in Re Commitment of Jason Franz Schoenfeld ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00320-CV
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IN RE COMMITMENT OF JASON FRANZ SCHOENFELD
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-10-10526 CV
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MEMORANDUM OPINION
Jason Franz Schoenfeld appeals from an order of commitment, rendered
following a trial in which the jury found Schoenfeld to be a sexually violent
predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &
Supp. 2013) (SVP statute). In one appellate issue, Schoenfeld contends that he was
denied the assistance of counsel at a post-petition psychiatric examination, an
examination conducted by the State’s expert. Because Schoenfeld was not entitled
to have counsel present when being examined by the State’s expert, a physician,
we affirm the trial court’s judgment.
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In October 2012 the State filed a petition alleging that Schoenfeld is a
sexually violent predator and seeking his civil commitment. Schoenfeld then asked
the trial court to appoint counsel to represent him, and the trial court appointed an
attorney with the office of State Counsel for Offenders to do so. Schoenfeld’s
attorney filed an original answer, and the State filed a motion asking that the trial
court require Schoenfeld to undergo an examination by an expert. By order, the
trial court authorized the State’s expert to examine Schoenfeld in a manner
“[c]onsistent with Texas Health and Safety Code § 841 specifications[.]” See id. §
841.061(c), (f) (West 2010). On the same day that the trial court ordered the
examination, Schoenfeld’s attorney filed a document that asserts that Schoenfeld
had a right to have counsel present during the examination. Subsequently, the trial
court signed an order denying Schoenfeld’s request to have counsel present during
the examination. The record shows that in December 2012, the State’s expert, Dr.
Sheri Gaines, examined Schoenfeld, as had been authorized by the trial court’s
order. During Schoenfeld’s trial, she testified about the examination and the role
that it played in her risk assessment and evaluation.
In a series of cases decided after Schoenfeld filed his brief, we have rejected
the same claims that Schoenfeld raises in his sole issue. For example, in In re
Commitment of Smith, we observed that “neither the SVP statute nor the
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Fourteenth Amendment require that counsel be present during a psychiatrist’s post-
petition examination.” 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet.
denied); see In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL
2931852, at *4 (Tex. App.—Beaumont June 26, 2014, no pet. h.) (mem. op); In re
Commitment of Cardenas, No. 09-13-00484-CV, 2014 WL 2616972, at *4 (Tex.
App.—Beaumont June 12, 2014, no pet. h.) (mem. op.); In re Commitment of
Muzzy, No. 09-13-00496-CV, 2014 WL 1778254, at *1 (Tex. App.—Beaumont
May 1, 2014, pet. denied) (mem. op.); In re Commitment of Speed, No. 09-13-
00488-CV, 2014 WL 1663361, at *1 (Tex. App.—Beaumont Apr. 24, 2014, pet.
filed) (mem. op.); In re Commitment of Lemmons, 09-13-00346-CV, 2014 WL
1400671, at *1 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.); see
also In re Commitment of Letkiewicz, No. 01-13-00919-CV, 2014 WL 2809819, at
*11 n.4 (Tex. App.—Houston [1st Dist.] June 19, 2014, no pet. h.) (mem. op.).
Schoenfeld argues that the examination authorized by section 841.061(c) of
the Texas Health and Safety Code is a “‘stage’” of the proceeding that occurs after
the right to counsel attaches under the provisions of section 841.144(a). See Tex.
Health & Safety Code Ann. §§ 841.061(c), 841.144(a) (West 2010). However, in a
reply brief that Schoenfeld filed in his appeal, he concedes that “[t]he assistance of
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counsel during the adversarial mental health evaluation does not necessitate the
actual physical presence of counsel in the interview room.”
In this case, the record shows that the trial court appointed counsel to
represent Schoenfeld well before the examination occurred. In his brief,
Schoenfeld does not argue that the trial court’s ruling prevented counsel from
providing adequate advice or from protecting Schoenfeld’s rights. See Smith, 422
S.W.3d at 805. Schoenfeld and Dr. Gaines were both deposed before trial, and had
there been issues related to Dr. Gaines’s examination, the parties could have
developed them then. Additionally, Schoenfeld’s brief does not explain why any
concerns about the information that Dr. Gaines obtained when she examined
Schoenfeld could not adequately be addressed in motions or objections that he
filed either before or during trial. See id. at 806-07. The record does not support
Schoenfeld’s claim that he was deprived of the assistance of counsel. We overrule
Schoenfeld’s sole issue and affirm the trial court’s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on April 30, 2014
Opinion Delivered September 4, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
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