sadism and antisocial personality disorder,

and he testified that “it is a particularly dangerous combination to have those two

diagnoses co-existing.” Proctor also explained that both sexual sadism and antisocial

personality disorder tend to persist throughout a person’s life. Proctor testified that he

administered the Hare Psychopathy Checklist and Static-99R to Smith. According to

Proctor, Smith’s score on the Static-99R placed Smith in the moderate/high range for risk

of reoffending, and Smith’s score on the Hare Psychopathy Checklist indicated that

although Smith was not a psychopath, Smith had psychopathic characteristics “and his

score is “relevant to his risk, but . . . not . . . an indication of psychopathy.”

When asked during cross-examination whether very close supervision impacted

Smith’s behavior, Proctor testified that it had “some impact, but not the impact you

would want” because Smith violated the terms of his mandatory supervision. The State

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objected to the relevance of Smith’s counsel’s question about whether Smith had been

approved for super intensive supervision parole. The State’s counsel argued, “We’re

talking about his behavioral abnormality as it exists today . . . . What supervision he’s

going to be under and what level he’s going to be under in the future is not relevant to the

determination the jury has to make about a behavioral abnormality today.” In response,

Smith’s counsel argued, “It goes to the likelihood of him reoffending. If he’s under this

intensive supervision, then it may be less likely that he is to reoffend in the future.” The

trial judge instructed the State’s attorney to “[a]sk him that question[,]” Proctor testified,

“I don’t know. It would depend on what the restrictions were . . . .” When Smith’s

counsel asked Proctor what some of the restrictions were, the State objected on grounds

that the answer constituted speculation, and the trial court sustained the State’s objection.

When Smith’s counsel asked Proctor whether super intensive supervision parole is the

most intensive type of parole available, the trial court sustained the State’s objection.

Smith’s counsel then took Proctor on voir dire to make a bill of exception. During

the voir dire examination, Proctor testified that Smith had been approved for super

intensive supervision parole, which would require Smith to submit to additional sex

offender treatment, monitoring, and substance abuse treatment, as well as register as a sex

offender. According to Proctor, the parole panel could modify or remove conditions of

Smith’s supervision. Proctor explained that Smith was scheduled to be under supervision

until 2032. After Smith’s counsel concluded the bill, the trial court questioned counsel

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regarding the relevance of the proposed questions to whether Smith suffers from a

present behavioral abnormality.

The trial court concluded as follows:

THE COURT: Counsel, either he has the acquired or congenital condition
today or he doesn’t. If he has it today, it’s an acquired or congenital
condition that makes him likely to engage in future . . . predatory acts of
sexual violence. And that’s a condition that exists right now. And what
treatment he gets tomorrow or on parole is not relevant to his condition
today. Or if it is, kindly explain how.
...

And it looks to me as though the Legislature, in crafting Chapter 841, did it
with very precise terminology that says it’s his condition today that matters,
not what treatment’s going to happen in the future.

State’s witness Dr. Michael Arambula, a forensic psychiatrist, testified that using

the DSM-IV, his diagnoses of Smith are “paraphilia, not otherwise specified, with

sadistic features and antisocial personality disorder[.]” According to Arambula, those

two diagnoses

are the largest risk factors for recidivism in the literature that have existed
for years and years. When you put those two together, you have somebody
. . . who has sexual deviance. In other words, they are not thinking right
when it comes to sex. And then they have a disregard for the laws of the
community and disregard for others. So when you put those two together,
it’s trouble.

According to Arambula, the severity of Smith’s sexual deviancy and Smith’s risk factors

are “what rises [sic] him to the level of behavioral abnormality.” Arambula explained

that “sexual deviance is a condition of chronicity, so [Smith] will have it the rest of his

life.” Arambula testified that “[e]ven when [Smith] was on supervision, he didn’t

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behave. So the structure of prison is a good thing.” Arambula opined that Smith has a

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

violence, and he explained that his determination of Smith’s behavioral abnormality is

based on the past.

When Smith’s counsel asked Arambula whether his risk assessment included

“looking into future dangerousness[,]” counsel for the State objected on relevance

grounds. Smith’s counsel rephrased his question and asked Arambula whether he could

predict the future, to which Arambula responded, “No.” Upon being asked by Smith’s

counsel if he understood that Smith would be under treatment upon his release, Arambula

testified, “I can only speculate.” Smith’s counsel asked, “if Mr. Smith were to be under

treatment, that would lower his risk in your opinion[,]” and the trial court sustained the

State’s objection that the answer would constitute speculation. When Smith’s counsel

rephrased the question, Arambula testified that treatment would lower Smith’s risk.

At the conclusion of Arambula’s testimony, Smith’s counsel made a bill of

exception outside the presence of the jury. Arambula explained during voir dire

examination that he assumed that Smith will be under supervision upon his release.

Arambula stated that treatment is discussed in the records he reviewed, but he does not

know how it will be applied to Smith individually. Arambula testified, “I was just trying

to evaluate whether he had a behavioral abnormality or not, and that was it.” Arambula

also explained that he would be willing to review Smith’s deposition and other records

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“to see what kind of impact treatment might have which could affect my opinion. But . . .

it would just be speculation.” During argument on the bill of exception, the following

colloquy occurred:

[Smith’s counsel]: . . . I would just say that I think Dr. Arambula’s
testimony suggested that future treatment, future supervision are issues that
affect his opinion and that the fact finders in this case are entitled to at least
entertain it and give it their own weight.
THE COURT: Response?
[State’s counsel]: Your Honor, I still believe at this time it’s speculation.
They’re looking at what may happen in the future, and the doctor’s not able
to testify on what may happen and basing that on the behavioral
abnormality as it exists today. . . .

THE COURT: But, . . . Chapter 841 where it says in 841.002(b) defining
behavioral abnormality as a congenital, which I believe means that it came
with birth, or acquired, which is in the past tense, condition. And either
your client has that condition today or not. The testimony of Dr. Arambula,
as well as Dr. Proctor, is that in his opinion he’s got that condition today.
Now, tomorrow is unrelated to it unless your expert says that
tomorrow he doesn’t have that condition. And your expert may say that.
But certainly, once he’s released from prison cannot impact, as I see it, on
whether or not today and tomorrow or during this trial your client has a
congenital or acquired condition. I think that’s kind of the way we looked
at it earlier – at least the way I looked at it. Where do I err?
[Smith’s counsel]: . . . I believe that the definition goes on to say that he
must be likely . . . to engage in a predatory act of sexual violence.
THE COURT: But that’s because of the condition today saying that he’s
likely to engage . . . in a predatory act of sexual violence. Now, of course,
he’s been in prison. We can’t really know his current circumstance. That’s
why we rely on experts to tell us if he has this congenital or acquired
condition that makes him a menace to the health and safety of another
person and likely to engage in a predatory act of sexual violence. Now, the
Supreme Court, I believe, has said, and the Court of Appeals has said, that
this is not three different bites. This is one condition. And having said that,
it would appear to me, at least, if one is to rely on what the Appellate
Courts say, that the condition your client has according to the experts that
have testified . . . that he has that congenital or acquired condition that

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makes him likely to do these things in the future. And that’s as close as we
can come to predicting the future and whether he’s going to be treated on
outpatient or in-patient circumstances after he’s released from prison or
whether he’s committed by the Court after a decision by the jury in this
case . . . as I see it is simply unrelated and irrelevant to whether or not he’s
got the condition today. And explain to me where I err.
[Smith’s counsel]: Well, Your Honor, if I can point out one more thing.
Going back to Dr. Proctor’s earlier testimony, he runs these actuarial tests,
the Static-99R specifically in this case, which specifically looks at future
risk of reoffending and even assigns statistical probabilities for people with
the same score as Mr. Smith. So I think that it’s part of the picture the fact
finders should look at is future risk to reoffend. Is he likely to engage in
these acts again when he’s . . . released from prison?
THE COURT: Then we’ve got to pick the statute apart and submit
questions on each element here, which I know y’all have always felt ought
to be done because that gives you more chances to get one “no” answer and
vitiate the trial. The problem, of course, is that’s not what the statute says.
That’s not what the Court of Appeals says, and that’s not what the Supreme
Court of Texas says. And I kind of thought we ought to go with those
Appellate Courts rather than our own independent feelings. You know, we
can reinvent the wheel if we choose to, but a round wheel is probably better
than a square or hexagonal wheel. So, it appears to me that we better go
with what the law seems to be. And it seems to me that it’s a whole bundle
of things.
Now, you talk about the instruments used by the mental health
experts that testify, but those are just instruments that they use in forming
their opinion. They are not the ultimate basis for the opinion. At least the
testimony I remember hearing is that their opinion is based on a whole
bundle of things. In part, the hearsay evidence that is presented in the pen
packets, the answers of your client, the personal evaluation of your client
by the experts. And then they form an opinion. And we’ve had two
witnesses proferred as experts that say in their opinion he has this
behavioral abnormality. And that’s as of today. And I believe both of them
pretty well said they just can’t predict the future about what’s going to
happen because it’s not unlike the admonition given to a criminal jury that
they may consider there’s such a thing as good time and such a thing as
parole, but because those decisions are made by third parties over which the
Court has no control, they cannot take that into consideration when they
assess punishment. That’s different, of course, because it’s a criminal trial,
but it is similar to the circumstances here in my view and the reason why

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 we don’t get into the question of treatment either by the parole board,
treatment by some third party or treatment . . . of someone that is
committed by a treatment provider. It’s just not something we can address
today because we don’t know what’s going to happen. And, again, it is
difficult to predict things, especially if they deal with the future. So, . . . I
know you feel committed to your position . . ., and I commend you for that.
. . . But I believe I’m correct. I believe that’s what all the case law has said.
And I believe that is where we are in the trial of Chapter 841 cases.
So, I most respectfully note your exception to what you believe is an
obviously wrong ruling on the Court’s part.

Smith also called his own expert witness, clinical and forensic psychologist Dr.

Walter Quijano, to testify concerning whether Smith has a behavioral abnormality as

defined by the statute. Quijano testified that he diagnosed Smith with “sexual assault of

adult, sexual assault of a child, substance abuse, . . . and antisocial personality[,]” but he

opined that Smith does not have a behavioral abnormality “at this time.” Quijano

testified, “I did not see any defect in the emotional capacity as the statute requires us to

answer. I did not see any defect in the volitional capacity as the statute requires us to

answer.”

When asked why he first determines whether a behavioral abnormality exists and

then determines whether an individual is likely to reoffend, Quijano testified, “If the

judgment is he has no behavioral abnormality, then the question of likelihood of

reoffending only becomes a treatment issue and management issue. So, once the

judgment is made that he has no behavioral abnormality, the second question is how

should he be managed, civil commitment, intense supervision.” Counsel for the State

objected to the testimony on grounds of relevance because “[w]e’re talking about his risk

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today.” The Court responded, “The only issue is whether or not your client has a

behavioral abnormality as defined in Chapter 841. And as we’ve discussed twice, that is

a condition either existing or not as of today. What happens tomorrow is not relevant.”

When Quijano subsequently testified with respect to Smith’s positive factors that Smith

“has a plan to leave TDC[,]” counsel for the State objected.

After Quijano’s testimony concluded, Smith’s counsel took Quijano on voir dire.

During voir dire, Quijano stated that if a person were on parole, the more structured

conditions would lessen the person’s probability of reoffending. Quijano indicated that

Smith “was accepted to intensive supervision parole[,] which is a lot more structured than

the ordinary parole.” According to Quijano, Smith would be subject to additional sex

offender treatment, GPS monitoring, travel restrictions, would not be permitted to be with

children unsupervised, and would have to comply with “a host of other conditions.”

Quijano opined that Smith “will be discharged under a parole plan that is very, very

structured, and that parole plan has a very good low recidivism rate.” In addition,

Quijano stated that super intensive supervision parole is superior to civil commitment

because “the treatment happens in the real world, not in a halfway house setting.”

Relevant evidence is any evidence that tends to make a fact of consequence more

or less probable than it would be without the evidence. Tex. R. Evid. 401. Pursuant to

the SVP statute, the issue to be determined by the jury was whether Smith is a repeat

sexually violent offender and suffers from a behavioral abnormality that makes him likely

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to commit a predatory act of sexual violence. Tex. Health & Safety Code Ann. §

841.003(a) (West 2010). The relevant inquiry is whether Smith’s behavioral abnormality

makes him likely to commit a predatory act of sexual violence. See id. Therefore, the

level of supervision to which Smith would be subject if placed on super intensive

supervision parole is not relevant to the issue before the jury, and the trial court did not

abuse its discretion by refusing to admit evidence concerning the conditions of super

intensive supervision parole. See generally Auld, 34 S.W.3d at 906; Salazar, 2008 WL

4998273, at *2.

Even if the trial court had erred by excluding the evidence, Smith must

demonstrate that the trial court’s decision probably caused the rendition of an improper

judgment. See Tex. R. App. P. 44.1(a). The jury heard evidence concerning Smith’s

prior offenses, his diagnoses of sexual sadism, sexual deviance, and antisocial personality

disorder, and his scores on actuarials, which indicated Smith’s risk of reoffending was

moderate to high. The jury also heard evidence that Smith had been previously unable to

comply with the terms of supervised release. In light of the totality of the evidence

before the jury, we conclude that Smith has not demonstrated that the trial court’s

decision not to admit evidence concerning the terms of his super intensive supervision

parole probably caused the rendition of an improper judgment. See id. We overrule

issue two.

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 SUPPLEMENTAL ISSUE

In a supplemental issue, Smith argues that the Texas Supreme Court’s decision in

In re Commitment of Bohannan, No. 10-0605, ___ S.W.3d ___, 2012 WL 3800317 (Tex.

Aug. 31, 2012) (not yet released for publication) interpreted portions of the SVP statute

in such a way as to violate due process and render the statute facially unconstitutional.

He contends that Bohannan dispenses with the “mental condition” and “serious difficulty

controlling behavior” language found in sections 841.002(2) and 841.003(a)(2) and

permits civil commitment based solely on a predisposition to violence.

In Bohannan, the Texas Supreme Court considered the qualifications that an

expert must have to testify to whether a person is a sexually violent predator and subject

to civil commitment. Bohannan, 2012 WL 3800317, at *1. In doing so, the Court

explained that a behavioral abnormality is a condition that predisposes sexually violent

conduct and that “predisposes” merely qualifies and describes “condition.” Id. at *4.

Thus, according to the Court, a “behavioral abnormality” might more clearly be defined

as “a congenital or acquired predisposition, due to one’s emotional or volitional capacity,

to commit a sexually violent offense, to the extent that the person becomes a menace to

the health and safety of another person.” Id.

The Court also addressed the terms “likelihood” and “predisposition” as follows:

A person is a sexually violent predator . . . if the person . . . suffers from [a
congenital or acquired condition

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 {Qualifier A} 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]

{Qualifier B} that makes the person likely to engage in a predatory act of
sexual violence.

Id. at *5. According to the Court, Qualifier B merely explains or restates Qualifier A and

is not a separate element of a “behavioral abnormality.” Id. The Court explained that the

import of both “likelihood” and “predisposition” is “increased risk;” i.e., “increased

likelihood of misconduct indicates a predisposition, and a predisposition threatens

increased likelihood.” Id. The Court concluded that “whether a person ‘suffers from a

behavioral abnormality that makes the person likely to engage in a predatory act of sexual

violence’ is a single, unified issue.” Id.

Additionally, the Court noted that the SVP statute is intended to “reduce the risk

of those who are behaviorally predisposed to sexually violent conduct.” Id. at *7.

According to the Court, the only fact issue in an SVP proceeding is whether a person has

the behavioral abnormality required for an SVP. Id. Thus, the “principal issue in a

commitment proceeding is not a person’s mental health but whether he is predisposed to

sexually violent conduct.” Id.

As we recently explained, “Bohannan did not eliminate any proof required by the

statute for a sexually-violent-predator finding, nor did the Supreme Court change the

statute or render it unconstitutional.” In re Commitment of Anderson, ____ S.W.3d ____,

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No. 09-11-00613-CV, 2013 WL 257162, at *7 (Tex. App.—Beaumont Jan. 24, 2013, no

pet. h.) (not yet released for publication). Both this Court and the Third Court of Appeals

“have addressed arguments similar to those made by appellant, and noted that serious

difficulty controlling behavior is embedded in the definition of ‘behavioral

abnormality.’” Id. (citing In re Commitment of Almaguer, 117 S.W.3d 500, 502-507

(Tex. App.—Beaumont 2003, pet. denied) and In re Commitment of Browning, 113

S.W.3d 851, 862-63 (Tex. App.—Austin 2003, pet. denied)). In Anderson, we explained

that “[a]n affirmative answer to the question of whether a person suffers from a

behavioral abnormality that makes the person likely to engage in a predatory act of sexual

violence necessarily entails a determination that he has serious difficulty controlling

behavior.” Id. For the same reasons set forth in Anderson, we conclude that Bohannan

neither eliminated a statutory requirement nor altered the proof required under the statute

to find that a person is a sexually violent predator. See id. at **7-8. Accordingly, we

overrule Smith’s issue and affirm the trial court’s judgment and order of civil

commitment.

AFFIRMED.

___________________________
STEVE McKEITHEN
Chief Justice

Submitted on October 23, 2012
Opinion Delivered February 7, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.

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