Opinion
NO. 09-11-00390-CV
06-14-2012
IN RE COMMITMENT OF DAVID GERALD PETRUS
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-09-09830-CV
MEMORANDUM OPINION
David Gerald Petrus appeals his civil commitment as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011) (SVP statute). In one issue, Petrus challenges the trial court's jurisdiction to render an order of civil commitment. In a second issue, he contends the trial court denied Petrus his statutory right to a trial by jury by permitting the State to elicit testimony regarding whether the State's expert believed certain statements Petrus made during an interview. We affirm the trial court's judgment.
By statute, the State is authorized to file commitment proceedings to commit sexually violent predators in district courts, other than a family district court, located in Montgomery County. Tex. Health & Safety Code Ann. § 841.041 (West 2010). The State in Petrus's case filed a petition in an appropriate district court located within Montgomery County. The State's petition alleges "[t]his Court has jurisdiction and venue over this matter under Section 841.041 of the Health and Safety Code." The State's petition identifies three criminal proceedings as the factual basis for proceeding under section 841.041, as follows:
Defendant pled nolo contendere on or about October 28, 1991, in the 36th Judicial District Court in San Patricio County, Texas, in Cause No. 8168, for the offense of Aggravated Sexual Assault of a Child, PC 22.021, constituting a sexually violent offense. He was incarcerated for this conviction;
Defendant pled nolo contendere on or about October 28, 1991, in the 36th Judicial District Court in San Patricio County, Texas, in Cause No. 8168, for the offense of Indecency with a Child, PC 21.11, constituting a sexually violent offense. He was incarcerated for this conviction, and;
Defendant pled guilty on or about February 15, 1988, in the 36th Judicial District Court in San Patricio County, Texas, in Cause No. 6969, for the offense of Indecency with a Child, PC 21.11, constituting a sexually violent offense. He was incarcerated for this conviction.
Appellant's conviction for the offenses alleged in the State's petition were proven at trial. The parties stipulated to the three offenses, one of which resulted in a conviction for an offense under section 21.11(a)(1). See Tex. Penal Code Ann. § 21.11(a) (West 2011). The trial court granted a directed verdict on Petrus's status as a repeat sexually violent offender. See Tex. Health & Safety Code Ann. § 841.003(b) (West 2010) § 841.002(8) (West Supp. 2011). Notwithstanding the pleadings and the proof at trial, Petrus contends the trial court lacked jurisdiction to enter a judgment in this case because the State failed to allege that Petrus committed offenses that are specifically listed in Section 841.002(8)(A) ("'Sexually violent offense'" means "an offense under Section 21.02, 21.11(a)(1), 22.011, or 22.021, Penal Code[.]"). Indecency by contact under 21.11(a)(1) is specifically listed in the statutory definition for a sexually violent offense but indecency by exposure under section 21.11(a)(2) is not. See Tex. Health & Safety Code Ann. § 841.002(8)(A); Tex. Penal Code Ann. § 21.11(a).
Petrus fails to properly distinguish between the requirements for establishing jurisdiction and pleading it. The cases upon which Petrus relies involved plaintiffs who could not have amended their pleadings to correct a jurisdictional defect because the trial court had no jurisdiction when the cases were filed. See Bullock v. Adickes, 593 S.W.2d 805, 808-09 (Tex. Civ. App.—Austin 1980, writ ref'd n.r.e.) (holding that the taxpayer's failure to pay the protested taxes before filing suit could not be cured by paying later and amending pleadings); Byke v. City of Corpus Christi, 569 S.W.2d 927, 930-33 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e.) (explaining that when plaintiff failed to meet amount in controversy at time of filing, jurisdiction could not be established by amending petition to add more plaintiffs). In these cases, the trial court was required to dismiss the suits. Adickes, 593 S.W.2d at 809; Byke, 569 S.W.2d at 929, 933.
Where a court's lack of jurisdiction over the subject-matter or over the parties is apparent from the record, a judgment that adjudicates the merits of the case is void because the trial court had no capacity to act with respect to that matter as a court. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). In contrast, when a plaintiff fails to plead facts which state a cause of action but has filed in a court that could otherwise possess jurisdiction over the parties and the subject-matter of the dispute, the trial court is required to allow the plaintiff an opportunity to amend the pleadings before it is authorized to dismiss the suit. See Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex. 1989) ("Unless the petition affirmatively demonstrates that no cause of action exists or that plaintiff's recovery is barred, we require the trial court to give the plaintiff an opportunity to amend before granting a motion to dismiss or a motion for summary judgment."). Nonetheless, the defendant waives the right to complain of a defect in pleading that concerns the trial court's jurisdiction if the defendant has not raised the issue and plaintiff establishes that the trial court had jurisdiction before resting its case. Id. at 805.
Petrus does not argue that the State failed to establish the trial court's jurisdiction over his case before the State rested. Instead, Petrus seeks to avoid the holding in Peek by arguing that the statutory language in section 841.041 requires that the petition in SVP cases state facts sufficient to support the allegation of sexually violent predator status without considering the State's right to amend if necessary, or establish the trial court's jurisdiction at trial absent any objection. See Tex. Health & Safety Code Ann. § 841.041; see also Peek, 779 S.W.3d at 805.
We are not free to interpret the statute as having been intended to change the manner courts are required to approach a challenge to a trial court's jurisdiction. A mandatory provision in a statute is not construed as jurisdictional absent clear legislative intent to that effect. In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306 (Tex. 2010). Section 841.041 provides who may file a petition for civil commitment (the attorney representing the State), where the petition is filed (a district court in Montgomery County), when the petition is filed (not later than the 90th day after referral), what the petition states (that the person is a sexually violent predator), and how the matter proceeds (by serving the person as soon as practicable). See Tex. Health & Safety Code Ann. § 841.041. The language in section 841.041 does not evidence a clear legislative intent to disallow our consideration of the facts that were proven at trial in reviewing a challenge to the trial court's jurisdiction in an SVP case. Id.
Moreover, the State did invoke the trial court's jurisdiction in its pleading. The State both alleged that the court of filing had jurisdiction over the case pursuant to Section 841.041, and the State alleged that Petrus had qualifying offenses under sections 22.021 and 21.11(a)(1) of the Texas Penal Code. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021 (West Supp. 2011). At trial, the State proved that Petrus had been convicted of two prior sexually violent offenses that met the requisites of section 841.002(8)(A). See Tex. Health & Safety Code Ann. § 841.002(8)(A). Any uncertainty regarding which subsection of section 22.011 the State intended to prove at trial could have been resolved had Petrus filed special exceptions and had the State clarified any ambiguity created by its pleading. Having reviewed the record of the trial, we conclude that the record shows the trial court had jurisdiction to decide the commitment proceeding. We overrule issue one.
In his second issue, Petrus complains about testimony from the State's testifying psychiatrist, Dr. Michael Arambula, and the State's testifying psychologist, Dr. Timothy Proctor. Dr. Arambula testified that Petrus minimizes his offenses. According to Dr. Arambula, denial is expected in a pedophile and what sex offender treatment does for sex offenders is "beats their denial down to nothing" so that the offender's conscience is engaged and they appreciate their risk and desire to avoid hurting someone in the future. Dr. Arambula expressed his opinion that Petrus has little insight into how dangerous he is. On re-direct, Dr. Arambula stated that Petrus has denied having ever assaulted one of his child victims and has minimized the amount of sexual offending with respect to another victim. According to Dr. Arambula, there is a large discrepancy between Petrus's statement and the child's.
Dr. Proctor stated that Petrus told him that he never had any sexual interest in children. Dr. Proctor noted that Petrus has several convictions and allegations regarding sexual offending against children, and stated that "you have to look beyond being in prison to what his behaviors were when he was around kids." As to the offenses that resulted in Petrus's initial incarceration, Dr. Proctor explained that Petrus, during his interview, had denied having done anything sexually inappropriate with any of the girls other than having exposed his genitals to one of the children. Dr. Proctor stated that based on all available information, he did not believe Petrus's version was credible. Regarding the offense that resulted in Petrus's second incarceration, Dr. Proctor stated that Petrus admitted to having sexually abused a child who was living in the household. Dr. Proctor stated that he believed Petrus's version of what happened "to some extent" but thought Petrus exhibited both minimization and denial concerning his acts based on the discrepancies between Petrus's version and the accounts that are in the official record. Dr. Proctor identified this minimization and denial as a risk factor for reoffending. During cross-examination, Dr. Proctor stated that he found it difficult to determine the degree to which Petrus's alcohol abuse contributed to the offenses because Petrus claimed that he was not really interested in children and only reoffended after his release from prison so people would leave him alone so that he could drink. Additionally, Petrus claimed that he stopped having active fantasies about children ten years ago. However, Dr. Proctor stated that the fact that Petrus did not admit to having had sexual fantasies about children for the last ten years did not mean that Petrus has not had them.
On appeal, Petrus admits that trial counsel did not object that this testimony was inadmissible under Texas Rule of Evidence 702 on the basis that it invaded the province of the jury. See Tex. R. Evid. 702. Citing Schutz v. State, among other cases, he argues that the issue should be reviewed on appeal because the admission of the testimony violates his statutory right to a jury trial on the paramount issue of credibility. See Schutz v. State, 957 S.W.2d 52, 69-70 (Tex. Crim. App. 1997) (directing that expert testimony regarding manipulation and fantasy, whether relating to mental capacity or moral disposition, should be analyzed under the same rules that govern evidence of truthful or untruthful character); but see Oliver v. State, 32 S.W.3d 300, 303-04 (Tex. App.—San Antonio 2000, pet. refused) (holding that to preserve error, a complaint regarding an expert's testimony about credibility of a witness must be the subject of a trial objection). We have previously held that a claim the State should not have solicited testimony that the expert witnesses did not believe the person who is the subject of the commitment proceeding must be preserved by an objection or it is waived. In re Frazier, No. 09-10-00033-CV, 2011 WL 2566317, at *2 (Tex. App.—Beaumont June 30, 2011, no pet.). We also conclude that the rules regarding error preservation apply to Petrus under the circumstances that are presented here. See Tex. R. App. P. 33.1. We conclude that Petrus did not preserve the complaints he makes in issue two for appellate review: we overrule issue two and affirm the trial court's judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.