in Re Commitment of Jeffery Brian Chappell ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00130-CV
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IN RE COMMITMENT OF JEFFERY BRIAN CHAPPELL
_______________________________________________________ ______________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-05-05202-CV
________________________________________________________ _____________
MEMORANDUM OPINION
BACKGROUND FACTS
Jeffery Brian Chappell (“Chappell”) appeals from the judgment and order of
civil commitment rendered by the trial court after a jury found Chappell to be a
“sexually violent predator.” See Tex. Health & Safety Code Ann. § 841.001-
841.151 (West 2010 & Supp. 2013) (“the SVP statute”).
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Chappell is a convicted sex offender who is also deaf. 1 The record indicates
that he attended several different schools as a child, that he completed the eighth
grade, that he can read and write the English language, that he can speak some
words on a limited basis, that his preferred means of communication is sign
language, and that his secondary means of communication is by written word.
During each stage of the civil proceeding below, certified sign language
interpreters were utilized at trial to interpret the statements of the trial judge, the
witnesses, and the attorneys, and Chappell was provided his own individual sign
language interpreter to sit with Chappell and assist with communication during the
trial. Furthermore, the trial court granted Chappell’s request for a “real time” court
reporter and transcription of the proceedings.
Chappell raises three issues on appeal. In his first two issues, he challenges
the legal and factual sufficiency of the evidence. In his third issue, he complains
about the trial court’s pretrial ruling that denied his motion to control the pace of
the questions and answers of the witnesses at trial. In his pretrial motion to control
the pace, Chappell requested that the trial court require a pause after each question
and each answer so that he could then use sign language to confer with his
attorney. We affirm.
1
Chappell also lost an arm in an accident when he was nine years old.
2
THE CRIMINAL CONVICTIONS
In 1995, Chappell pleaded guilty to, and was convicted of, three counts of
aggravated sexual assault of two children, B.M. and D.G., both under the age of
fourteen. In Chappell’s responses to Requests for Admissions, Chappell also
admitted to another conviction. For each sexual assault, Chappell received a
twenty-year sentence. In 1995, Chappell was also convicted of indecency with a
child by exposure. At the time of the civil commitment trial, Chappell was serving
his twenty-year sentences for the two aggravated sexual assaults.
THE SVP STATUTE
Alleging that Chappell is a “sexually violent predator,” the State instituted
an involuntary civil commitment proceeding. A person is a “sexually violent
predator” subject to commitment if the person: “(1) is a repeat sexually violent
offender; and (2) suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” Tex. Health & Safety Code
Ann. § 841.003(a) (West 2010). A “behavioral abnormality” is “a congenital or
acquired condition that, by affecting a person’s emotional or volitional capacity,
predisposes the person to commit a sexually violent offense, to the extent that the
person becomes a menace to the health and safety of another person.” Id. §
841.002(2) (West Supp. 2013). “A condition which affects either emotional
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capacity or volitional capacity to the extent a person is predisposed to threaten the
health and safety of others with acts of sexual violence is an abnormality which
causes serious difficulty in behavior control.” In re Commitment of Almaguer, 117
S.W.3d 500, 506 (Tex. App.—Beaumont 2003, pet. denied). The inability to
control behavior “must be sufficient to distinguish the dangerous sexual offender
whose serious mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted in an ordinary
criminal case.” Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d
856 (2002).
SUFFICIENCY OF THE EVIDENCE
In his first two issues, Chappell contends there is legally and factually
insufficient evidence to support “the jury’s verdict that [he] currently suffers from
a ‘condition’ or has serious difficulty controlling his behavior.” See In re
Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.
denied) (legal sufficiency standard of review). We disagree.
Chappell contends Dr. Sheri Gaines, the State’s expert, provided no
scientific basis for her opinion that Chappell currently is displaying symptoms of
pedophilia to the extent he is emotionally or volitionally impaired and likely to
engage in a predatory act of sexual violence. Chappell contends the State failed to
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prove that he is likely to engage in a predatory act for the primary purpose of
victimization, and that the State failed to meet Kansas v. Crane’s requirement that
the State prove that he is more dangerous than the typical recidivist in an ordinary
case. See Crane, 534 U.S. at 413.
To prevail on his legal sufficiency issue, Chappell is required to demonstrate
that no evidence supports the jury’s finding. See Croucher v. Croucher, 660
S.W.2d 55, 58 (Tex. 1983); Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868,
873 (Tex. App.—Beaumont 2007, pet. denied). Under the SVP statute, the State
must prove, beyond a reasonable doubt, that “the person is a sexually violent
predator.” Tex. Health & Safety Code Ann. § 841.062(a) (West 2010). “[T]he
burden of proof at trial necessarily affects appellate review of the evidence.” In the
Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002). Because the SVP statute employs a
beyond-a-reasonable-doubt burden of proof, when reviewing the legal sufficiency
of the evidence, we assess 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. In re
Commitment of Mullens, 92 S.W.3d at 885.
Under a factual sufficiency review, we weigh the evidence to determine
“whether a verdict that is supported by legally sufficient evidence nevertheless
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reflects a risk of injustice that would compel ordering a new trial.” In re
Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet.
denied) (factual sufficiency standard of review). Since the State’s burden of proof
in an SVP case is beyond a reasonable doubt, the risk of injustice is necessarily
slight when the evidence admitted at trial is legally sufficient to support the jury’s
verdict. Id. However, “if in the view of the appellate court after weighing the
evidence, the risk of an injustice remains too great to allow the verdict to stand, the
appellate court may grant the defendant a new trial.” Id.
Chappell testified that he sexually assaulted his live-in girlfriend’s “nine or
ten” year old son, B.M., for over a year. One of the sexual offenses against B.M.
occurred after Chappell attended four to six months of therapy in Houston to deal
with his sexual urges. Chappell also admitted to sexually assaulting D.G., B.M.’s
“eight or nine” year old friend. Chappell further testified he was convicted of
exposing himself to M.M., B.M.’s “[f]ive or six” year old brother. Chappell
acknowledged that in his prior statement to the sheriff’s office he admitted he was
a sex addict and that he had touched ten to fifteen children. During the
commitment trial, Chappell admitted to sexual offenses against several other
children, in addition to those against B.M., M.M., and D.G.
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Nevertheless, Chappell testified he does not believe he is a sex offender or
that he needs sex offender treatment. He admitted to receiving approximately
twenty disciplinary write-ups while he was incarcerated (none for sexual
misconduct). During his testimony before the jury and in interviews with the
State’s expert, Chappell blamed the children and victims for the crimes he
committed.
Dr. Gaines, a forensic psychiatrist, testified for the State. She testified that
Chappell has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. Dr. Gaines diagnosed Chappell with pedophilia
non-exclusive type and sexual deviancy. According to Dr. Gaines, pedophilia is a
“chronic life-long condition” and “[t]here’s no indication that pedophilia is going
to go away.”
Dr. Gaines’s methodology involved an analysis and review of Chappell’s
records and an interview with Chappell. She reviewed his statements and
deposition, details of his offenses, victim and witness statements, expert reports
and depositions, and Chappell’s prison records. Dr. Gaines interviewed Chappell
with the assistance of a sign language interpreter. She testified that she and
Chappell were able to communicate effectively through the interpreter.
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Dr. Gaines identified Chappell’s risk factors for reoffending as follows: he
is sexually deviant; he has had male and female victims; he performed multiple
acts on each of his victims; he committed the sexual acts against his victims over a
minimum of seventeen years; he sexually offended against at least one victim in a
public restroom; he threatened victims and their family members if they reported
the crimes; he “groomed” his victims; he exhibited a lack of genuine remorse; he
never completed a comprehensive sex offender treatment program; he still blames
his victims; and he has had victims outside of his family. Dr. Gaines recognized
that Chappell had some factors that could be interpreted as positive: his age (62
years old), family support, some income upon release from prison, and a history of
some past employment. Nevertheless, Dr. Gaines indicated that such positive
factors did not outweigh all of the other factors or change her opinion that
Chappell currently suffers from a “behavioral abnormality” that makes him “likely
to commit a predatory act of sexual violence.”
Dr. Gaines testified that Chappell does not have an understanding of his
offense cycles and triggers, and without that understanding it is unlikely Chappell
will be able to prevent himself from reoffending. She testified that it was
significant that Chappell continues to allege that he was pressured by the children
to sexually offend against them, which is an indication he would be at a high risk
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for reoffending. Additionally, Dr. Gaines explained that, in determining whether a
person currently has a behavioral abnormality, repetitive and recurrent past
behavior is a good indicator of future behavior.
Testifying for the defense, Dr. Saunders, a forensic psychologist, explained
he had interviewed Chappell and reviewed records to aid in making a
determination as to whether Chappell suffers from a behavioral abnormality. Dr.
Saunders testified at trial that he felt he was generally able to effectively
communicate with Chappell through the use of an interpreter. Saunders diagnosed
Chappell with pedophilic behaviors in the past with dependent personality features.
Dr. Saunders testified that Chappell does not currently have a behavioral
abnormality. Saunders explained he based his opinion on a combination of factors:
there is a low risk of reoffending for someone of Chappell’s age; Chappell
acknowledged that his sexual offenses were wrong; Chappell did not report any
deviant sexual arousal to children; Chappell stated he would avoid reoffending;
and Chappell had a favorable institutional adjustment while he was incarcerated.
Saunders testified that Chappell admitted to the offenses of which he was
convicted, but denied any other sexual offenses. Saunders acknowledged he was
unaware that Chappell previously admitted to having touched at least nine other
children, and if that information was true, it could alter his opinion.
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Dr. Saunders also indicated he could not say for sure that Chappell would
not sexually reoffend in the future and that there is no one test that can definitively
determine whether a person has a behavioral abnormality. Dr. Saunders agreed that
“pedophilia” was a reasonable diagnosis to make and that the multidisciplinary
team diagnosis was also reasonable. He also agreed that past behavior is a good
predictor of future behavior, and that the details of a person’s prior offenses were
important facts in determining whether the person suffers from a behavioral
abnormality. However, he disagreed with Dr. Gaines’s conclusion that Chappell
currently suffers from a behavioral abnormality. Although the experts reached
different conclusions about Chappell, they employed similar, recognized
methodologies.
To the extent Chappell now argues on appeal that Dr. Gaines was not
qualified to give her expert opinion in this case, Chappell did not raise that issue at
trial and in fact conceded to the trial court that he “didn’t actually challenge [Dr.
Gaines’s] qualifications to testify.” Therefore, that issue was not preserved for
appellate review. See Tex. R. App. P. 33.1(a).
Next, the Court rejects Chappell’s argument that the State was required to
establish “victimization” as a separate issue or element. In In re Commitment of
Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681 (Tex. App.—
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Beaumont June 14, 2012, pet. denied) (mem. op.), we explained that the concept of
“victimization” is implicit in the definition of “behavioral abnormality” and
assumes a victim. See Bernard, 2012 Tex. App. LEXIS 4681, at **6-7. We have
previously explained that the “primary purpose of victimization” is not a specified
element in section 841.003. In re Commitment of Simmons, No. 09-09-00478-CV,
2011 Tex. App. LEXIS 4500, at **1-2 & n.1 (Tex. App.—Beaumont June 16,
2011, no pet.) (mem. op.); In re Commitment of Chapa, No. 09-10-00334-CV,
2011 Tex. App. LEXIS 9798, at *11 (Tex. App.—Beaumont Dec. 15, 2011, no
pet.) (mem. op.). As stated by the Texas Supreme Court, “whether a person
‘suffers from a behavioral abnormality that makes the person likely to engage in a
predatory act of sexual violence’ is a single, unified issue.” In re Commitment of
Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133 S. Ct. 2746 (2013)
(quoting Tex. Health & Safety Code Ann. § 841.003(a)(2)).
In our disposition of issues one and two, we conclude the record contains
legally and factually sufficient evidence to support the jury verdict in this case. Dr.
Gaines diagnosed Chappell’s condition and opined that Chappell suffers from a
behavioral abnormality that makes him likely to commit predatory acts of sexual
violence. The jury heard evidence of Chappell’s many risk factors, including, but
not limited to, his repeated sexual offenses, the diagnosis of pedophilia, and his
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continued attempts to blame the children he assaulted. Dr. Gaines’s testimony was
not so conclusory as to be completely lacking in probative value. See In re
Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at
*14 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.).
Furthermore, the jury was entitled to draw reasonable inferences from basic
facts to determine ultimate facts, and to resolve conflicts and contradictions in the
evidence by believing all, part, or none of a witness’s testimony. See Lacour v.
State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000); In re Commitment of Mullens,
92 S.W.3d at 887. Chappell’s difficulty in controlling his behavior can be inferred
from his past behavior, his own testimony, and Dr. Gaines’s testimony. See In re
Commitment of Burnett, 2009 Tex. App. LEXIS 9930, at *13; In re Commitment of
Wilson, No. 09-08-00043-CV, 2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—
Beaumont Aug. 27, 2009, no pet.) (mem. op.). The evidence is sufficient to show
that Chappell’s inability to control his behavior distinguishes him from the “typical
recidivist convicted in an ordinary criminal case.” See Crane, 534 U.S. at 413.
Reviewing all the evidence in the light most favorable to the verdict, a rational jury
could have found, beyond a reasonable doubt, that Chappell is a sexually violent
predator who is likely to commit predatory acts of sexual violence. See In re
Commitment of Mullens, 92 S.W.3d at 887. After weighing the evidence, we
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conclude that the verdict does not reflect a risk of injustice that would compel
ordering a new trial. See In re Commitment of Day, 342 S.W.3d at 213. We
overrule issues one and two, because the evidence is legally and factually sufficient
to support the jury’s verdict.
CONSTITUTIONAL CHALLENGE
In his third and final issue, Chappell argues the trial court erred by denying
Chappell’s pre-trial “Motion to Control or Slow Pace of Trial to Ensure Access to
Attorney and Effective Representation” (hereinafter “motion to control”).
Chappell maintains that the trial court’s denial of the motion to control created a
“constitutional structural error” and violated his right to counsel under the Sixth
Amendment of the United States Constitution and Article I, Section 10 of the
Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. I, § 10.
SVP cases are civil cases. In re Commitment of Fisher, 164 S.W.3d 637, 653
(Tex. 2005). The SVP statute expressly provides that the Office of State Counsel
for Offenders shall represent an indigent respondent in an SVP case, or the trial
court can appoint other counsel if the Office of State Counsel for Offenders is
unable to represent the person. Tex. Health & Safety Code Ann. § 841.005 (West
2010). The right to counsel, contained in the Sixth Amendment of the United
States Constitution and Article I, Section 10 of the Texas Constitution, is not at
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issue in this case and our courts have not yet decided whether a respondent in a
civil commitment proceeding has a “constitutional right to counsel” under the
United States Constitution or the Texas Constitution. 2 It is unnecessary to decide
that issue in this case for the following reasons: the trial court followed the SVP
statute, the State provided Chappell with an attorney from the Office of State
Counsel for Offenders, Chappell has not challenged the statutory provision,
Chappell has not alleged that his counsel was incompetent or inadequate, and he
does not otherwise voice any complaint about his defense. Assuming without
deciding that such “constitutional right to counsel” may exist in the context of this
SVP proceeding, we conclude that Chappell has no basis for his contention that the
denial of the motion to control constituted a denial of his “right to counsel.”
To the extent Chappell contends that the court’s denial of his motion to
control interfered in some unspecified manner with his ability to communicate with
his attorney at the trial, the record does not support his contention. In his argument
2
The constitutional right to counsel has been held to be a fundamental right
of criminal defendants. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963);
Powell v. Alabama, 287 U.S. 45 (1932). But the constitution does not afford the
right to every person in every proceeding. See Turner v. Rogers, 131 S. Ct. 2507,
2515-20 (2011); Lassister v. Dep’t of Social Servs., 452 U.S. 18, 26-31 (1981); see
also Ex parte Gonzales, 945 S.W.2d 830, 836 (Tex. Crim. App. 1997).
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to the trial court, Chappell explained that he wanted a pause and delay after every
question so that he could “then indicate if he need[ed] to communicate with his
attorney for effective assistance of counsel . . . in all phases of trial.” His prayer in
the motion to control asked for the court to grant the motion “to protect his
constitutional right to counsel and order that Respondent have the time to
communicate with his attorney through his interpreter after every question and
answer during the trial.”
Although the trial court denied the motion to control, the trial court granted
Chappell’s motion for appointment of an interpreter during all proceedings,
including trial. Moreover, the record indicates that five American Sign Language
interpreters appeared at the trial, and one of the five interpreters was specifically
assigned to sit with Chappell during the trial and to assist him with communication
with his attorney or to otherwise communicate any concerns. Furthermore, the trial
court granted an order to allow Chappell and his attorney to have real-time
transcription of the trial testimony and proceedings during the trial. Additionally,
the trial court informed Chappell’s counsel at the hearing on the motion to control
that the pace of the trial would be slow enough for Chappell to communicate with
counsel. The trial court advised Chappell that “[if] it starts going too fast, you tell
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me.” Before the trial began, the trial court notified the parties again that Chappell
could “easily take a recess any time it’s needed.”
Despite such instructions, Chappell, his attorney, and his interpreter never
made any objections or complaints during the trial about the actual pace of the
questions or answers. Furthermore, at no time during the trial did Chappell or his
attorney ever complain that Chappell was having difficulty communicating or
understanding the process. Therefore, Chappell has waived this point. See Tex. R.
App. P. 33.1(a).
Nevertheless, even if Chappell had preserved the objection, Rule 611(a) of
the Texas Rules of Evidence provides that “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation effective for the ascertainment
of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.” Tex. R. Evid. 611(a). Based on the record
before us, we conclude that the trial court exercised reasonable control over the
mode and order of interrogation of the witnesses and the presentation of the
evidence at trial.
This is a civil case, not a criminal one. Thus, the criminal rules pertaining to
the accommodation of a deaf defendant are not applicable here. Yet these rules are
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instructive. For example, in criminal proceedings a trial judge is required to
provide an interpreter for a deaf person to interpret “in any language that the deaf
person can understand, including but not limited to sign language.” Tex. Code
Crim. Proc. Ann. art. 38.31(a) (West Supp. 2013). In criminal cases, “the trial court
has a duty to devise a communication solution that provides the particular
defendant with ‘that minimum level’ of understanding that is constitutionally
required.” Linton v. State, 275 S.W.3d 493, 501 (Tex. Crim. App. 2009) (footnote
omitted). Courts have approved methods of communication with a deaf person that
may “include the use of sign language, finger spelling, lip reading, written
communication, or stenographers to provide simultaneous transcriptions, or a
combination of these methods, depending [on] a person’s proficiency in the
different systems of communication.” Id. (footnote omitted). As long as a
translation is true and accurate, it is sufficient. It does not need to be perfect. Id. at
501-02. The Court of Criminal Appeals has stated that “decisions regarding
interpretive services are within the sound discretion of the trial court.” Id. at 503
(footnote omitted).
We hold that the trial court judge did not abuse his discretion in denying the
pretrial motion to control and did not deprive Chappell of his right to access to his
attorney. Accordingly, we overrule issue three. The judgment is affirmed.
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AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on December 13, 2013
Opinion Delivered January 23, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
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