Opinion issued October 10, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00297-CR
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PATRICK MICHAELS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Court Cause No. 13-02-01755-CR
MEMORANDUM OPINION
In 2002, a court issued a civil commitment order after it found Patrick
Michaels to be a sexually violent predator. Trial courts reviewed and modified the
order each biennium. In 2013, a jury found Michaels guilty of violating the terms
of the applicable order. The trial court assessed Michaels’ punishment at twenty
years’ confinement. On appeal, Michaels contends that the trial court erred in
admitting evidence of: 1) supervision requirements for his treatment program;
2) his absence without leave from the U.S. Air Force; and 3) orders modifying the
terms of his civil commitment. He further contends that the evidence is
insufficient to support the verdict because the State failed to establish proper
venue. Finding no reversible error, we affirm.
Background
In April 2002, a trial court adjudicated Michaels to be a sexually violent
predator, and it ordered him civilly committed under Chapter 841 of the Texas
Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 841.081 (West
2010). Pursuant to that order, the trial court reviewed Michaels’ status biennially
to determine whether it should modify or terminate his commitment. The order
required that Michaels attend and complete a sexually violent predator treatment
program. In July 2012, the supervisors at the treatment program discharged
Michaels, because he did not comply with a number of the program’s
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requirements. The State subsequently indicted Michaels for violating the civil
commitment order.
Discussion
I. Admission of evidence.
We first examine Michaels’ challenges to the trial court’s evidentiary
rulings.
Standard of review
We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A
trial court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Taylor v. State,
268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its
discretion if some evidence supports its decision. See Osbourn v. State, 92 S.W.3d
531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it
was correct on any theory of law applicable to the case. See De La Paz v. State,
279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Supervision requirements
The trial court admitted, as business records, documents outlining the
requirements of Michaels’ treatment program. Billy Barnes, Michaels’ treatment
supervisor, testified that the treatment facility kept records reflecting that Michaels
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had been instructed about, and was aware of, the requirements of his treatment
program. Barnes explained the rules to Michaels, and Michaels signed an
acknowledgement that he was aware of them. Barnes conceded that he was aware
that the supervision requirements could be a subject of litigation and that the
documents might be used in a prosecution.
Michaels objects that these records were created in anticipation of litigation,
thus arguing that they are hearsay not admissible under the business records
exception. See TEX. R. EVID. 803(6). He relies on Palmer v. Hoffman, in which
the United States Supreme Court held that an investigative report about a train
accident by the company that operated the train was prepared in anticipation of
litigation and therefore not a business record. Palmer v. Hoffman, 318 U.S. 109,
115, 63 S. Ct. 477, 481 (1943). He also cites Dixon v. State, in which the San
Antonio Court of Appeals held that a document listing missing equipment prepared
pursuant to the investigation of lost property was not a business record for
purposes of Rule 803(6). Dixon v. State, 940 S.W.2d 192, 195 (Tex. App.—San
Antonio 1996, no pet.).
Palmer and Dixon are distinguishable. In contrast to the records in those
cases, the records prepared in this case were created before Michaels violated the
conditions of his civil commitment order. Thus, the records were not the result of
an investigation of an incident or made in anticipation of litigation. Rather, the
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documents were created and kept to advise both Michaels and his supervisor of the
requirements of Michaels’ treatment program required by the civil commitment
order. Accordingly, the trial court was within its discretion to admit the records.
See TEX. R. EVID. 803(6).
Absenteeism
Michaels next contends that the trial court erred in allowing testimony that
he went absent without leave from the United States Air Force, because the State
did not notify him of its intent to proffer the evidence, as required by Rule 404(b),
and the evidence is unfairly prejudicial under Rule 403. See TEX R. EVID. 403,
404(b).
Michaels is correct that Rule 404(b) provides that a defendant should receive
notice of the State’s intent to seek admission of extraneous bad acts, but the
defendant must request such notice before the State is required to give it. See
Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993); see TEX. R. EVID.
404(b). The record includes no indication that Michaels requested notice of
evidence of extraneous acts that the State planned to introduce; thus, no notice was
required. See Espinosa, 853 S.W.2d at 39.
Moreover, the State did not offer evidence of Michaels’ absenteeism as
character evidence but rather to prove Michaels’ identity. Michaels’ absenteeism
is the event which led to him changing his name from John Curtis Ball to Patrick
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Michaels. This evidence is relevant as to Michaels’ identity; thus, it was
admissible to prove identity and not for conformity of character with prior bad
acts. See TEX R. EVID. 404(b).
Even if evidence is admissible under Rule 404(b), it may be inadmissible
under Rule 403, because its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury,
considerations of undue delay, or needless presentation of cumulative evidence.
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); TEX. R. EVID. 403.
Even assuming that the trial court should have limited the evidence to the
name change, and disallowed any discussion that it was precipitated by a military
absence without leave, Texas Rule of Appellate Procedure 44.2(b) states that
non-constitutional error “that does not affect substantial rights must be
disregarded.” TEX. R. APP. P. 44.2(b). The erroneous admission of evidence does
not affect substantial rights “if the appellate court, after examining the record as a
whole, has fair assurance that the error did not influence the jury, or had but a
slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002);
Martinez v. State, No. 01-10-00622-CR, 2011 WL 5026457, at *3 (Tex. App.—
Houston Oct. 20, 2011, pet. ref’d) (mem. op., not designated for publication). In
determining the extent to which the error influenced the jury, we consider the
entire record, the nature of the evidence supporting the verdict, the character of the
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alleged error and its connection with other evidence in the case, and whether the
State emphasized the error. Motilla, 78 S.W.3d at 355-56.
The State did not emphasize Michaels’ absenteeism and did not draw any
connection between this piece of evidence and any other evidence presented. The
State mentioned Michaels’ absenteeism only once in its closing argument. There is
nothing from the record to suggest that the admission of the evidence of Michaels’
absenteeism had any deleterious effect upon the jury. We hold that any error in the
admission of this evidence was harmless.
Prior court orders
Michaels contends that the trial court erred in admitting the orders
modifying the terms of his civil commitment, because he lacked a required notice
before the hearings for those modifications. See TEX. HEALTH & SAFETY CODE
ANN. § 841.082(e) (West 2010) (providing a notice and a hearing to each affected
party when civil commitment orders are modified). He argues that, under Article
38.23(a) of the Code of Criminal Procedure, no evidence obtained in violation of
any state or federal law can be admitted against the accused, and without proper
notice in the earlier proceedings, the orders constitute illegally obtained evidence.
TEX. CODE CRIM. PROC. ANN. Art. 38.23(a) (West 2005). If evidence is obtained
legally, however, then its admission into evidence does not violate Article
38.23(a). Chavez v. State, 9 S.W.3d 817, 820 (Tex. Crim. App. 2000); Johnson v.
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State, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994). But Michaels makes no
showing that the State obtained the modification orders in violation of any state or
federal law. Michaels complains about the procedure in prior proceedings, not
about the manner in which the State obtained this evidence. Accordingly, the trial
court was within its discretion to admit the orders modifying the terms of
Michaels’ civil commitment.
II. Legal sufficiency.
Second, Michaels challenges the trial court’s denial of his motion for a
directed verdict, arguing that his conviction is legally insufficient because the State
failed to produce evidence about the location of the offense.
Standard of review
A challenge to the trial court’s ruling on a motion for a directed verdict is a
challenge to the sufficiency of the evidence to support the conviction. Madden v.
State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). We review both legal and
factual sufficiency challenges under the same standard of review. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under this standard, evidence is
insufficient to support a conviction if, considering all the record evidence in the
light most favorable to the verdict, no rational fact-finder could have found each
essential element of the charged offense proven beyond a reasonable doubt. See
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Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v.
State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
Analysis
Article 13.315 of the Code of Criminal Procedure states, “[a]n offense under
Section 841.085, Health and Safety Code, may be prosecuted in the county in
which any element of the offense occurs or in Montgomery County.” TEX. CODE
CRIM. PROC. ANN. Art. 13.315 (West Supp. 2012). Section 841.085 governs the
penalty of sexually violent predators in violation of a civil commitment
requirement. See TEX. HEALTH & SAFETY CODE ANN. § 841.085 (West 2010).
Thus, Montgomery County is a statutorily appropriate venue under § 841.085.
Michaels contends that the witnesses failed to affirm that the offenses occurred in
Montgomery County. However, because Michaels was indicted and tried under
§ 841.085 of the Health and Safety Code, the State did not need to prove that an
element of the offense occurred in Montgomery County as Montgomery County is
a statutorily appropriate venue without regard to the location of the offense.
Accordingly, we hold that the trial court did not err in denying Michaels’ motion
for a directed verdict.
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Conclusion
We conclude that none of Michaels’ evidentiary challenges warrant
appellate relief. We further conclude that the trial court did not err in denying a
directed verdict based on a challenge to venue in Montgomery County. We
therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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