in Re Commitment of Kevin Wayne Edwards

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00575-CV
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IN RE COMMITMENT OF KEVIN WAYNE EDWARDS
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-05-05231-CV
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OPINION
The State of Texas filed a petition to commit appellant Kevin Wayne
Edwards as a sexually violent predator. See Tex. Health & Safety Code Ann. §§
841.001-.151 (West 2010 & Supp. 2013). A jury found that Edwards is a sexually
violent predator, and the trial court signed a final judgment and an order of civil
commitment. In four appellate issues, Edwards challenges the constitutionality of
Chapter 841 of the Texas Health and Safety Code as applied to him, the exclusion
of evidence concerning lack of treatment for his mental illness during civil
commitment, the trial court’s requiring him to testify because he is “an ‘insane’
person[,]” and the trial court’s denial of his motion to have counsel present during
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his post-petition psychiatric examinations. We affirm the trial court’s judgment and
order of civil commitment.
ISSUE ONE
In his first issue, Edwards contends Chapter 841 of the Texas Health and
Safety Code (the SVP statute) is unconstitutional as applied to him. Specifically,
Edwards asserts that because he suffers from schizoaffective disorder, bipolar type,
“application of Chapter 841 to Mr. Edwards clearly is undisguised punishment . . . .”
According to Edwards, the statute is punitive as applied to him because he would
receive no treatment for his mental illness if he were committed under Chapter
841.
We first address the State’s contention that Edwards failed to preserve this
issue for appellate review. In its brief, the State contends that although Edwards
filed a motion with the trial court seeking a declaration that the SVP statute is
unconstitutional as applied to him, Edwards did not obtain a ruling on said motion.
However, the record reflects that Edwards’s counsel argued the motion and
obtained a ruling before trial began. Therefore, we conclude that Edwards
preserved the issue for appellate review. See Tex. R. App. P. 33.1(a).
“Under an ‘as applied’ challenge, the challenging party contends that the
statute, although generally constitutional, operates unconstitutionally as to him or
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her because of the challenging party’s particular circumstances.” In re Commitment
of Fisher, 164 S.W.3d 637, 656 n.17 (Tex. 2005). Therefore, we must evaluate the
statute as it operates in practice against Edwards. See Tex. Mun. League v. Tex.
Workers’ Comp. Comm’n, 74 S.W.3d 377, 381 (Tex. 2002).
In construing the statute and its effect, we consider several factors,
including: the statute’s purpose; the circumstances of the statute’s
enactment; the legislative history; common-law or former statutory
provisions, including laws on the same or similar subjects; a particular
construction’s consequences; administrative construction of the
statute; and the title, preamble[,] and emergency provision.
Id. The party attacking the statute bears the burden of showing that the statute is
unconstitutional. Id.
In enacting Chapter 841 the Legislature found that:
[A] small but extremely dangerous group of sexually violent
predators exists and . . . those predators have a behavioral abnormality
that is not amenable to traditional mental illness treatment modalities
and that makes the predators likely to engage in repeated predatory
acts of sexual violence. The legislature finds that the existing
involuntary commitment provisions of Subtitle C, Title 7, are
inadequate to address the risk of repeated predatory behavior that
sexually violent predators pose to society. The legislature further finds
that treatment modalities for sexually violent predators are different
from the traditional treatment modalities for persons appropriate for
involuntary commitment under Subtitle C, Title 7. Thus, the
legislature finds that a civil commitment procedure for the long-term
supervision and treatment of sexually violent predators is necessary
and in the interest of the state.
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Fisher, 164 S.W.3d at 639-40 (quoting Tex. Health & Safety Code Ann. § 841.001
(West 2010)). “A person committed under the Act has a behavioral abnormality, a
congenital or acquired condition that, by affecting the person’s emotional or
volitional capacity, predisposes the person to commit a sexually violent offense.”
Beasley v. Molett, 95 S.W.3d 590, 607 (Tex. App.—Beaumont 2002, pet. denied)
(citing Tex. Health & Safety Code Ann. §§ 841.002(2), 841.003(a) (West Supp.
2013); Kansas v. Hendricks, 521 U.S. 346, 362-63 (1997)).
As previously discussed, Edwards bore the burden of demonstrating that the
SVP statute operates unconstitutionally as applied to him. See Tex. Mun. League,
74 S.W.3d at 381. Edwards attached to his motion deposition testimony from the
State’s experts, psychiatrist Dr. Sheri Gaines and psychologist Dr. Randall Price,
as well as other documents, including a clinical psychologist’s recommendation
that Edwards be found incompetent to stand trial.1 According to Edwards’s motion,
Gaines testified that Edwards is “100 percent psychotic” and his “thought [is] full
of delusional content, both grandiose and paranoid[.]”
1
Psychologist Dr. Roger Saunders opined as follows in his report: “With
respect to the Outpatient Sexually Violent Predator Treatment Program, [Edwards]
would be disqualified based on the ‘person exhibits an overt and uncontrolled
psychosis’ criterion for admission. With adequate medication therapy however,
Mr. Edwards could be expected to minimally participate in an SOTP program,
however with moderate difficulty. Some accommodations would be needed.”
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In her deposition, Gaines testified that she diagnosed Edwards with
schizoaffective disorder, alcohol abuse, cannabis abuse, sexual abuse of an adult,
sexual abuse of a child, and antisocial personality traits. Gaines also testified in her
deposition that Edwards exhibited some delusional and illogical thinking during
her interview with him. When asked whether she believed Edwards would be able
to complete the sex offender treatment program, Gaines testified, “I work with a lot
of seriously mentally ill people, and I’m a firm believer that everyone has the
ability to benefit from treatment. So I do believe that there’s some treatment out
there that could be helpful for Mr. Edwards. It would need to be customized for
him, however.” Gaines further explained that Edwards would only benefit from
such customized treatment if he were also properly medicated, and he would need
“special guidance.” In addition, Gaines testified that Edwards had previously failed
at sex offender treatment because he committed another sexual offense, and she
opined that he could have reoffended because of his mental status.
Gaines further opined that medication might not make Edwards less likely to
sexually offend because “he’s demonstrated [an] inability to be properly
medicated. . . . [H]e has had access to medical care and he has been treated with
medications and remained psychotic.” According to Gaines, Edwards’s mental
illness is “part of who he is. It’s part of his whole big picture. And it’s a risk factor
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for him. And it does impair his impulse control and make him more likely to be
violent.” When asked during the deposition whether Edwards’s schizoaffective
disorder constituted his behavioral abnormality for purposes of the SVP statute,
Gaines explained, “No. A diagnosis is not a behavioral abnormality. . . .
[S]chizoaffective disorder is something that Mr. Edwards has. It’s one of his
diagnoses, and it does contribute to his behavioral abnormality.” Gaines explained
that Edwards’s antisocial features also contribute to his sexual offending.
In his deposition, Dr. Randall Price testified that during his interview with
Edwards, Edwards’s delusions “intruded on his thinking[,]” but Edwards “didn’t
seem to lose sight of what the evaluation was about.” Price explained that he
diagnosed Edwards with schizoaffective disorder, bipolar type, alcohol use
disorder, and cannabis use disorder. Price stated that although he did not diagnose
Edwards with antisocial personality disorder, Edwards “certainly has a lot of adult
antisocial behavior and attitudes[.]” Price opined that Edwards’s mental illness
“very well could have” been a factor in Edwards’s inability to complete sex
offender treatment.
According to Price, schizoaffective disorder can be controlled with proper
medication. When asked whether Edwards could have avoided committing some of
his offenses if he had been properly medicated, Price explained, “I think it was a
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factor. I think his mental disorder was one factor . . . . [I]f he had been compliant
with the appropriate treatment and not using alcohol or other substances . . . I think
it would have at least reduced the chances of those offenses having occurred.”
Price also opined that “it’s less likely” that Edwards’s denial and lack of empathy
are strongly related to his mental illness. When asked how he differentiated
Edwards’s antisocial features from his mental illness, Price explained, “there is
overlap, but some people with mental illness like his don’t have a criminal history,
don’t engage in criminal conduct, don’t engage in sex offenses. So there’s overlap
there.” Price explained that the congenital or acquired condition Edwards suffers
from is “a constellation of things. The primary part of it is the schizoaffective
disorder, bipolar type, but also involved in that behavior or behavioral abnormality
is a history of substance use problems, antisocial attitudes and behaviors, having
committed two deviant sexual acts, one on a child, one on an adult and then . . . the
non[-]adherence or the lack of compliance with treatment of the schizoaffective
disorder. . . . There can be more than one factor or disorder that comprises that
condition that is defined as a behavioral abnormality. ”
As discussed above, the SVP statute was created specifically to provide a
commitment procedure for an “extremely dangerous group of sexually violent
predators” who “have a behavioral abnormality that is not amenable to traditional
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mental illness treatment modalities and that makes the predators likely to engage in
repeated predatory acts of sexual violence.” Tex. Health & Safety Code Ann. §
841.001. A person committed under Chapter 841 has “a behavioral abnormality, a
congenital or acquired condition that, by affecting the person’s emotional or
volitional capacity, predisposes the person to commit a sexually violent offense.”
Beasley, 95 S.W.3d at 607 (citing Tex. Health & Safety Code Ann. §§ 841.002(2),
841.003(a); Hendricks, 521 U.S. at 362-63)). Edwards’s pretrial motion failed to
demonstrate that because of his schizoaffective disorder, Chapter 841 operated
unconstitutionally as applied to him. See Fisher, 164 S.W.3d at 653-54; Tex. Mun.
League, 74 S.W.3d at 381. Therefore, the trial court did not err by denying his
motion. Accordingly, we overrule issue one.
ISSUE TWO
In his second issue, Edwards argues that the trial court erred by excluding
evidence that a Chapter 841 civil commitment provided no treatment for his mental
illness, while “regular” mental-health civil commitment would provide such
treatment. Specifically, Edwards complains that the trial court permitted Gaines to
testify that “regular” mental health civil commitment did not address sexual
deviance or provide sex offender treatment, but did not permit defense experts to
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testify that Edwards would not receive mental illness treatment if he were
committed under Chapter 841.
“We review a trial court’s evidentiary rulings for abuse of discretion.”
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re
Commitment of Salazar, No. 09-07-345 CV, 2008 WL 4998273, at *2 (Tex.
App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). Error may not be
predicated upon a ruling that excludes evidence unless the party’s substantial rights
are affected. Tex. R. Evid. 103(a). We will not reverse a judgment based on an
error of law unless that error probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting the case to
the appellate court. Tex. R. App. P. 44.1(a).
Gaines testified that she reviewed records pertaining to Edwards and
conducted an interview of Edwards. Gaines opined that Edwards has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Gaines testified that she considered Edwards to be sexually deviant based upon his
two convictions for sexual offenses and his sexually inappropriate statements
during her interview of him. When asked how Edwards’s schizoaffective disorder
relates to his history of sexual offenses, Gaines explained as follows:
I don’t think it’s possible to separate out where the sexual deviance is,
where the schizoaffective disorder begins, where that ends and the
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anti-social traits begin; and it’s not necessary for our purposes here
today. It might be helpful in treatment to try to understand Mr.
Edwards better, to try to direct his treatment in a particular area, but
for our purposes here today, those three things are present in Mr.
Edwards. Those three things feed off of each other, actually make
each other worse and make him have a behavioral abnormality.
Gaines testified that although Edwards had been prescribed various types of
medications, Edwards is still psychotic and his symptoms are “certainly not fully
controlled at this time.” Gaines also explained that Edwards had been “consistently
noncompliant” with respect to taking his medication. According to Gaines,
Edwards’s sexual deviancy, schizoaffective disorder, and antisocial personality
traits “all feed off of each other. They all make the next one worse. . . . So, he’s got
hypersexuality from the schizoaffective disorder; and he’s got no regard for people
from the anti-social personality traits.”
When asked how mental health commitments differed from Chapter 841
commitments, Gaines testified:
A regular civil commitment for mental health treatment under
the Texas statute is when someone is imminently dangerous to
themselves or others or will decompensate to that level if they do not
get treatments and then they go in-patient for the civil commitment
and receive psychiatric treatment. . . . They may go to a psychiatric
hospital . . . with the focus being on medication and getting someone
to the point where they are no longer dangerous to themselves or
others; and when they get to the point where they are no longer
dangerous to themselves or others, then they are released.
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Gaines explained that regular civil commitments for mental health do not address
sexual deviance and do not provide sex offender treatment. During cross-
examination, when Edwards’s counsel asked whether Edwards would receive
treatment for his mental illness during a commitment under Chapter 841, the trial
court sustained the State’s relevancy objection. Gaines opined that Edwards needs
mental health treatment “for a lot of reasons including deviant behavior.”
Clinical psychologist Dr. Roger Saunders, who was called as an expert
witness by Edwards, testified that after interviewing Edwards and reviewing
records, he diagnosed Edwards with “a psychotic disorder[,]” and he explained that
a diagnosis of schizoaffective disorder, bipolar type, is “consistent with the
record.” Saunders explained that psychotic disorder is “recognized as a severe
mental illness.” The trial judge sustained the State’s objection to a question
regarding whether a person who has a major mental illness could complete a sex
offender treatment program. The defense later re-called Saunders to the stand to
make a bill of exceptions. During the bill of exceptions, Saunders opined that
Edwards “would not be capable of participating” in sex offender treatment.
Saunders also opined that without traditional mental health treatment, Edwards
would not be able to participate in sex offender treatment, and that Edwards’s
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mental illness will preclude him from participating in or benefiting from the type
of treatment that would be ordered under Chapter 841.
Edwards also called psychologist Dr. Marisa Mauro to testify as an expert
witness on his behalf. Mauro testified that she evaluated Edwards for behavioral
abnormality and determined that Edwards does not have a behavioral abnormality
that makes him likely to engage in predatory acts of sexual violence. Mauro
testified that “paraphilias are the only conditions that obviously relate to problems
with controlling a sexually deviant behavior[,]” and she testified that she did not
diagnose Edwards with any type of paraphilia. Mauro testified that Edwards’s two
convictions constitute the only evidence that Edwards has a sexually deviant
personality.
Mauro explained that she diagnosed Edwards with schizoaffective disorder,
bipolar type, and that although he does not have antisocial personality, he does
have some antisocial traits. Mauro testified that when she interviewed Edwards, he
was “highly delusional” and “manic.” According to Mauro, “[t]he primary
modality for treatment of schizoaffective disorder is psychiatric medication and
then if the person stabilizes some and is open to working on their thoughts,
feelings, and behaviors at that time in a non-delusional state, therapy as well.”
According to Mauro, Edwards’s schizoaffective disorder affects his emotional
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volitional capacity and is a congenital or acquired condition, but it does not make
him likely to engage in a predatory act of sexual violence. Mauro characterized
Edwards’s risk of sexual re-offense as “low moderate to moderate[.]” The trial
court sustained the State’s relevancy objections to questions that attempted to elicit
from Mauro testimony concerning (1) how the legislative findings in the SVP
statute assist in determining whether someone has a behavioral abnormality, and
(2) the meaning of a person being amenable to traditional mental health treatment
modalities.
Edwards’s counsel later called Mauro to make an offer of proof. During the
offer of proof, Mauro explained that she is familiar with traditional mental health
commitments. Mauro stated that Edwards’s illness is of the type that would lend
itself to traditional mental health commitment, and she explained that the focus of
the treatment would be to ensure that Edwards would no longer be a danger to
himself or others and would no longer have symptoms that interfere with his ability
to care for himself and make rational decisions. Mauro explained that inpatient
mental health commitment takes place in a more secure facility than sexually
violent predator commitment. In addition, Mauro opined that Edwards would not
benefit from sex offender treatment due to his mental illness. Mauro stated that
Edwards’s schizoaffective disorder is amenable to traditional mental health
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treatment. When asked whether sexually violent predator treatment would include
mental health treatment, Mauro testified “[i]t is my understanding that he would
receive treatment for any sexual deviancy, but I do not know if he would receive
any mental health treatments that were not on si[te].” Mauro stated that Edwards
does not need treatment for sexual deviancy, and that Edwards is incapable of
benefitting from such treatment because he is delusional. According to Mauro,
Edwards’s psychosis would disqualify him from treatment under Chapter 841.
Relevant evidence is any evidence that tends to make the existence of a fact
of consequence more or less probable than it would be without the evidence. Tex.
R. Evid. 401. The SVP statute provides that the issue for the jury to determine was
whether Edwards is a repeat sexually violent offender and suffers from a
behavioral abnormality that makes him likely to commit a predatory act of sexual
violence. 2 Tex. Health & Safety Code Ann. § 841.003(a). The relevant inquiry is
whether Edwards’s behavioral abnormality makes him likely to commit a
predatory act of sexual violence. See id. Therefore, the issue of whether Edwards
would receive treatment for his schizoaffective disorder if placed under a “regular”
mental health commitment was not relevant to the issue before the jury, and the
trial court did not abuse its discretion by refusing to admit such evidence. See
2
The trial court granted the State a directed verdict with respect to Edwards’s
status as a repeat sexually violent offender.
14
generally Auld, 34 S.W.3d at 906; Salazar, 2008 WL 4998273, at *2. Furthermore,
even if the trial court had erred by excluding the evidence, Edwards must show that
the trial court’s decision probably caused the rendition of an improper judgment.
See Tex. R. App. P. 44.1(a). The jury heard evidence concerning Edwards’s two
prior sexual offenses, his diagnoses of schizoaffective disorder, antisocial
personality traits, abuse of alcohol and cannabis, problems complying with the
terms of his probation, as well as Edwards’s scores on actuarial instruments. In
light of the totality of the evidence before the jury, we conclude that Edwards has
not demonstrated that the trial court’s decision not to admit the disputed evidence
probably caused the rendition of an improper judgment. See id. We overrule issue
two.
ISSUE THREE
In his third issue, Edwards contends the trial court should not have required
him to testify at trial or by deposition because he is insane and, therefore,
incompetent to testify. Edwards filed a pretrial motion, in which he requested that
he not be required to testify at trial or by deposition due to his alleged insanity. The
trial court overruled the motion and permitted the State to call Edwards as a
witness. During his testimony, Edwards made several delusional statements.
However, Edwards was also able to clearly and coherently testify concerning his
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name, date of birth, current and past TDCJ numbers, and the details of his two
sexual offenses.
Rule 601(a) of the Texas Rules of Evidence states as follows:
(a) General Rule. Every person is competent to be a witness except as
otherwise provided in these rules. The following witnesses shall be
incompetent to testify in any proceeding subject to these rules:
(1) . . . Insane persons who, in the opinion of the court, are in an
insane condition of mind at the time when they are offered as a
witness, or who, in the opinion of the court, were in that
condition when the events happened of which they are called to
testify.
Tex. R. Evid. 601(a)(1). The party attacking a witness’s competency bears the
burden of proving the witness’s incompetency. Handel v. Long Trusts, 757 S.W.2d
848, 854 (Tex. App.—Texarkana 1988, no writ). Witness competency is a
preliminary question for the trial court to determine, and we will not disturb the
trial court’s ruling on appeal unless an abuse of discretion is shown. Tex. R. Evid.
104(a); Solis v. State, 647 S.W.2d 95, 98 (Tex. App.—San Antonio 1983, no writ).
The Texas Rules of Evidence are intended to promote the ascertainment of truth
and just determinations in legal proceedings. Tex. R. Evid. 102. The issue of
competency under Rule 601 pertains to whether a witness has the ability to
perceive the relevant events, recollect the events, and adequately narrate his
recollection. Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th
Dist.] 1989, pet. ref’d) (applying former Texas Rule of Criminal Evidence 601). A
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mental infirmity does not necessarily render a witness incompetent to testify. See
Rodriguez, 772 S.W.2d. at 170 (The testimony of a witness with Alzheimer’s
disease raised “troubling questions,” but the court concluded that her account of
the crime was “lucid and purposeful.”).
As previously discussed, although Edwards made some delusional
statements during his testimony, he was able to testify clearly and coherently
regarding his name, date of birth, current and past TDCJ numbers, and the details
of his two sexual offenses. On this record, we cannot say that the trial court erred
by determining that Edwards was competent to testify. See Tex. R. Evid. 601(a);
Rodriguez, 772 S.W.2d. at 170. Furthermore, Edwards has not demonstrated that
permitting the State to call Edwards as a witness probably caused the rendition of
an improper judgment. See Tex. R. App. P. 44.1(a)(1). For all of these reasons, we
overrule issue three.
ISSUE FOUR
In issue four, Edwards complains of the trial court’s denial of his request to
have an attorney present at the pre-trial expert examination. We have held that
neither the SVP statute nor the Fourteenth Amendment requires that counsel be
present during a psychiatrist’s post-petition examination. See In re Commitment of
Smith, 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet. denied). Edwards
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argues that our holding in Smith was based solely on a concession by Smith that
the SVP statute does not appear to encompass a pre-trial psychiatric examination.
See id. at 806. In Smith, we merely noted that Smith made this concession, and we
did not use this concession to reach our holding. See id. at 804-07. Additionally,
we have upheld our Smith ruling in other cases. See In re Commitment of Speed,
No. 09-13-00488-CV, 2014 Tex. App. LEXIS 4444, at *2 (Tex. App.—Beaumont
Apr. 24, 2014, pet. filed) (mem. op.); see also In re Commitment of Lemmons, No.
09-13-00346-CV, 2014 Tex. App. LEXIS 3888, at **1-2 (Tex. App.—Beaumont
Apr. 10, 2014, pet. filed) (mem. op.). We decline to revisit our ruling in Smith and,
for the reasons discussed in Smith, we overrule issue four. Having overruled each
of Edwards’s appellate issues, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on June 23, 2014
Opinion Delivered September 4, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
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