in Re Commitment of Michael Loeviticus Terry, 09-15-00500-CV

Background

Terry, convicted in 2007 of two counts of indecency with a child by sexual contact, was the subject of a civil SVP commitment proceeding; a jury found him a sexually violent predator and the trial court entered an order of civil commitment.
The State introduced Terry’s prison (pen) packet and a compendium of drawings/writings (Exhibits 3–10) that Terry had created; Terry admitted authorship but characterized the materials as fantasies made while using methamphetamine and alcohol.
Dr. David Self (State expert) reviewed records, interviewed Terry, relied on the writings/pictures and other records, and opined Terry has a behavioral abnormality (pedophilic disorder; antisocial traits) predisposing him to predatory sexual violence.
Defense objected to admission of Exhibits 3–10 under hearsay, best evidence, and Rule 403 (unduly prejudicial); the court admitted them as basis evidence for the expert.
Defense raised post-trial challenges (JNOV, new trial) including that psychopathy testing required by §841.023(a) was not performed; did not timely raise a constitutional challenge to the 2015 amendments to Chapter 841 at trial.
The Ninth Court of Appeals affirmed: (1) the facial constitutional challenge was not preserved and, even if considered, the amended SVP statute remained civil; (2) admission of Exhibits 3–10 was within the trial court’s Rule 403 discretion; (3) the evidence was legally and factually sufficient to support commitment.

Issues

Issue	Terry's Argument	State's Argument	Held
1. Constitutionality of Chapter 841 as amended (S.B. 746)	Amendments impose "total confinement" and criminal penalties that make the statute punitive and thus unconstitutional under Fisher intent-effects test	Statute remains civil; 2015 amendments reduce criminalization and implement tiered treatment; Terry failed to preserve the claim	Not preserved for appeal; on the merits, statute remains civil and challenge rejected
2. Admission of Exhibits 3–10 (drawings/writings) under Rule 403	Exhibits were graphic, inflammatory, cumulative, and unfairly prejudicial — should have been excluded	Exhibits were relevant basis evidence relied on by Dr. Self to explain his opinion about sexual preoccupation and "stepping up"; probative value outweighed prejudice	Trial court did not abuse discretion admitting the exhibits; no reversible harm
3. Sufficiency of the evidence to prove behavioral abnormality and likelihood to reoffend	Expert testimony (and lay evidence) was insufficient; expert’s definition of “likely” as more than a mere possibility is inadequate	Expert testimony, Terry’s writings, convictions, admissions, and Dr. Self’s diagnoses support jurors’ finding of behavioral abnormality and dangerousness	Evidence legally and factually sufficient; jury reasonably concluded Terry is a sexually violent predator
4. Requirement of psychopathy testing under §841.023(a) (raised at trial/post-trial)	Defense argued lack of psychopathy testing defeated statutory pre-petition assessment requirement	State proceeded on expert clinical assessment and the court rejected the defense motion for directed verdict	Trial court denied directed verdict; issue did not yield reversal on appeal

Key Cases Cited

In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005) (framework for assessing whether SVP statute is punitive or civil)
Smith v. Doe, 538 U.S. 84 (U.S. 2003) (civil regulatory scheme with criminal penalties does not automatically render it punitive)
Hawker v. New York, 170 U.S. 189 (U.S. 1898) (legislation prescribing qualifications and restrictions may have civil character despite criminal penalties for violations)
Kansas v. Hendricks, 521 U.S. 346 (U.S. 1997) (SVP commitment upheld as civil if not punitive in purpose/effect)
Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (discussion of relief for convictions under statutes later declared unconstitutional — distinguished here as penal context)
Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015) (related criminal-law precedents about retroactivity and relief — distinguished)
In re Commitment of Winkle, 434 S.W.3d 300 (Tex. App.—Beaumont 2014) (evidentiary and Rule 403 principles in SVP proceedings)