in Re Commitment of Larry Wayne Fox

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00125-CV
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IN RE COMMITMENT OF LARRY WAYNE FOX
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-07-07145 CV
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MEMORANDUM OPINION
Larry Wayne Fox challenges his civil commitment as a sexually violent
predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &
Supp. 2013) (the SVP statute). In one issue, he maintains that the trial court erred
in denying his motion for summary judgment. We conclude the trial court did not
err in denying the motion, and we affirm the trial court’s judgment.
The State was required to prove beyond a reasonable doubt that Fox is a
sexually violent predator. See id. § 841.062(a) (West 2010). A person is a
“sexually violent predator” subject to commitment if the person: “(1) is a repeat
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sexually violent offender; and (2) suffers from a behavioral abnormality that makes
the person likely to engage in a predatory act of sexual violence.” Id. § 841.003(a)
(West Supp. 2013). A person is a “repeat sexually violent offender” for purposes of
the SVP statute if the person is convicted of more than one sexually violent offense
and a sentence is imposed for at least one of the offenses. Id. § 841.003(b) (West
Supp. 2013). A “sexually violent offense” includes, among other offenses,
indecency with a child and attempted sexual assault. See id. § 841.002(8)(A), (E)
(West Supp. 2013); Tex. Penal Code Ann. §§ 15.01, 21.11, 22.011 (West 2011).
In his only issue on appeal, Fox argues that the trial court committed
reversible error when it denied Fox’s motion for summary judgment. In his motion
for summary judgment, Fox argued that he is not a repeat sexually violent predator,
as defined by section 841.003 of the Texas Health and Safety Code. Fox contends
that his two predicate convictions stem from one criminal occurrence. According
to Fox, other than those two convictions “for the same act,” he has no other
convictions which would meet the statutory requirement of a repeat sexually
violent offender. He contends that “[t]he term ‘repeat sexually violent offender’ by
plain meaning must mean that a person must have committed a sexually violent
offense more than once, which further logically requires a finding of more than one
criminal transaction by that person that results in convictions.” According to Fox,
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“in being charged with both Indecency with a Child and Attempted Sexual Assault
for the same conduct, [his] constitutional protection against double jeopardy was
violated because it amounted to multiple punishments for the same offense.” Fox
claims he cannot be proven to be a “repeat sexually violent offender” because he
should only have one conviction for a sexually violent offense.
We review a trial court’s grant or denial of a motion for summary judgment
de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). The issue of statutory construction is also reviewed de novo. Loaisiga
v. Cerda, 379 S.W.3d 248, 254-55 (Tex. 2012). We give effect to the Texas
Legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). To
prevail on a summary judgment motion, the movant must establish that no genuine
issue of material fact exists and that he is entitled to a judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374,
381 (Tex. 2004). When deciding whether there is a disputed material fact issue
precluding summary judgment, evidence favorable to the non-movant will be taken
as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We
must indulge every reasonable inference in favor of the non-movant and resolve
any doubts in his favor. Id. at 549.
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In Fox’s responses to the State’s requests for admissions which were
admitted into evidence at trial, Fox admitted that he was convicted in 2006 of one
count of indecency with a child and one count of attempted sexual assault, and that
he was currently serving two eight-year sentences for those offenses. He concedes
on appeal that he pleaded guilty to the offenses, and the judgments for the two
convictions (showing he pleaded guilty to the offenses) were admitted at trial. The
convictions are final and have not been set aside.
Fox cannot challenge the facts of his final criminal convictions in a civil
commitment proceeding. See In re Commitment of Dees, No. 09-11-00036-CV,
2011 Tex. App. LEXIS 9807, at *16 (Tex. App.—Beaumont Dec. 15, 2011, pet.
denied) (mem. op.); In re Commitment of Hinkle, No. 09-09-00548-CV, 2011 Tex.
App. LEXIS 4504, at *16 (Tex. App.—Beaumont June 16, 2011, pet. denied)
(mem. op.); see also In re Eeds, 254 S.W.3d 555, 557-58 (Tex. App.—Beaumont
2008, no pet.) (Defendant in SVP proceeding could not attack accuracy of
statement in criminal judgment that conviction was for indecency by contact,
where that judgment had not been reversed, corrected, or set aside.). The existence
of Fox’s prior convictions and sentences for more than one sexually violent offense
was conclusively established at trial, and therefore Fox is a “repeat sexually violent
offender” under the plain language of the statute. See Tex. Health & Safety Code
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Ann. § 841.003(b). The trial court did not err in denying Fox’s motion for
summary judgment. We overrule Fox’s sole issue on appeal and affirm the trial
court’s judgment.
AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on July 7, 2014
Opinion Delivered September 4, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
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