In re COMMITMENT OF Norman Lewis EVERS
No. 09-11-00430-CV
Court of Appeals of Texas, Beaumont
Dec. 13, 2012
Submitted on July 19, 2012.
Thе pleadings and evidence showed the whiteboard was large, four foot by eight foot, with a metal frame. The whiteboard was placed on top of a “narrow” table and was propped up against the wall in close proximity to a conference table where patients were seated during group meetings. Although the whiteboard was not being used as a visual aid at the time of the injury, it was on display and available for that purpose. According to Juarez, Metrocare was negligent in failing to properly secure the whiteboard near where patients were seated. Contrary to Metrocare’s assertion, Juarez’s negligence allegations did not concern the “mere involvement” of the whiteboard; rather, Juarez alleged negligence directly related to the whiteboard and the whiteboard was the actual instrumentality of his injury. We conclude Metroсare has failed to show the trial court erred in denying its plea to the jurisdiction. We affirm the trial court’s order denying Metrocare’s plea to the jurisdiction.
Melinda Fletcher, Special Prosecution Unit, Amarillo, for Appellee.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
OPINION
DAVID GAULTNEY, Justice.
Appellant, Norman Lewis Evers, filed a motion for rehearing after this Court issued a memorandum opinion in the appeal from his civil сommitment as a sexually violent predator. See
JURISDICTION
We begin with Evers’s argument in issue one regarding
The aim of statutory construction is to determine and give effect to the Legislature’s intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). We review the construction of a statute de novo. See Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex.2011). A reviewing court looks first to the plain and common meaning of the statute’s words. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). If the meaning of a statute is clear and unambiguous, the court defines the statute’s words according to their common meaning without resort to rules of construction or extrinsic aids. In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007). If a word acquires meaning by legislative definition or otherwise, the words in a statute are given their technical meaning. Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex.2012).
(a) Before the person’s anticipated release date, the Texas Department of Criminal Justice shall give to the multidisciplinary team established under
Section 841.022 , written notice of the anticipated release of a person who:(1) is serving a sentence for:
(A) a sexually violent offense described by
Section 841.002(8)(A), (B), or (C) ;. . . .
and
(2) may be a repeat sexually violent offender.
. . . .
The phrase “anticipated release date” is not expressly defined in Chapter 841, and sections 841.021 through 841.023 (thе statutes governing the pre-petition administrative process) do not suggest that the phrase has a technical meaning. See
The statute does not indicatе that the word “release” in the phrase “anticipated release date” has that narrow meaning. See
The legislative history to Senate Bill 29 (one of the bills addressing sexually violent predator issues) states, “Currently, sexually violent predators are being released from prison once they have served out their sentences even when criminal justice officials are confident that they will offend again.” Senate Comm. on State Affairs, Bill Analysis, Tex. S.B. 29, 76th Leg., R.S. (1999). Although this explanation speaks of “served out their sentences,” the language employed in the statute passed by the Legislature does not contain that wording. If the Legislature intended to limit civil commitment under Chapter 841 to only those persons completing their sentences and not on parole, we believe it would have done so expressly. See generally Traxler, 376 S.W.3d at 747; TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011) (“We presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.“).
Moreover, when 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. See In re United Servs. Auto. Ass‘n, 307 S.W.3d 299, 307 (Tex.2010). This presumption is overcome only by clear legislative intent to the contrary. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). The Texas Supreme Court has explained that we are to look аt the statutory provision itself to ascertain whether the statute provides clear legislative intent that it is jurisdictional. See id.
Also,
In conjunction with his statutory construction argument, Evers references statutes concerning parole from the Government Code, and asserts that the “comprehensive statutory parole law scheme in Chapter 508 . . . is further evidence that the Legislature did not intend for the civil commitment provisions in Chapter 841 . . . to apply to a parolee or to someone about to make parole[.]” See
The purpose of the civil commitment statute is to protect the community from harm and to treat the individual who has been committed as a sexually violent predatоr. See In re Commitment of Fisher, 164 S.W.3d 637, 648, 651 (Tex.2005); see also
Ripeness
In his motion for rehearing, Evers raises a jurisdictional challenge based on ripeness. “Ripeness ‘is a threshold issue that implicates subject matter jurisdiction . . . [and] emphasizes the need for a concrete injury for a justiciable claim to be presented.‘” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000) (quoting Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex.1998)); see also Robinson v. Parker, 353 S.W.3d 753, 755 (Tex.2011). Ripeness focuses on when the action may be brought. Waco Indep. Sch. Dist., 22 S.W.3d at 851-52. In determining whether a controversy is ripe for adjudication, the court considers whether the case involves contingent or uncertain future events which may not occur as anticipated or may not occur at all. Patterson, 971 S.W.2d at 442-43; In re Commitment of Shaw, 117 S.W.3d 520, 523 (Tex.App.-Beaumont 2003, pet. denied). “The ripeness doctrine avoids premature adjudication on a hypothetical set of facts.” McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex.2001).
This Court addressed a ripeness argument in In re Commitment of Robertson, 2010 WL 3518509, at *12-13. The State filed a petition to commit Robertson. Apрroximately a month and a half later, he was charged with two offenses he committed while incarcerated. Robertson received a four year sentence. Less than a year later, he filed a motion to dismiss the petition to commit him as a sexually violent predator. He argued that because his release from prison was not imminent, the SVP case was not ripe and the trial court lacked jurisdiction. This Court rejected Robertsоn’s ripeness jurisdictional challenge. Id.
As in Robertson, the ripeness argument here has no merit. Whether the person is convicted of another offense after the State files a petition seeking civil 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. See Robertson, 2010 WL 3518509 at *13. We are not pеrsuaded by Evers’s ripeness and jurisdictional arguments, or his arguments concerning the “release” date. We overrule appellant’s challenges to the trial court’s jurisdiction.
The State must prove beyond a reasonable doubt that the person to be committed under the statute is a sexually violent predator. See
In a legal sufficiency challenge, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find, beyond a reasonable doubt, the elements required for commitment under the SVP statute. See In re Commitment of Mullens, 92 S.W.3d at 885. A factual sufficiency challenge to an SVP commitment order requires this Court to weigh the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice so great that we are compelled to grant a new trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex.App.-Beaumont 2011, pet. denied).
In issues two and three, Evers argues the evidence is insufficient to support a finding that he is likely to commit a predatory act of sexual violence while he is on parole supervision. Relying on Chapter 508 in general and
Evers asserts that, because
Evers does not directly challenge the finding that he has a behavioral abnormality. He limits his focus to his contention that the State had to show he would likely engagе in a predatory act of sexual violence while he is on SISP parole. He asserts, in effect, that the parole panel’s belief that a person is “able and willing to fulfill the obligations of a law-abiding citizen” is the functional equivalent of a finding that a person is not likely to “engage in a predatory act of sexual violence.” See
A belief by the Board is not the functional equivalent of a finding that a person does not have a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The Board does not make that analysis or determination, because the statute does not give the Board that task. As one Court has noted, “A finding that a person suffers from an emotional or volitional defect so grave as to predispose him to threaten the health and safety of others with acts of sexual violence entails a determination that he has ‘serious difficulty controlling behavior.‘” In re Commitment of Browning, 113 S.W.3d 851, 863 (Tex.App.-Austin 2003, pet. denied). The SVP civil commitment statute addresses the released person’s increased risk within the context of the statutory definition of behavioral abnormality. The granting of parole does not exclude the possibility of civil commitment.
Furthermore, nothing in the civil commitment statute limits the scope of the records reviewed by the experts to those records relating only to the time Evers has spent on SISP parole. Although the jury could consider Evers’s record while on SISP parole, the jury wаs not confined to consideration of only that time frame. See generally
Evers had previously been convicted in Texas of six offenses of burglary of a habitation with intent to commit rape. There was also evidence of a rape of a woman in California. The experts reviewed records indicating Evers raped seven women from 1979-1980. He was sentenced in 1982 for the six Texas offenses and paroled in 1990. In 1991, Evers was convicted оf burglary of a habitation and was returned to prison. He was released on SISP parole in March 2011. See
The State’s experts testified that Evers suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Dr. Thorne, a clinical and forensic psychologist, diagnosed Evers with paraphilia not otherwise specified (a sexual disorder), a depressive disorder, a long-standing psychotic disorder, and an antisocial personality disorder (defiance of authority, violations of laws or expectations of society). Dr. Arambula, a psychiatrist, made similar diagnoses, in addition to diagnoses of polysubstance abuse by history and a form of paraphilia with features of sadism.
The jury heard evidence regarding Evers’s criminal history (which included multiple rapes involving the use of threats, violence, and weapons); actuarial test results (with scores indicating a high risk of reoffending); victimization of women; antisocial personality disorder; sadistic behavior; and a history of drug abuse. The jury also heard testimony regarding Evers’s conduct in prison. He had forty-seven disciplinary infractions. Dr. Thorne testified Evers was still exhibiting in prison the sexual deviancy that he exhibited outside prison. Basеd on significant risk factors, Dr. Arambula testified that Evers is at substantial risk to do what he has done in the past.
Arnold Pruitt, Evers’s parole officer on SISP, testified Evers had only been on the supervision for approximately a month, and that he had complied with the probation requirements during that time.
Evers maintains that at age fifty he is a changed man. He has completed his GED, taken some college courses, and completed drug and alcohol classes and the Changes class in prison. He testified that the fourteen femalе officers who reported instances of his sexual misconduct were lying.
Considering all the evidence in the light most favorable to the verdict, we conclude the jury could reasonably find beyond a reasonable doubt that Evers has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The record does not reflect a risk of injustice that compels granting a new trial. The evidence is sufficient to support the jury’s verdict.
Appellant’s issues are overruled. The trial court’s judgment is affirmed.
AFFIRMED.