in Re Commitment of Michael Loeviticus Terry

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________

NO. 09-15-00500-CV
____________________

IN RE COMMITMENT OF MICHAEL LOEVITICUS TERRY

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 15-05-04647-CV

MEMORANDUM OPINION

The State of Texas filed a petition to commit Michael Loeviticus Terry

(Terry or Appellant) as a sexually violent predator. See Tex. Health & Safety Code

Ann. §§ 841.001-.151 (West 2010 & Supp. 2016) (SVP statute).1 A jury found that

Terry is a sexually violent predator. Terry filed a motion for judgment

notwithstanding the verdict and a motion for new trial. The trial court denied both

motions. The trial court rendered a final judgment and an order of civil

commitment, and Terry timely filed a notice of appeal. In three issues, Terry

1
Throughout this opinion, we cite to the current version of the statute unless
a previous version of the statute applies and the subsequent amendments would
materially affect our analysis.

1
challenges the constitutionality of the SVP statute as amended, the admission of

certain evidence at trial, and the sufficiency of the evidence. We affirm the trial

court’s judgment and order of civil commitment.

EVIDENCE AT TRIAL

Admission of Exhibits

Prior to the trial, defense counsel informed the trial court that Terry did not

wish to be present during the voir dire or during any other part of the trial. The trial

court ruled that Terry would be required to testify because he was under a

subpoena, but otherwise the trial court granted Terry’s request. Terry’s attorney

was present during and participated in all stages of the trial.

At the beginning of the trial, the State offered Terry’s pen packet into

evidence as Exhibit 1. The defense counsel objected to the exhibit stating that

Terry’s photograph in the pen packet was unduly prejudicial. The trial court

overruled the objection and admitted the exhibit. Terry’s pen packet includes

certified copies of the indictments and judgments for his 2007 convictions on two

counts of indecency with a child by sexual contact for his offenses against M.G.

and K.P., including his punishment at nine years and six months for each offense.2

2
We identify the victims by using initials. See Tex. Const. art. I, § 30(a)(1)
(granting crime victims the “right to be treated with fairness and with respect for
the victim’s dignity and privacy throughout the criminal justice process”).

2
 The State also announced to the trial court that it had additional exhibits that

had been proven up through deposition and that the State intended to introduce

during Terry’s testimony. When the State offered Exhibit 3, the defense objected to

“the photos and writings[]” on the basis of the best evidence rule and hearsay. The

court overruled the objections. The defense then also objected under Rule 403,

arguing that the exhibits were “numerous,” “gruesome,” “inflammatory[,]”

contained “explicit detail,” and would “unfairly prejudice the jury.” The defense

further argued that “by the sheer nature of the amount of writings and photographs

they are cumulative[]” and would sidetrack or confuse the jury. The State

responded that the exhibits

. . . are very relevant. They are evidence of not only his sexual
deviance, but they are evidence of his behavior abnormality, they are
evidence of his sexual preoccupation, they are evidence that the expert
relied upon in forming his opinion. They are not cumulative, because
out of the hundreds of pictures and writings that the State had at its
disposal to use during this case, [the State] only selected a very small
quantity. . . . about 10[.]”

The court found that the probative value outweighed any prejudicial effect and

overruled the defense objections as to Exhibit 3. The State then offered Exhibits 4

through 10, the defense “reurged” its objections and the court overruled and

admitted Exhibits 4 through 10.

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 The State described Exhibit 3 as “a picture that Mr. Terry drew [that]

contains writing on it where he actually discusses [] sex with two of the victims[.]”

The State argued that in Terry’s deposition, Terry characterized Exhibit 4 as “a

pornographic writing.” The State described Exhibits 5, 6, and 7 as writings by

Terry concerning his victims. The State described Exhibit 8 as “a picture cutout

with one of the victims’ face . . . glued on the picture with a writing about both of

the victims[.]” Exhibit 9 was described as “another writing that details some

sexual[ly] deviant fantasies of strangulation sex that the doctor used in forming his

underlying opinion[.]” And the State described Exhibit 10 as “a graphic picture

that [Terry] drew concerning one of the victims[.]”

Requests for Admissions

The State read Terry’s responses to requests for admissions into the record.

Terry admitted that he had two convictions for indecency with a child by sexual

contact, admitted his punishment of nine years and six months in prison for those

convictions, and admitted previous convictions for driving under the influence,

public intoxication and possession of stolen property. Terry also admitted to

having used methamphetamines, PCP, and marijuana, that he had “a problem with

alcohol[,]” that during periods in his life, he was “too addicted to work[,]” and that

he was under the influence of alcohol when he was accused of sexual offending.

4
Terry also admitted that the first time he had sex was with his adopted sister and

that he continues to become sexually aroused by thoughts of her. Terry admitted

that he once lost his apartment due to using meth, after which he stored his

belongings at his employer’s warehouse, including pornographic pictures and

writings he had made. He admitted that the writings on the pictures were “of a

sexual nature” with respect to his victims and as to other girls he knew, and also

that he wrote pornographic writings of sexual fantasies concerning his victims.

Testimony of Terry

The State called Terry as its first witness. At the time of trial, Terry was

sixty-four years old, and at that time Terry had served eight-and-a-half years of his

nine-and-a-half year sentence for his convictions against M.G. and K.P. Terry

agreed that, when he was about eleven years old, he and his sister were placed in

foster care and that he was “molested by the foster family[.]”

Terry testified that, after he graduated from high school, he entered the

Marine Corps, but while in the Marines he was arrested for PCP and alcohol, and

he was subsequently “undesirably discharged” from the Marine Corps. Terry

explained that, when he was in the Marine Corps, he would do “whatever [drugs]

showed up in the barracks[,]” including LSD, opium, marijuana, and alcohol.

According to Terry, he has been arrested for possession of stolen property,

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contributing to the delinquency of a minor, DWI, and public intoxication. Terry

agreed that he would stop using but then relapse, and that alcohol was “the trickiest

substance” for him because he could not predict how he would behave when

drinking. According to Terry, “[m]eth took all the money[,]” caused his personality

to change, caused him to do things he would not normally do, caused him to lose

his apartment, and caused him to become unemployed. Terry also testified that he

believed he was a sex addict and that he planned to go to Sex Addicts Anonymous.

According to Terry, prior to his arrest for indecency with a child by sexual

contact, he had started using meth again and he lost his apartment due to his meth

use. At one point, he lived with his son, who was married and had three children,

including M.G. and K.P. Terry agreed that, for a time, he also stayed with a couple

who operated a day care in their house, and the couple discovered a box of

pornographic material of “dirty pictures and writings” Terry had made and that

were in the van Terry drove, and the couple turned the materials over to the police.

Terry also agreed that the police thought he had done some of the things contained

in the materials and arrested him on charges of indecency with a child by sexual

contact for offenses against M.G. and K.P.

Terry described M.G. and K.P. as his son’s stepchildren. According to Terry,

M.G. and K.P. played a “game” with him one time. He agreed that K.P. climbed

6
onto his lap and wiggled around, and M.G. grabbed his hand and placed it between

her legs. According to Terry, when the girls played this game with him, the girls’

parents were not around and had left Terry alone to babysit the girls. Terry agreed

he became aroused and that he continued to think and fantasize about the girls

touching him. Terry also agreed he fantasized about other children after this

incident. Terry did not remember touching the girls, but he agreed it was possible

that it happened because he was drunk that night and he may have blacked out.

Terry also agreed that M.G. was “aggressive[]” and “retarded[]” and that if he had

blacked out in the same room with her that night, “she would have participated and

[he] would not have had sense enough as an adult to get up and walk away.” Terry

agreed that the police learned that it was possible he had sexually offended against

M.G. and K.P. because he had written pornographic fantasies and made explicit

drawings about the girls.

The State showed Exhibit 5 to the jury and asked Terry to read it. The

defense requested and obtained a running Rule 403 objection to the State’s

exhibits. The exhibit was in Terry’s handwriting and described in detail “[o]ver

200 times in one year raping [M.G.] in her sleep[]” at Terry’s son’s house, but

Terry testified that it was fantasy and never happened. Terry also agreed that the

writing in Exhibit 6, which described sexual interest in “really pretty children[,]”

7
looked like his handwriting but that it was fantasy. Terry disagreed that fantasy

was a desire and explained “Fantasy is a thought. A daydream.” However, Terry

also agreed that, in his deposition prior to trial, he had agreed that the writing in

Exhibit 5 was something he had thought about doing to M.G. Terry agreed that

State’s Exhibit 7 looked like his handwriting and that it was another fantasy about

M.G. in which he “graduated from just fantasizing about her to actually touching

her[.]” Terry described State’s Exhibit 8 as a drawing of M.G. and he stated that it

looked “nasty” to him. Terry testified that he was high on methamphetamine when

he made the drawing, that he cut out pictures and glued them onto bodies, and that

he “wrote disgusting things.”

Terry agreed that State’s Exhibit 3 was one of his writings, but he did not

recall who the girl was in the picture, and he agreed it was just a fantasy. Terry

agreed that he had had fantasies about K.P. and made drawings of her, and he

recognized his handwriting in State’s Exhibit 10, a sexual writing concerning K.P.

that described her as “only five years old.” According to Terry, he found K.P. sexy

but Exhibit 10 was a fantasy that did not happen. Terry testified that M.G. said

“suggestive things[]” to him on more than one occasion, and when she did so, she

was “aggressive[,]” would force herself onto him, and would touch him. He denied

8
having a physical reaction when M.G. said these things, and according to Terry he

would “get up and move away[]” or leave in his truck when it occurred.

Terry agreed that, in his deposition, he had described writing sexual

fantasies about fourth-graders in bikinis. When asked whether he had fantasized

having sex with dead bodies, in reference to the writing in State’s Exhibit 4, Terry

responded “[i]t looks like it.” And when the State questioned Terry about the

writing in Exhibit 9, Terry agreed that it “looks like” he fantasized about

kidnapping young girls, strangling them, and having sex with their dead bodies

while their mothers watched. But, Terry stated the writing was fantasy. Terry

agreed that “there were many, many more documents” than what the State

introduced at trial. Terry testified that he was attracted to female adults but also

“[s]ometimes[]” to female children. He agreed he fantasized about JonBenet

Ramsey and that when he grew bored with “standard Penthouse pornography[]” his

taste grew towards forbidden fantasies and he created his own materials.

Terry agreed that he was required to take sex offender education as a

condition of parole. According to Terry, he had been caught in prison having a

picture of a woman in her underwear, but Terry explained that he did not know he

had the picture in his possession and he had forgotten about it. Terry testified that

he had completed the Sex Offender Education Program and, when asked what he

9
learned, he replied “Don’t be a sex offender.” Terry agreed that he is a sex offender

and that he needs sex offender treatment but Terry does not believe he is at risk for

reoffending. According to Terry, upon release from prison, he intends to go back to

Alcoholics Anonymous. Terry testified that he had not heard from family or

anyone while in prison, he was on a waiting list for housing, and when asked how

he planned on avoiding returning to prison, he stated “[a]void pornography, drugs,

alcohol, try to just be a good sign painter. . . . I’m a good sign painter.” Terry

explained that he no longer writes pornographic material.

On examination from his own attorney, Terry agreed that he had ruined his

victims’ lives and that he “earned” his punishment and deserved his imprisonment.

He denied that he currently has sexual fantasies involving children or finds abusing

children to be sexually exciting. When asked how he felt about his sexual offenses,

he replied “[g]uilty, ashamed, embarrassed.” Terry testified that he had been sober

since he has been in prison, even though drugs were available in prison, and he did

not want the consequences of drinking. Terry explained he had four “minor

cases[]” while he was in prison, including failing to put his name in some

paperback books and skipping a class. He denied having been in trouble for

making sexual advances toward female prison staff, and he explained that his sex

drive had “dwindled, dried up[]” while in prison.

10
Testimony of Dr. David Self

David Self, M.D. (Self or Dr. Self), a physician and board-certified

psychiatrist, testified as an expert for the State. Self explained that he had been

practicing forensic psychiatry since 1995, that he has been evaluating individuals

for a behavior abnormality since 2009, that he relied on the principles of forensic

psychiatry when evaluating Terry, and that his testimony was within the scope of

forensic psychiatry. Dr. Self testified that he was asked to answer whether Terry

had a behavioral abnormality as defined by Chapter 841 of the Texas Health and

Safety Code. Self then explained that a behavioral abnormality is a condition that

affects someone’s volition or ability to control their emotions and predisposes them

to be a risk of harm to others via sexually violent acts.

Dr. Self described the methodology he uses in conducting a behavioral

abnormality assessment, which includes a review of all available records and

conducting a face-to-face psychiatric screening. He agreed that the methodology he

uses is the methodology used by experts performing this type of evaluation in

Texas. After reviewing records and interviewing Terry, Dr. Self formed an opinion

that Terry has a behavioral abnormality that predisposes him to engage in

predatory acts of sexual violence.

11
 Dr. Self met with Terry for almost two hours, and he described Terry’s

demeanor during the meeting as “easy-going. . . . open, cordial and forthcoming.”

Self explained that he reviewed police reports, prison records, an interview by the

Sex Offender Treatment Program, and a psychological evaluation done by a

psychologist. Although Dr. Self testified that he reviewed the Multidisciplinary

Team (MDT) report, Self also testified that Terry had refused to see the

psychologist who evaluated Terry. After meeting with Terry, Dr. Self also received

records from the District Attorney’s office that prosecuted Terry and a copy of

Terry’s deposition.

Dr. Self explained that he relied in part on Terry’s sexual convictions in

forming his opinion that Terry suffers from a behavior abnormality and that the

facts and details of his convictions concerning victim characteristics, the nature of

the offenses, and the context in which they occur are important “clues.” Self also

found the compendium of Terry’s pornographic drawings and writings to be “very

helpful.” Dr. Self testified that the records showed that Terry was fifty-five years

old when he was indicted for offenses against M.G. and K.P. Self explained that at

the time of the sexual offenses, M.G. was eleven years old, K.P. was six years old,

and the two girls were the daughters of Terry’s son’s “common-law wife or

paramour.” According to Dr. Self, the records described M.G. as “mentally

12
retarded[]” and as having cerebral palsy. Dr. Self explained that, at the time of the

offenses, Terry’s employer let Terry use a van with the understanding that, if Terry

“got drunk, he would lose the van.” Dr. Self explained that Terry did get

. . . drunk and stoned on meth . . . and lost the van. And when
they took [the van] back, they discovered . . . two shoeboxes full of
these pornographic writings and graphics.

....

Because they recognized [that] some of it was about children
being molested in violent ways, they called the police.

After examining the materials, the police were able to identify M.G. and K.P. as

the potential victims, and M.G. and K.P. were interviewed at a child advocacy

center and by a sexual abuse nurse examiner (SANE). According to Dr. Self, the

SANE found “clear evidence of sexual abuse.” Dr. Self further explained that K.P.

had made an outcry to her mother, saying that Terry had threatened to kill her if

she told her father that Terry was touching her. M.G. also made an outcry to her

mother that was “fairly minimal[.]” Self testified that, when he asked Terry about

these events, Terry “was very vague[]” and said he was intoxicated on alcohol and

meth during the offenses. Dr. Self explained that substance abuse “make[s] it a lot

easier to pursue impulsive urges.”

According to Dr. Self, Terry first recognized that he had an attraction to

prepubescent children when the JonBenet Ramsey story was first in the news. Dr.

13
Self testified that he asked Terry about the offenses against M.G. and K.P. and that

Terry told him there had been two or three instances of molestation and that Terry

“attributed the initiation of these things to the children’s behavior[.]” Self also

testified that Terry told him M.G. made sexually suggestive comments to Terry,

although Self found it “abnormal[,]” “unusual[,]” and “incredulous that an 11-year-

old girl is going to be that directly promiscuous and inviting to an old man.” Dr.

Self explained that it is common for pedophiles to excuse their behavior by saying

the child initiated the contact. According to Dr. Self, Terry’s rationalization and

self-justification are relevant to Terry’s mindset today because it means “he’s still

defending that behavior[]” and “he is building a rationalization instead of

confronting the ugly truth.”

When Dr. Self asked Terry about the writings, Terry “wanted to more or less

dismiss them as products of methamphetamine and alcohol[]” and Terry stated that

he had started making the writings before he had even been around M.G. and K.P.

because “he had grown bored with Penthouse and [the] regular kind of

pornography and needed something with more punch.” Dr. Self described this as

“stepping up . . . when one level of offense of any sort, violent or sexual, starts to

lose its thrill, [] there’s an escalation in seriousness.” Dr. Self reviewed the

writings and pictures that referenced M.G. and K.P. and explained that they

14
described “incredibly sadistic and cruel sexual assaults on these little girls.” Dr.

Self explained that some of the pictures Terry drew were of adult female bodies

and some were prepubescent children. According to Dr. Self, there was no

evidence that Terry had actually done the things he wrote about. However, Dr. Self

testified that the records he reviewed reflected that Terry “did more than just

casually touch the girls on one occasion[]” and that both girls had reported “it had

happened several times.” Dr. Self explained that “quite a few[]” writings or

pictures of Terry contributed to his opinion that Terry has a behavior abnormality

and that the writings show Terry’s “taste for the extraordinarily vulnerable

victim[.]” On cross-examination Dr. Self acknowledged that Terry’s writings and

pictures depict “fantasies[,]” but Self explained that a “risk inherent” exists and in

the “stepping-up process[,]” a person moves from fantasy and thinking to “doing

more.” According to Dr. Self, there were many more writings and pictures than

what the State presented to the jury.

Self testified that Terry met the criteria for pedophilic disorder, and this

diagnosis was pertinent to his opinion that Terry has a behavioral abnormality. Self

also agreed that sexual sadism was a “distinct possibility[]” for Terry. Self

explained that pedophilia is a chronic condition that does not go away, but that the

behavior resulting from pedophilic urges has been observed to diminish with age.

15
According to Dr. Self, Terry did not admit to the urges and Terry minimized his

offenses. When Dr. Self asked Terry what harm he had caused M.G. and K.P.,

Terry was not sure how they were harmed and “he kind of minimized it and said

that he’s sure nothing good came of it.” Dr. Self also explained that he found Terry

to have attitudes tolerant of sexual assault based on Terry’s rationalization of his

offenses; Terry blames the incidents on the girls, and Terry’s writings portray

sexual assault as “a happy thing[.]”

According to Dr. Self, Terry’s sexual and nonsexual criminal history

contributes to his risk of reoffending. Dr. Self diagnosed Terry with “personality

disorder not otherwise specified[]” and explained that Terry has antisocial traits but

not antisocial personality disorder. Dr. Self explained that “a personality disorder

that causes you to have friction with other people definitely contributes to

instability[.]” Dr. Self agreed that he had seen no evidence that Terry had a major

mental illness. Self also testified that Terry also has a “very significant history of

substance abuse[,]” including abuse of methamphetamine, alcohol, and marijuana.

Dr. Self diagnosed Terry with methamphetamine and alcohol dependence in

remission in a controlled environment. Addressing the correlation and relevance of

Terry’s drug abuse and dependence on Terry’s behavior abnormality, Dr. Self

explained that

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 . . . drugs like this don’t cause you to have ideas about raping
kids. But if you have ideas about raping kids or any bad ideas that
you’re trying to inhibit and keep a lid on, drugs like this make it easy
to act on those ideas. They disinhibit. They make you more
aggressive, more impulsive and raise the risk through the roof. These
are the two huge risk raisers in all substance abuse.

According to Dr. Self, Terry made “a pretty good adjustment” in prison and the

“most significant thing” that occurred while Terry was in prison is that Terry was

found to possess a “very provocative picture of a woman in a sexual pose[]” near

the end of the time when he was in the Sex Offender Education Program. In Dr.

Self’s opinion, Terry needs sex offender treatment, and he was “inclined to think”

that Terry did not believe he needed such treatment and that Terry “wants to avoid

that environment.” Dr. Self testified that he believes Terry acknowledges his

deviance but that he does not understand the risk he poses. Self also agreed that

there is no evidence Terry has used drugs or alcohol in prison or that Terry has

continued making writings or pictures in prison.

Addressing the risk factor of general instability, Dr. Self observed that Terry

has “a fairly erratic history of employment[,]” he has been homeless at various

times, and he has no social support network. Dr. Self agreed that the psychologist

who evaluated Terry wrote that Terry appeared to have the intellectual ability to

maintain steady employment, which the psychologist regarded as a mitigating

factor. Self told the jury that

17
 . . . [p]eople that have [substance abuse] diagnoses and have no
social support network and have other sources of psychosocial stress,
the risk of relapse is even higher and the risk of relapse increases the
risk of sexual recidivism. So it’s a chain reaction kind of a deal.

Dr. Self also testified that Terry has only had a four-month sex offender education

program but no treatment, which put Terry at a higher risk for reoffending upon

release from prison. Terry’s age was a protective factor that could mediate his risk

for reoffending, although Dr. Self could not say how much of a protective factor

age was in Terry’s case because the records indicate Terry started offending at age

fifty-five. Dr. Self identified no other protective factors for Terry.

Terry scored “zero[]” on the Static-99R actuarial scored by a licensed

psychologist, and Terry’s score is associated with a low risk of reoffending. Dr.

Self testified that the actuarial did not consider Terry’s “[t]wo shoeboxes full of

drawings and writings that indicate an extraordinary preoccupation with sadistic

pedophilic fantasy[]” and Terry’s score on the actuarial did not accurately indicate

Terry’s current level of risk.

Dr. Self explained that Terry had told him that Terry’s “whole plan[]” upon

release was that he “would go wherever they sent him[]” and “try to get

connected” with AA and sex addicts anonymous groups. Dr. Self explained that

the prospect of Terry going to a sex addicts group was “problematic[]” because

many people who go to such groups are insincere and negative relationships are

18
formed, and, as a result of reading Terry’s deposition, Self was concerned that

Terry wanted to “get hooked up with [] Sex Addicts Anonymous to find friends or

other people who write weird stuff like him[.]” According to Dr. Self, Terry was

not able to articulate a plan to avoid sexual re-offense and, in Self’s opinion, Terry

did not have the tools to control the factors in his life that put him at a high risk of

reoffending.

Verdict and Post-Trial Motions

The State moved for a directed verdict on the issue of repeat sexual offender,

which the court granted, and the State rested its case. The defense then moved for a

directed verdict “on the grounds that the State has failed to comply with the

prerequisite of Chapter 841.023(a)[]” because “there was no testing for

psychopathy done[]” either by the psychologist or by Dr. Self.3 The court denied

the defense’s motion for directed verdict, and the defense rested without calling

any witnesses.

The jury found beyond a reasonable doubt that Terry is a sexually violent

predator. The defense moved for judgment notwithstanding the verdict, and the

3
Section 841.023(a) addresses the pre-petition assessment for behavioral
abnormality and states, in relevant part, “[t]he expert shall make a clinical
assessment based on testing for psychopathy, a clinical interview, and other
appropriate assessments and techniques to aid the department in its assessment.”
Tex. Health & Safety Code Ann. § 841.023(a) (West Supp. 2016).

19
court ordered briefing concerning whether an examination for psychopathy is

required by Chapter 841, whether failure to conduct a psychopathy exam is

jurisdictional, whether a jurisdictional proceeding may be raised at any point in the

proceeding, and whether Dr. Self’s testimony that he diagnosed Terry with

antisocial traits was evidence that Self conducted an examination regarding

psychopathy. After a hearing on the motion, the court denied Terry’s Request for

Judgment Notwithstanding the Verdict and the trial court entered its final judgment

and order of commitment. Terry filed a motion for new trial, which the trial court

denied, and Terry timely filed an appeal.

THE SVP STATUTE

In an SVP civil commitment proceeding, the State bears the burden to prove

beyond a reasonable doubt that the respondent is a sexually violent predator. See

Tex. Health & Safety Code Ann. § 841.062 (West 2010); In re Commitment of

Morales, 98 S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied). A person

is a sexually violent predator if the person “is a repeat sexually violent offender[]

and 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) (West Supp. 2016). A behavioral abnormality is “a congenital or

acquired condition that, by affecting a person’s emotional or volitional capacity,

20
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. 2016).

CONSTITUTIONAL CHALLENGE

In his first issue, Terry argues that the SVP statute as amended by Senate

Bill 746 is facially unconstitutional because it requires all persons adjudicated as

sexually violent predators to live in “total confinement” with “severe criminal

penalties” for violating certain requirements of civil commitment, and as amended

fails the “intent-effects test” utilized by the Texas Supreme Court in In re

Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005). Terry contends that the

findings of a trial court judge as to another civilly-committed person, Alonzo May,

equally apply to Terry, and Terry argues that the Supreme Court’s holding in

Fisher depended heavily on the fact that the prior version of the statute provided

for outpatient treatment. Terry also argues that the statutory provisions of “an

‘inpatient’ civil-commitment program in a ‘total confinement facility’” in

combination with criminal penalties for violating certain requirements of civil

commitment “tipped Chapter 841 into the punitive realm[.]”

Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas

Health and Safety Code in several respects. See Act of May 21, 2015, 84th Leg.,

21
R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700, 2700-12 (hereinafter S.B. 746).

The Legislature created a new state agency, the Texas Civil Commitment Office

(TCCO), with the responsibility for treatment and supervision of sexually violent

predators.4 Id. § 3 (current version at Tex. Health & Safety Code Ann. § 841.007

(West Supp. 2016)). The Legislature required the TCCO to develop a tiered

program of supervision and treatment that provides a seamless transition from a

total confinement facility to less restrictive housing and supervision and eventual

release from civil commitment, based on the person’s behavior and progress in

treatment. Id. § 16 (current version at Tex. Health & Safety Code Ann. § 841.0831

(West Supp. 2016)). Under the statute as amended, the TCCO transfers a

committed person to less restrictive housing and supervision if the transfer is in the

best interests of the person and conditions can be imposed that adequately protect

the community, and a committed person may petition the court for a transfer to less

restrictive housing and supervision. Id. (current version at Tex. Health & Safety

Code Ann. § 841.0834 (West Supp. 2016)). The enacting language of SB 746

provides:

4
See Tex. Gov’t Code Ann. § 420A.002 (West Supp. 2016). Throughout this
opinion we refer to the Texas Civil Commitment Office by its acronym, “TCCO.”
The Office of Violent Sex Offender Management (OVSOM) was the predecessor
agency to the TCCO.

22
 If a civil commitment requirement imposed under Chapter 841,
Health and Safety Code, before the effective date of this Act differs
from any of the civil commitment requirements listed in Section
841.082, Health and Safety Code, as amended by this Act, the
applicable court with jurisdiction over the committed person shall,
after notice and hearing, modify the requirement imposed as
applicable to conform to that section.

Id. § 40(b).

When the Texas Legislature implemented the tiered treatment program in

2015, it simultaneously reduced the number of conditions of commitment.

Specifically, the Legislature deleted three conditions of civil commitment:

(1) prohibiting the person’s possession or use of alcohol, inhalants, or a controlled

substance; (2) if determined appropriate by the judge, establishing a child safety

zone in the same manner as a child safety zone is established by a judge under

Section 13B, Article 42.12, Code of Criminal Procedure and requiring the person

to comply with requirements related to the safety zone; and (3) “any other

requirements determined necessary by the judge.” See S.B. 746 § 15. Furthermore,

the 2015 Legislature changed section 841.085 so that violations of only certain

provisions of section 841.082 constitute a criminal offense. Id. § 19.

Generally, to preserve a complaint for appellate review, the complaining

party must present the complaint to the trial court by timely request, objection, or

motion. Tex. R. App. P. 33.1(a)(1). We apply the preservation rule to constitutional

23
challenges. See In re Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex.

App. LEXIS 1098, at *25 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem.

op.) (failure to make a constitutional challenge to the SVP statute at trial

constituted a failure to preserve the issue for appeal); In re Commitment of Dodson,

434 S.W.3d 742, 747 (Tex. App.—Beaumont 2014, pet. denied) (failure to make a

constitutional challenge to the SVP statute at trial constituted a failure to preserve

the issue for appeal); In re Commitment of Johnson, 153 S.W.3d 129, 130 (Tex.

App.—Beaumont 2004, no pet.) (“A complaint regarding the constitutionality of a

statute is subject to the ordinary rules of procedural default.”).5

The statutory amendments about which Terry complains became effective

on June 17, 2015, and Terry’s trial began on October 5, 2015. Terry filed his

motion for judgment notwithstanding the verdict on October 12, 2015, and he filed

5
See also In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (parent failed to
preserve his due process challenge); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
222 (Tex. 2002) (party failed to raise constitutional argument that trial court’s
ruling violated open-courts provision in response to summary judgment motion
and thus did not preserve it for appeal); Dreyer v. Greene, 871 S.W.2d 697, 698
(Tex. 1993) (party waived due process and equal protection challenges by failing
to raise them in trial court); Lowe v. Jefferson Dental Clinics, No. 05-11-00902-
CV, 2012 Tex. App. LEXIS 3796, at **4-5 (Tex. App.—Dallas May 14, 2012, no
pet.) (mem. op.) (appellant failed to preserve her challenge to the constitutionality
of Chapter 74 by failing to raise the complaint in the trial court); In re J.R.N., No.
09-08-00029-CV, 2010 Tex. App. LEXIS 2280, at **8-9 (Tex. App.—Beaumont
Apr. 1, 2010, no pet.) (mem. op.) (“The law is well settled that even constitutional
errors may be waived by failure to raise the issues at trial.”).

24
his motion for new trial on October 28, 2015, neither of which raised a

constitutional challenge. The appellate record indicates that Terry did not raise the

issue of the constitutionality of the SVP statute as amended before or during trial,

and he failed to raise the issue in his post-trial motions. Therefore, he failed to

preserve this issue for appellate review. See Tex. R. App. P. 33.1.

Nevertheless, Terry argues that, after his own trial had concluded and the

court denied his motion for new trial, a different trial court that was hearing

Alonzo May’s civil commitment case declared Chapter 841 as amended

unconstitutionally punitive. See In re Commitment of May, No. 09-15-00513-CV,

2016 Tex. App. LEXIS 8058, at **5-8 (Tex. App.—Beaumont July 28, 2016, no

pet. h.). Citing to Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014)

(Cochran, J., concurring) and Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App.

2015), Terry argues that his constitutional claim on appeal should be considered

timely because “‘a person may always obtain relief from an indictment or a

conviction based on a penal statute that has been previously declared

unconstitutional.’” See Chance, 439 S.W.3d at 919 (Cochran, J. concurring). We

find Chance and Fournier inapposite because those cases pertained to the

constitutionality of a penal statute, and the SVP commitment statute is a civil

statute. See Fisher, 164 S.W.3d at 653 (explaining that the SVP statute is civil);

25
May, 2016 Tex. App. LEXIS 8058, at *17 (concluding that the SVP statute, as

amended in 2015, remains civil).

Even if Terry’s challenge had been timely raised, as we explained in May,

Chapter 841, as amended in 2015, is not unconstitutional. See May, 2016 Tex.

App. LEXIS 8058, at **7-18. In May, we specifically examined and applied the

factors as outlined in Fisher. Id. As to Terry’s argument that the statute as

amended is unconstitutionally punitive because it requires “total confinement” as

well as provides for “severe criminal penalties” for violating certain requirements

of civil commitment, we are unpersuaded. Taken as a whole, the 2015 amendments

reduce the possibility that a person subject to an SVP civil commitment order is

punished criminally for violation of that order. Moreover, “the United States

Supreme Court has never held that the imposition of criminal penalties for

violating a civil regulatory scheme ipso facto renders an act punitive, rather than

civil.” See Fisher, 164 S.W.3d at 652-53 (citing Smith v. Doe, 538 U.S. 84, 90,

105-06 (2003) (holding that Alaska Sex Offender Registration Act was civil even

though a knowing failure to comply would subject the offender to criminal

prosecution) and Hawker v. New York, 170 U.S. 189, 192-94, 200 (1898) (holding

that New York statute prohibiting felons from obtaining licenses to practice

medicine did not violate the ex post facto clause, despite criminal penalties

26
imposed for failure to comply and explaining that “such legislation is not to be

regarded as a mere imposition of additional penalty, but as prescribing the

qualifications for the duties to be discharged and the position to be filled”)). Terry

has failed to meet his burden of providing “the clearest proof” that the SVP statute

as amended is so punitive in either purpose or effect as to negate the stated

Legislative intent that it be civil. See Kansas v. Hendricks, 521 U.S. 346, 361

(1997) (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)). For this

reason and for the same reasons discussed in May, we conclude the statute remains

civil, and we reject Terry’s constitutional challenge. We overrule Terry’s first

issue.

ADMISSION OF EVIDENCE

In his second issue, Terry argues that the trial court erred in admitting State

Exhibits 3 through 10 because their probative value was substantially outweighed

by the danger of unfair prejudice. According to Terry, the State described these

exhibits as “graphic and downright disturbing,” the exhibits “created a danger of

arousing the jury’s hostility toward Mr. Terry without regard to the logical

probative force of this evidence[,]” and there was a “very real danger” that the jury

could have improperly based its verdict on this evidence. Although we read

Appellant’s brief to concede that the evidence was relevant, Appellant then argues

27
that the exhibits “added nothing of any consequence to the [State’s] case except to

inflame the jury against Mr. Terry.”

We review the admission or exclusion of evidence under an abuse of

discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.

1995); In re Commitment of McCarty, No. 09-12-00083-CV, 2013 Tex. App.

LEXIS 7855, at **4-5 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem.

op.). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985). We will not reverse a judgment on the admission or

exclusion of evidence unless an appellant establishes that the trial court’s ruling

was in error and that the error was reasonably calculated to cause and probably did

cause the rendition of an improper judgment. See McCarty, 2013 Tex. App. LEXIS

7855, at *5; see also Tex. R. App. P. 44.1(a)(1).

Texas law presumes that relevant evidence is more probative than

prejudicial. See Tex. R. Evid. 402; In re Commitment of Winkle, 434 S.W.3d 300,

309 (Tex. App.—Beaumont 2014, pet. denied). Relevant evidence may

nonetheless be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice. Tex. R. Evid. 403. However, Rule 403 should be used

“sparingly[]” to exclude relevant evidence. See Winkle, 434 S.W.3d at 309.

28
“Evidence is unfairly prejudicial when it has an undue tendency to suggest that a

decision be made on an improper basis, commonly, but not necessarily, an

emotional one.” In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex.

App.—Beaumont 2013, pet. denied). A trial court’s Rule 403 balancing test

includes, but is not limited to, the following considerations: (1) the probative value

of the evidence, (2) the potential for the evidence to impress the jury in some

irrational way, (3) the time needed to develop the evidence, and (4) the proponent’s

need for the evidence. Id. “The trial court has discretion to determine whether the

probative value of proffered evidence is substantially outweighed by the danger of

unfair prejudice.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 812 (Tex.

2010). We assume the trial court applied the Rule 403 balancing factors, but it

need not have done so on the record. See In re Commitment of Haines, No. 09-15-

00526-CV, 2016 Tex. App. LEXIS 6405, at *16 (Tex. App.—Beaumont June 16,

2016, no pet.) (mem. op.) (citing Allstate Tex. Lloyds v. Potter, 30 S.W.3d 658,

662 (Tex. App.—Texarkana 2000, no pet.)). The jury is the exclusive judge of the

weight and credibility of evidence at trial. See In re Commitment of Rushing, No.

09-11-00268-CV, 2012 Tex. App. LEXIS 8140, at **1-2 (Tex. App.—Beaumont

Sept. 27, 2012, no pet.) (mem. op.) (citing City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005)); see also Kirk v. State, 421 S.W.3d 772, 783-84 (Tex.

29
App.—Fort Worth 2014, pet. ref’d) (It is within the province of the jury, as sole

judge of the evidence, to determine whether provocative demonstrative evidence

bears on an ultimate issue or merely portrays a defendant in a distasteful light.).

A party seeking to reverse a judgment based on evidentiary error must prove

that the judgment turned on the particular evidence that was excluded or admitted.

See In re Commitment of Sells, No. 09-15-00172-CV, 2016 Tex. App. LEXIS

3916, at *26 (Tex. App.—Beaumont, Apr. 14, 2016, pet. denied) (mem. op.)

(citing Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)).

The erroneous “admission or exclusion [of evidence] is likely harmless if the

evidence was cumulative, or if the rest of the evidence was so one-sided that the

error likely made no difference.” Reliance Steel & Aluminum Co. v. Sevcik, 267

S.W.3d 867, 873 (Tex. 2008) (footnote omitted); Wesbrook v. State, 29 S.W.3d

103, 119 (Tex. Crim. App. 2000) (erroneous admission of evidence is harmless

where the evidence reflects such evidence did not “move[] the jury from a state of

nonpersuasion to one of persuasion as to the issue in question[]”); Kirk, 421

S.W.3d at 783-84 (no harm to admit provocative photographs that may have

portrayed defendant in a distasteful light because the record did not reflect that the

photographs likely moved the jury from acquitting to convicting defendant).

30
 Exhibits 3 through 10 provide evidence of Terry’s sexual preoccupation, and

Dr. Self explained that he reviewed and relied upon the documents in forming his

opinion that Terry currently has a behavioral abnormality. Terry testified that he

had written pornographic fantasies and had made explicit drawings about M.G. and

K.P. Dr. Self testified that State’s Exhibits 3 through 10 reflected a pattern in

Terry’s behavior of “stepping up,” which is an “escalation in seriousness[]” of his

behavior, and that there was a “risk” that Terry would move from fantasy and

thinking to “doing more[]” or acting on impulses. We have repeatedly approved

the admission of an expert’s basis evidence in SVP cases. See In re Commitment of

Alvarado, No. 09-13-00217-CV, 2014 Tex. App. LEXIS 3343, at **26-30 (Tex.

App.—Beaumont Mar. 27, 2014, pet. denied) (mem. op.) (“Trial courts have

discretion to admit the underlying facts or data on which an expert has based an

opinion.”); In re Commitment of Day, 342 S.W.3d 193, 197-99 (Tex. App.—

Beaumont 2011, pet. denied). State’s Exhibit 3 through 10 were created by Terry

and were considered by Dr. Self in developing his opinion. Citing to Salazar v.

State, 90 S.W.3d 330 (Tex. Crim. App. 2002), Terry argues that a Rule 403

balancing test requires a court to consider, among other factors, the proponent’s

need for the evidence, and that in this case, the State did not articulate “a specific

need it had for these exhibits beyond what other evidence available . . . already

31
undisputedly established.” Assuming without deciding that a trial court must

consider the proponent’s need for the evidence, we conclude that the trial court

could have reasonably concluded the State demonstrated its need for this evidence

because the record reflects that Dr. Self relied upon and reviewed the evidence in

forming his opinion, and Exhibits 3 through 10 illustrated Terry’s “stepping up”

process as well as Terry’s sexual preoccupation.

Citing to Salazar and Casey v. State, 215 S.W.3d 870 (Tex. Crim. App.

2007), Appellant also complains that “without having explicitly weighed and

balanced these factors and without having articulated a rationale for admitting

these exhibits, the trial court’s ruling is not entitled to the ‘greatest deference.’” A

trial court need not conduct its Rule 403 balancing test on the record. See Haines,

2016 Tex. App. LEXIS 6405, at *16; see also Santellan v. State, 939 S.W.2d 155,

173 (Tex. Crim. App. 1997) (“Although appellant asserts that the trial court did not

perform the balancing test, the trial court did not explicitly refuse to do the test, it

simply overruled appellant’s Rule 403 objections. We find nothing in the record to

indicate that the trial court did not perform a balancing test, albeit a cursory one.”).

Appellant points to nothing in the record to support his assertion that the trial court

failed to conduct a Rule 403 balancing test. See Tex. R. App. P. 38.1(i).

Furthermore, Appellant’s argument that admission of the exhibits created “a very

32
real danger that the jury could have improperly based its verdict on this evidence

alone” falls short of Appellant’s burden to show that the judgment actually turned

on the particular evidence that was admitted. See Sells, 2016 Tex. App. LEXIS

3916, at *26. On the record before us, we cannot conclude the trial court abused its

discretion in admitting the evidence or that any error in the admission of Exhibits 3

through 10 probably resulted in an improper judgment. See Tex. R. App. P.

44.1(a)(1); McCarty, 2013 Tex. App. LEXIS 7855, at *5. We overrule Appellant’s

second issue on appeal.

LEGAL AND FACTUAL SUFFICIENCY

In his third issue, Appellant argues that, even assuming the evidence upon

which the experts relied was reliable, the evidence at trial was legally and factually

insufficient to support the jury’s finding beyond a reasonable doubt that Terry has

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

sexual violence. In particular, Appellant argues that because Dr. Self testified that

the word “likely” is not defined in the statute but means “beyond a mere possibility

of harm[,]” the jury’s verdict means “the jury found[] that Mr. Terry has a

behavioral abnormality because it is ‘beyond a mere possibility’ that Mr. Terry will

offend.”

33
 Under a legal sufficiency review, we assess all the evidence in the light most

favorable to the verdict to determine whether a rational trier of fact could find,

beyond a reasonable doubt, the elements required for commitment under the SVP

statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont

2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in

the testimony, weigh the evidence, and draw reasonable inferences from basic facts

to ultimate facts. Id. at 887. Under a factual sufficiency review, we weigh the

evidence to determine “whether a verdict that is supported by legally sufficient

evidence nevertheless reflects a risk of injustice that would compel ordering a new

trial.” Day, 342 S.W.3d at 213.

We have previously concluded in other SVP civil commitment appeals that

Dr. Self’s working definition of likely being defined as “more than a mere

possibility” does not render the evidence in an SVP civil commitment case legally

or factually insufficient. See In re Commitment of Muzzy, No. 09-13-00496-CV,

2014 Tex. App. LEXIS 4750, at **5-7 (Tex. App.—Beaumont May 1, 2014, pet.

denied) (mem. op.). In Muzzy we stated:

. . . First, Muzzy complains of the experts’ definitions of
“likely.” Self defined “likely” as “[m]ore than a mere possibility.”
[Another expert] explained that the meaning of “likely” is “up to each
individual evaluator or clinician[,]” but that he believed “likely” to
mean “a pretty good chance something is going to happen.” Muzzy
argues that both these definitions fail to “comport with the

34
 constitutional requirements for involuntary civil commitment.”
However, this Court has rejected the notion that the term “likely” has
a precise definition of the type associated with any certain assigned
percentage of risk. In re Commitment of Kalati, 370 S.W.3d 435, 439
(Tex. App.—Beaumont 2012, pet. denied). Additionally, the experts’
testimony is not insufficient merely because the term “likely” is not
defined by the statute or case law. In re Commitment of Kirsch, No.
09-08-00004-CV, 2009 Tex. App. LEXIS 5436, at *17 (Tex. App.—
Beaumont July 16, 2009, pet. denied) (mem. op.). Nor does an
expert’s explanation of the term “likely,” in and of itself, render the
evidence insufficient to support a jury’s finding that a person suffers
from a behavioral abnormality. Id. at *19. Rather, an expert’s
definition merely goes to the weight that the jury might give the
expert’s testimony. Id.

Id.; see also Rushing, 2012 Tex. App. LEXIS 8140, at **4-5 (“Noticeably absent

from the statute describing a sexually violent predator is any requirement that the

person’s behavioral abnormality make the person more likely than not to engage in

a predatory act of sexual violence.”) (emphasis in original).

In this case, Dr. Self testified that Terry suffers from a behavioral

abnormality that predisposes him to engage in a predatory act of sexual violence.

Dr. Self diagnosed Terry with pedophilic disorder and explained that pedophilia is

a chronic condition that does not go away. Self also characterized Terry as having

an attitude that was tolerant of sexual assault, as denying his urges, and as

rationalizing his offenses and blaming his victims. Self also diagnosed Terry with

antisocial traits, personality disorder not otherwise specified, and

methamphetamine and alcohol dependence in remission in a controlled

35
environment. Self explained that substance abuse increases the risk of reoffending

because drugs disinhibit and make a person “more aggressive, more impulsive and

raise the risk through the roof.” According to Dr. Self, Terry’s history of

employment instability and his lack of social support put Terry at a higher risk of

relapse. Self further explained that the fact that Terry had not had any sex offender

treatment also increases Terry’s risk for reoffending. Terry himself testified that he

“[s]ometimes[]” is attracted to female children. He also agreed he is a sex offender

and needs sex offender treatment, but he does not believe he is at risk of

reoffending. Terry also agreed he has possessed a prohibited photograph of a

partially-clad woman while in prison.

The jury was entitled to infer Terry’s current dangerousness from the

evidence presented, including the experts’ testimony, Terry’s past behavior, and

Terry’s own testimony. See In re Commitment of Wilson, No. 09-08-00043-CV,

2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—Beaumont Aug. 27, 2009, no

pet.) (mem. op.). As the sole judge of the weight and credibility of the evidence,

the jury could reasonably conclude that Terry suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

See In re Commitment of Lowe, No. 09-14-00098-CV, 2014 Tex. App. LEXIS

10034, at *6 (Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.); see also

36
Wilson, 2009 Tex. App. LEXIS 6714, at *14; Mullens, 92 S.W.3d at 887. We

conclude that the jury’s verdict is supported by legally sufficient evidence and does

not reflect a risk of injustice that would compel ordering a new trial. See Day, 342

S.W.3d at 213. We overrule Terry’s third issue on appeal.

Having overruled all Terry’s issues on appeal, we affirm the trial court’s

judgment and order of civil commitment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on July 14, 2016
Opinion Delivered December 15, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.

37