in Re: The Commitment of Patrick Michaels ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-02-317 CV ____________________

IN RE THE COMMITMENT OF PATRICK MICHAELS

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 01-08-05081-CV

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MEMORANDUM OPINION  

The State of Texas filed a petition to civilly commit Patrick Michaels as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001- 841.147 (Vernon Supp. 2003). A jury found that Michaels suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment from which Michaels appeals. Michaels raises five issues.

In his first issue, Michaels argues the Texas sexually violent predator statute is unconstitutional because it is punitive in nature and violates basic constitutional safeguards. We have recently considered and rejected the arguments made in support of Michaels' position. See Beasley v. Molett, 95 S.W.3d 590 (Tex. App.--Beaumont 2002, pet. filed); In re the Commitment of Mullens, 92 S.W.3d 881, 883-84 (Tex. App.--Beaumont 2002, no pet. h.). Issue one is overruled.

Issue two alleges the State did not satisfy the requirements of due process by failing to prove that Michaels has serious difficulty controlling his behavior. The State contends Michaels failed to preserve the issue for appellate review. In paragraph six of the motion for new trial, Michaels claimed the evidence is legally and factually insufficient to support the jury's finding. The jury found Michaels suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The requirement of Crane that "there must be proof of serious difficulty in controlling behavior" is a component of the criterion that there be some "mental abnormality" or "personality disorder." Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Accordingly, we find that Michaels' issue on appeal is fairly said to be included in the motion for new trial and thus preserved for our review. We must therefore determine whether a rational factfinder could have found beyond a reasonable doubt that Michaels has serious difficulty in controlling his behavior. See Mullens, 92 S.W.3d at 885.

Michaels contends the record is "totally devoid" of any evidence that he lacks volitional control. Dr. Rahn Bailey testified he evaluated Michaels and diagnosed pedophilia. It was his opinion that Michaels has a behavior abnormality that makes him likely to engage in predatory acts of sexual violence. Dr. Bailey performed several psychological tests on Michaels. The results placed him at an 88 percent chance to reoffend. Michaels' records indicated multiple offenses, offenses against individuals of different ages, and behaviors likely to bring him into contact with others for the purpose of victimization - victimization of children over an extended period of time or of an individual over an extended period of time. Michaels' victims were male, which placed him at a higher risk of recidivating. Dr. Bailey testified that a person's behavior while on conditional release can be indicative of a higher risk for recidivism. Michaels' conditional release was revoked when he committed another sexual offense. Dr. Bailey saw evidence of "grooming." Dr. Bailey testified that it was his opinion Michaels would have difficulty controlling his urges. Accordingly to Dr. Bailey, Michaels "is an individual who . . . has seen some difficulty monitoring or modifying or limiting those type urges in the past." Bailey further testified Michaels' violations of conditional release increased the likelihood that he would have more difficulty than the average person controlling those type urges.

Dr. Bailey testified he had reason to believe Michaels has a substance abuse problem. According to Dr. Bailey, excessive use or an inability to adequately control use of alcohol or chemicals is a factor that increases the likelihood an individual will recidivate. Dr. Bailey testified Michaels' use was excessive, which could clearly put him at a greater risk of impulsivity and poor behavioral control.

Dr. Windel Dickerson's deposition testimony was read into the record. Dr. Dickerson also diagnosed Michaels as a pedophile and found him at high risk for reoffending. It was Dr. Dickerson's opinion that Michaels had substantial alcohol use in the past and use of illegal street drugs. Dr. Dickerson believed Michaels was at risk for abusing drugs when released from prison and that increased the likelihood he would reoffend.

Michaels' deposition was admitted into evidence. At his deposition, Michaels testified to four convictions for indecency with a child. Michaels used the term "relationship" regarding one of those offenses. Michaels denied he was a pedophile and admitted he had not received any treatment.

The jury may draw reasonable inferences from basic facts to ultimate facts. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). Michaels' lack of volitional control can be reasonably inferred from his past behavior, reoffending while on conditional release, and substance abuse. Further, Dr. Bailey testified that Michaels lacked had difficulty controlling his urges. Viewing the evidence in the light most favorable to the verdict, we find that a rational factfinder could have found beyond a reasonable doubt that Michaels has serious difficulty in controlling his behavior. Issue two is overruled.

Issue three contends the SVP statute and the concomitant "Final Judgment and Order of Commitment" are unconstitutional. Michaels argues sections 841.082(a)(4), (5), and (9) of the Health and Safety Code are unconstitutionally vague. See Tex. Health & Safety Code Ann. §§ 841.082(a)(4), (5), (9) (Vernon Supp. 2003). This argument has been recently rejected in Mullens, 92 S.W.3d at 887-88. Issue three is overruled.

Michaels contends in issue four his Fifth Amendment privilege against self-incrimination was violated when the court ordered him to submit to polygraph examinations as a condition of civil commitment. We rejected this argument in Beasley, 95 S.W.3d at 610, and again in Mullens, 92 S.W.3d at 888. Issue four is overruled.

Michaels' final issue claims his Fifth Amendment privilege against self-incrimination was violated when the trial court permitted Dr. Bailey to reveal facts obtained from him during an interview and when the trial court admitted Michaels' deposition into evidence. In his brief, Michaels notes he filed a motion to exclude evidence which the trial court denied. However, the brief contains no reference to the record wherein counsel objected to the evidence when it was introduced. See Tex. R. App. P. 38.1(h). Accordingly, nothing is presented for our review. See Tex. R. App. P. 33.1. Issue five is overruled.

The judgment of the trial court is AFFIRMED.

PER CURIAM

Submitted on March 31, 2003

Opinion Delivered April 10, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.