Opinion
No. 08-20-00228-CV
08-08-2022
In re: the COMMITMENT OF Steve JEWELL, Appellant, v. The STATE of Texas, Appellee.
ATTORNEY FOR APPELLANT: Kenneth D. Nash, Office of State Counsel for Offenders, P.O. Box 4005, Huntsville, TX 77342. ATTORNEY FOR THE STATE: Melinda Fletcher, Special Prosecution Unit, 1300 11th Street, Ste. 520, Huntsville, TX 77340.
ATTORNEY FOR APPELLANT: Kenneth D. Nash, Office of State Counsel for Offenders, P.O. Box 4005, Huntsville, TX 77342.
ATTORNEY FOR THE STATE: Melinda Fletcher, Special Prosecution Unit, 1300 11th Street, Ste. 520, Huntsville, TX 77340.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
YVONNE T. RODRIGUEZ, Chief Justice
Appellant, Steve Jewell, appeals the trial court's adjudgment of him as a sexually violent predator and subsequent civil commitment. TEX.HEALTH & SAFETY CODE ANN. §§ 841.003, 841.081. In Issue One, Appellant challenges the sufficiency of the evidence to support he is a sexually violent predator. In Issue Two, Appellant challenges the admission of a written statement in evidence. We affirm.
BACKGROUND
Factual Background
Before the filing of this civil action, Appellant was convicted and sentenced as follows:
Date: May 9, 2000Court: 384th District Court of El Paso County, TexasCase No.: 990D05001Offense: Sexual Assault with a Child, Count I (Committed on 01-01-1995)Sentence: 20 years’ imprisonment
Date: May 9, 2000Court: 384th District Court of El Paso County, TexasCase No.: 990D05001Offense: Indecency with a Child by Sexual Contact, Count III (Committed on 01-01-1995)Sentence: 20 years’ imprisonment
Date: May 9, 2000Court: 384th District Court of El Paso County, TexasCase No.: 990D05001Offense: Indecency with a Child by Sexual Contact, Count IV (Committed on 01-01-1995)Sentence: 20 years’ imprisonment
Date: May 9, 2000Court: 384th District Court of El Paso County, TexasCase No.: 990D05001Offense: Indecency with a Child by Sexual Contact, Count VI (Committed on 01-01-1995)Sentence: 20 years’ imprisonment
Date: November 13, 2000Court: 384th District Court of El Paso County, TexasCase No.: 990D05000
Offense: Indecency with a Child by Sexual Contact (Committed on 01-01-1998) Sentence: 2 years’ imprisonment
The aforementioned are different convictions against three victims—four indecencies with a child by sexual contact and one sexual assault of a child. The three victims were siblings whom Appellant had been living with. The oldest victim was eight years old, and the youngest was five years old. After Appellant's abuse against the child siblings was discovered, Appellant was kicked out of the home and moved in with a grandmother who had a young boy living with her. Appellant then offended the young boy who was between the age of five and six years old. The grandmother discovered the abuse and Appellant was kicked out of the home. It was not until Appellant was arrested for public intoxication in 1999 that his victims spoke out, which subsequently led to his convictions.
At trial for the current suit at hand, the State's forensic psychologist, Jason Dunham PhD., testified to his diagnoses of Appellant. Dr. Dunham evaluated Appellant and diagnosed Appellant with pedophilic disorder—sexually attracted to both boys and girls in exclusive type—and mild intellectual development disorder. Dr. Dunham determined Appellant suffers from a behavioral abnormality that makes him likely to commit predatory acts of sexual violence.
Procedural History
In September 2020, the trial court adjudged Appellant as a sexually violent predator and civilly committed him for sex-offender treatment and supervision. This appeal followed.
DISCUSSION
In Issue One, Appellant argues the evidence was legally insufficient to support beyond a reasonable doubt that he has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. In Issue Two, Appellant argues the trial court erred by admitting an unauthenticated document into evidence. We disagree.
LEGAL SUFFICIENCY
Standard of Review & Applicable Law
We review sexually violent predator civil commitment proceedings for legal sufficiency of the evidence using the appellate standard of review applied in criminal cases. In re Commitment of Short , 521 S.W.3d 908, 911 (Tex.App.—Fort Worth 2017, no pet.). Under the Due Process Clause of the U.S. Constitution, the State is required to prove every element of the crime charged beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The critical inquiry in a legal sufficiency challenge is whether the evidence in the record could reasonably support a conviction of guilt beyond a reasonable doubt. Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
When reviewing the legal sufficiency of the evidence, we must view all the evidence in the light most favorable to the verdict to determine whether any rational juror could have found the defendant guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v. State , 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). A lack of direct evidence is not dispositive on the issue of the defendant's guilt; guilt may be established by circumstantial evidence alone. Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We measure the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State , 303 S.W.3d 331, 333 (Tex.App.—El Paso 2009, no pet.) (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ). A hypothetically correct charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the offense for which the defendant was tried. Malik , 953 S.W.2d at 240. We bear in mind the trier of fact is the sole judge of the weight and credibility of the evidence, and we must presume the fact finder resolved any conflicting inferences in favor of the verdict and we defer to that resolution. Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citing Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ). A reviewing court may not reevaluate the weight and credibility of the evidence or substitute its judgment for that of the fact finder. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Our only task under this standard is to determine whether, based on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Id.
To civilly commit a person as a sexually violent predator, the State must prove the person: (1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. TEX.HEALTH & SAFETY CODE ANN. § 841.003(a).
Appellant contests both elements. According to Appellant, he is only a first -time offender and does not currently have a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. We turn to analyze each element necessary to civilly commit a person as a sexually violent predator.
1. Repeat sexually violent offender
A repeat sexually violent offender is a person who is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses. Id. at § 841.003. Appellant maintains his "concurrent convictions represent his first and only stint in the Texas Department of Criminal Justice." He claims he has no repeated pattern of repetitive sexual offenses and there is no evidence his imprisonment was insufficient to deter him from sexually offending in the future.
Appellant's sexual history includes multiple sexual offenses committed against three siblings. Appellant argues because his multiple sexual violence acts occurred on one occasion and because his sentences ran concurrently, he cannot be a repeat sexually violent offender. Appellant maintains he was not convicted, punished, and then reconvicted; however, we are not dealing with an enhancement punishment. Our sister court in Beaumont has rejected Appellant's argument and held that the definition of repeat sexually violent offender contained in Section 841.003(b) is not ambiguous and "does not indicate that the offenses must have occurred in a certain sequence, or that they must have occurred on different days." In re Commitment of Hall , No. 09-09-00387-CV, 2010 WL 3910365, at *3 (Tex.App.—Beaumont Oct. 7, 2010, no pet.)(mem. op.).
At trial, evidence of Appellant's convictions was admitted—four convictions and sentences for indecency with a child by sexual contact and one conviction and sentence for sexual assault of a child. Under the Texas Penal Code, these are sexually violent offenses. TEX.PENAL CODE ANN. §§ 21.11(a)(1), 22.011. Accordingly, Appellant is a repeat sexually violent offender as statutorily defined.
2. Behavioral abnormality that makes him likely to engage in a predatory act of sexual violence Appellant argues there was no evidence to support Appellant currently has a behavioral abnormality beyond a reasonable doubt. At trial, Dr. Dunham testified that per his evaluation of Appellant, Appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Dr. Dunham testified at great length as to how he came to this determination. Dr. Dunham performed an "elaborate risk assessment" of Appellant in which certain risk factors were assessed. Dr. Dunham found the risk factor categories of sexual deviancy and antisocial orientation in Appellant, and also testified that Appellant tested heavily towards the life stability and dynamic factors. In addition, Dr. Dunham testified he relied on Appellant's criminal history as evidence of sexual deviance, which included multiple convictions against three victims. Dr. Dunham testified in detail as to exactly how Appellant sexually abused each victim, which occurred multiple times over a three-year period. In addition, Dr. Dunham revealed Appellant has unadjudicated victims; Dr. Dunham also took these multiple instances of sexual abuse against the unadjudicated victims into account during his diagnoses of Appellant.
According to Dr. Dunham, Appellant had no empathy or remorse towards the victims. Dr. Dunham also considered it significant that after Appellant was kicked out of his previous living arrangement for the abuse he committed, Appellant offended again against another young boy who lived in the new home Appellant moved into. In Dr. Dunham's words, "It's significant that [Appellant] put himself in almost the same type of environment right after he left. He was kicked out of one house, and then he went to another situation ... and within the year he was offending against [another child victim]." Appellant was also an elevated risk of reoffending because his deviancy includes the act of exposing himself. In all, Dr. Dunham's testimony was sufficient to establish Appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
When viewed in a light most favorable to the verdict, a rational fact finder could have found, beyond a reasonable doubt, that Appellant is a repeat sexually violent predator who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The evidence is legally sufficient. Issue One is overruled.
ADMISSION OF EVIDENCE
Standard of Review
We review the trial court's admission or exclusion of evidence for an abuse of discretion. In re Commitment of Hull , No. 13-17-00378-CV, 2019 WL 3241883, at *8 (Tex.App.—Corpus Christi July 18, 2019, pet. denied). An abuse of discretion occurs when a trial court fails to follow guiding rules and principles. Id. Reversal is warranted only if the error probably resulted in the rendition of an improper judgment. Id. In making this determination, we evaluate the entire case, considering the role the evidence played in the context of the trial. Id.
A piece of evidence's authenticity is a prerequisite to admissibility. United Rentals, Inc. v. Smith , 445 S.W.3d 808, 813 (Tex.App.—El Paso 2014, no pet.). Texas Rule of Evidence 901 states the authentication requirement is satisfied by "evidence sufficient to support a finding that the item is what the proponent claims[.]" TEX.R.EVID. 901(a). "[T]he predicate for admissibility under rule 901 may be proven by circumstantial evidence." Smith , 445 S.W.3d at 813 (citing Sanchez v. Tex. State Bd. of Med. Exam'rs , 229 S.W.3d 498, 509 (Tex.App.—Austin 2007, no pet.) ). "A document is considered authentic if a sponsoring witness vouches for its authenticity or if the document meets the requirements of self-authentication" set out in Rule 902. Smith , 445 S.W.3d at 813 (citing Castro v. Sebesta , 808 S.W.2d 189, 195 (Tex.App.—Houston [1st Dist.] 1991, no writ) (op. on reh'g)). Testimony of a witness with knowledge is only one of any number of ways to prove authenticity. TEX.R.EVID. 901(b).
Analysis
During the direct examination of Appellant, the State introduced Exhibit 2—"Voluntary Statement of Accused," dated October 15, 1999. When asked whether he recognized the statement, Appellant claimed he did not. Appellant thereafter denied giving the statement and claimed the signature on the statement was not his. The trial court asked whether the statement had been admitted during the course of Appellant's prior trial, and the State confirmed it had been admitted as an exhibit during both the trial phase and the punishment phase, in which a hearing was held to authenticate the document. The trial court overruled defense counsel's authentication objection and admitted the statement.
Appellant maintains he clearly and plainly denied the signature on the statement, and it was thus incumbent on the State to provide independent evidence establishing the document's authenticity. Appellant argues statements read from the document such as "I know that I like the thought about [kids] being innocent and I would like to be the person to take their innocence away from them" and "I would not let a little kid touch me but if I had the opportunity, I would perform oral sex on a little kid[ ]" permeated Appellant's testimony. According to Appellant, the State failed to do its diligence in properly presenting evidence for admission.
After the admission of the statement, the State read aloud multiple pieces of the statement without objection from defense counsel. The State used and referenced the statement multiple times:
So do you see here, Mr. Jewell, in this paragraph -- can you read it? I'm going to point out where I want you to.
You said, ‘I lived there in the garage for about two years. There were two little girls that came around the garage often. These two little girls were between 9, 10 years old. I wasn't really sexually aroused by them at first. They had a friend who was about 14 years old. I was sexually aroused by her.’
...
Mr. Jewell, we've talked a bit about your statement. In your statement you told the police that you don't know what about little kids arouses you. Do you remember that?
...
You said in your statement that ‘I know that I like the thought of them’ -- being kids – ‘being innocent. I would like to be the person to take their innocence away from them.’
...
You also said in the statement that you would not let a kid touch you but, if you had an opportunity, you would perform oral sex on a little kid?
The general rule is error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Volkswagen of Am., Inc. v. Ramirez , 159 S.W.3d 897, 907 (Tex. 2004). We find this to be the case here. After the document's admission, the same evidence was subsequently introduced multiple times without objection. Any error, if any, in the admission of the statement is therefore harmless. Issue Two is overruled.
CONCLUSION
For these reasons, we affirm.