Opinion
No. 09-02-543 CV.
Submitted on August 20, 2003.
Opinion Delivered October 2, 2003.
Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 00-02-01035-CV.
AFFIRMED.
For Appellant: Kenneth Balusek — State Counsel for Offenders — Huntsville.
For Appellee: Autumn Lewis — Special Prosecution Unit — Huntsville.
Before McKeithen, C.J., Burgess and Gaultney, JJ.
MEMORANDUM OPINION
Tex.R.App.P. 47.4.
Daniel Craig Weeks has appealed from the "Final Nunc Pro Tunc Judgment and Order of Civil Commitment" rendered by the trial court pursuant to Tex. Health Safety Code Ann. ch. 841, providing for civil commitment of those found to be sexually violent predators. Weeks raises three issues: 1) Texas Health Safety Code Chapter 841 is unconstitutional because it is punitive in nature and violates basic constitutional safeguards; 2) due process was violated when the trial court refused to submit the issue of volitional control to the jury; and 3) Texas Health Safety Code Chapter 841 is unconstitutionally vague and violates the separation of powers doctrine. Because the issues raised in this case have been settled by previous opinions of this Court, we issue a Memorandum Opinion. Tex.R.App.P. 47.4.
Procedural History
The State began this action in the Montgomery County District Court alleging that Weeks, an inmate of the Texas Department of Criminal Justice, was a repeat sexually violent offender, and that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The State sought Weeks's civil commitment pursuant to Title 11, Article 841 of the Health and Safety Code "until such time as his behavior abnormality has changed to the extent that he is no longer likely to engage in a predatory act of sexual violence."
By statute, the Montgomery County District Court has jurisdiction over these actions. See Tex. Health Safety Code Ann. § 841.041(a) (Vernon 2003).
See Tex. Health Safety Code Ann. § 841.081 (Vernon 2003).
After trial, a jury unanimously determined, beyond a reasonable doubt, that Weeks suffered from a behavioral abnormality making him likely to engage in a predatory act of sexual violence. The trial court ordered Weeks to be civilly committed for outpatient treatment and supervision to commence upon his release from TDCJ.
See Tex. Health Safety Code Ann. § 841.062 (Vernon 2003).
See Tex. Health Safety Code Ann. § 841.081 (Vernon 2003).
Factual Background
The evidence showed that Weeks had two previous convictions in Harris County, Texas, for sexual assault. Dr. Rahn Bailey, a forensic psychiatrist, testified that, based upon his one and one-half hour personal interview and reviewing past records, Weeks is an individual likely to reoffend sexually, due to behavior abnormality. Bailey pointed specifically to the nature of the offenses (entry into the women's rest rooms at fast food restaurants to commit the assaults), Weeks's sexual activity, both outside (homosexual prostitution and dancer at a gay bar) and while in prison, poor performance on recognized psychological tests, mood and psychotic disorders, "impulsivity" in behavior, and history of substance abuse. Dr. Windel Dickerson, also a psychiatrist, testified that while his interview with Weeks and review of his record would indicate a relatively high risk of reoffending generally, it does not specifically indicate a particularly high risk of reoffending sexually.
Contention that Chapter 841 is Punitive
In his first issue, Weeks contends that Texas Health Safety Code Chapter 841 is actually punitive in nature and violates basic constitutional rights. In Beasley v. Molett, 95 S.W.3d 590 (Tex.App.-Beaumont 2002, pet. filed), this Court addressed the same contention. Noting that the statute had been labeled as a civil commitment procedure, see Section 841.001, we held that the legislature's manifest intent regarding such statutory enactment should be rejected only when the challenging party provided "the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil." Id. at 607. Analyzing the statute with regard to the determinative factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644, 660-61 (1963), we held that appellant there had not shown "by clearest proof" that Chapter 841 was punitive in purpose or effect. Id. at 607-08. See also In re Commitment of Morales, 98 S.W.3d 288, 290 (Tex.App.-Beaumont 2003, pet. filed); In re Commitment of Martinez, 98 S.W.3d 373, 374 (Tex.App.-Beaumont 2003, pet. filed); In re Commitment of Michaels, 2003 Tex. App. LEXIS 3115 at *2 (Tex.App.-Beaumont 2003, pet. filed)(not designated for publication); In re Commitment of Corliss, 2003 Tex. App. LEXIS 1633 at *1 (Tex.App.-Beaumont 2003, pet. filed)(memorandum opinion); In re Commitment of Browning, 2003 Tex. App. LEXIS 6922 at ** 11-22 (Tex.App.-Austin 2003, no pet.). Nothing presented by Weeks here causes us to revisit these holdings. Issue one is overruled.
Contention that the trial court should have separately instructed the jury on the inability to control behavior
In his second issue, Weeks contends that the trial court erred in refusing to give the following instruction to the jury: "Do you find beyond a reasonable doubt that Daniel Craig Week (sic) has a serious difficulty in controlling his behavior?" In our previous opinion, In re Commitment of Almaguer, No. 09-02-172 CV, slip op. at ___, 2003 WL ___ (Tex.App.-Beaumont Sept. 25, 2003, no pet. h.), we determined that such an instruction was required by neither the United States Constitution (as interpreted by the United States Supreme Court in Kansas v. Crane ), nor by State law. See also In re Commitment of Shaw, No. 09-02-530 CV, slip op. at ___, 2003 WL ___ (Tex.App.-Beaumont Sept. 25, 2003, no pet. h.). Issue two is overruled.
534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).
Contention that Chapter 841 is unconstitutionally vague and violates the separation of powers
In his third issue, Weeks contends that certain subsections of Section 841.082 are unconstitutionally vague and violate the separation of powers doctrine. He points specifically to the following:
Before entering an order directing a person's outpatient civil commitment, the judge shall impose on the person requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community. The requirements shall include:
requiring the person's participation in a specific course of treatment;
(5) requiring the person to submit to tracking under a particular type of tracking service and to any other appropriate supervision;
any other requirements determined necessary by the judge.
Tex. Health Safety Code Ann. § 841.082 (Vernon 2003).
Weeks contends that subsection (4) is unconstitutionally vague in that it improperly delegates the responsibility of determining the specifics of the treatment to the case manager. He contends that subsection (5) is unconstitutionally vague by prohibiting him from going to certain places or being in certain areas; he is left uncertain as to his expected conduct; and, that the phrase "any other appropriate supervision" is vague and allows enforcement in an unequal and arbitrary manner. He also challenges the constitutionality of subsection (9), both for vagueness and for violating Art. I, Section 1 of the Texas Constitution (separation of powers) on the theory that the legislature has impermissibly delegated its powers to create new criminal laws to the trial judge. In Beasley v. Molett, 95 S.W.3d at 608-09 and In re Commitment of Mullens, 92 S.W.3d 881, 887-88 (Tex.App.-Beaumont 2002, pet. filed), we expressly reject these arguments. Issue three is overruled and the judgment of the trial court is affirmed.