Affirmed and Opinion Filed October 10, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-00969-CR PAUL HARVEY ANDREWS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-11-49282-T 

### MEMORANDUM OPINION

Before Justices Francis and Myers 1 Opinion by Justice Francis The trial court convicted Paul Harvey Andr ews of violating the terms of his civil commitment, found two enhancement paragraphs tr ue, and assessed punishment at life in prison. In two issues, appellant contends the trial c ourt erred by refusing to quash the enhancement paragraphs of the indictment and by impos ing cruel and unusual punishment. We affirm. In 1985, appellant was convicted on separate ch arges of aggravated sexual assault of a child, and punishment was assessed and 75 year s and 55 years in pris on. In February 2010, before appellant was released from prison, the Stat e filed an original peti tion to commit appellant

1 Justice David Lewis was a member of the original panel and partic ipated in the submission of this case, but he did not particip ate in the issuance of the opinion. See T EX
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. P. 41.1(b).–2– under the Civil Commitment of Sexually Violent Predators Act (the Act). See T EX
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. §§ 841.001–.150 (West 2010 & Supp. 2013). The Act provides for the involuntary civil commitment, by m eans of outpatient treatment a nd supervision, of a repeat sexual offender who is found to be a sexually violent predator. Id . §§ 841.003(a), 841.081(a). A person is a sexually violent predator under the Ac t if the person is a repeat sexually violent offender and suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence. Id . § 841.003(a). A person is a repeat sexually violent offender under the Act if he is c onvicted of more than one sexually violent offe nse and a sentence is imposed for at least one of the offenses. See id . § 841.003(b). In accordance with the Act, the petition to commit appellant was filed in Montgomery County, Texas. See id . § 841.041(a) (setting venue in Montgomery County district court, not family court, for petition alleging predator status). On the day the case was set for trial, appellant told the trial judge he wanted to enter an ag reed judgment and order of commitment. After determining that appellant had read the documents , had his attorney explain them to him, and understood them, the trial judge signed both docum ents. The agreed final judgment recited that appellant’s “counsel declared that [appellant ] is convinced beyond a reasonable doubt that [appellant] is a sexually violent pr edator” and “so stipulates.” Fu rther, the judgment recited that appellant agreed to civil commitment. The judg ment adjudged appellant as a sexually violent predator and ordered that he be committed for outpatient treatment and supervision until he “is no longer likely to engage in a predatory act of sexual violence[ .]” In accordance with the judgment and order, appellant was placed in a halfway house in Dallas in March 2011 after he was released from prison. In November 2011, appellant was unsuccessfully discharged from the program and was subsequently indicted on a char ge of violating the terms of his civil commitment. The–3– indictment alleged appellant intentionally and knowingly failed to (1) take prescribed medication, (2) comply with the requirements of his global positioning satellite monitoring system, and (3) complete the requirements of the Outpatient Sexually Violent Predator Treatment Program. In addition, the indictment contained two e nhancement paragraphs alleging prior felony convictions for aggravated sexua l assault in 1985 and aggravated kidnapping in 1975. Violating the terms of a civil comm itment is a third-degree felony. See T EX
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. § 841.085(b) (West 2010). The enha ncement paragraphs, however, increased the punishment range from a third-degree fe lony to twenty-five years to life in prison.
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. § 12.42(d). Appellant filed a motion to quash the indict ment’s enhancement paragraphs, arguing the civil petition alleging he was a sexually violent predator was based on his convictions for the same conduct set out in the enhancement paragra phs. Evidence presented at the hearing on the motion showed that appellant had six different convictions resulti ng in two separate trips to the penitentiary. The trial court denied the motion. At trial, the State presented evidence of a ppellant’s various viola tions during his civil commitment. Among other things, appellant twi ce walked out of counseling. The first time, appellant was meeting with his counselor, B ill Bruner, for individual counseling, became agitated, and said he did not want treatment. He then walked out but returned a minute later and said he “just needed to vent.” A month la ter, however, appellant left group therapy while members were confronting him about his “thi nking errors.” Appellant stood up, said his “goodbyes,” and walked out. Twenty minutes late r, he was found on the back porch. He told Bruner he no longer wanted to participate in the therapy program and then put his statement in writing. At that point, Bruner said there was no option but to unsuccessfully discharge appellant–4– from treatment for refusing to participate. The trial court found appellant guilty of violating the terms of his civil commitment and, after hearing punishment evidence, assessed a life sentence. In his first issue, appellant argues the trial court erred in refusing to quash the enhancement paragraphs because the offenses alleged for enhancement were also used to obtain the civil commitment order. Within his issu e, he acknowledges this Court’s opinion in Jones v.
State , 333 S.W.3d 615 (Tex. App.—Dallas 2009, pet. ref’d) , is “directly on point.” Nevertheless, he contends the opinion should be overruled as “wrongly decided.”
In Jones , the enhancement paragra ph in the indictment alleged a prior conviction for indecency with a child. Jones asserted this c onviction was among the nineteen prior convictions introduced as evidence at the civil commitment trial to support the jury’s finding he was a sexually violent predator. Jones , 333 S.W.3d at 624. Consequently, Jones complained it could not be used to enhance his punish ment at his trial for violating the civil commitment order. Id

. As in this case, Jones argued that the use of a prior conviction to prove an essential element of the offense bars the subsequent use of that prior conviction, in the same indictment, for enhancement purposes. Id. We rejected Jones’s argument, agreeing with th e State that the prior convictions were not an essential element of the charged offense; it was only Jones’s status as a person under a commitment order that needed to be proved. Id . We concluded the Stat e “was not required to re-prove the offenses that originally suppor ted commitment: the commitment order is not subject to collateral attack in a proceeding involvi ng violation of its terms.” Id. Moreover, we concluded the record did not indicate which specific convict ions were relied upon in the commitment proceeding, so even if different convictions were required, no error was shown. “Whichever two convictions were used by that c ourt to establish Jones’s status, the remaining seventeen convictions were availa ble for enhancement purposes.” Id

.–5– We decline appellant’s invitation to overrule Jones . Moreover, we note, as did Jones, that even if the State were required to enhance appellant’s punishment with different felony convictions than those used to esta blish his status as a repeat sexua lly violent predator at the civil trial, no error is shown. The r ecord here does not establish whic h convictions were relied upon in the commitment proceeding. The commitment petition alleged appellant was a “sexually violent predator” and listed five prior convictions, incl uding the two priors used for enhancement in this case. On the day of trial, however, appellant waived his right to jury trial and said he wanted to enter an agreed final judgment a nd an agreed order of commitment. Appellant represented he had read both documents, and his a ttorney had explained th e contents of both to him. No evidence was presented. Thereafter, th e trial court rendered an agreed judgment that appellant was a sexually violent pred ator as defined under the statute. By agreeing to the civil judgment and order of commitment, appellant judicially admitted he is a sexually violent predator under the statute in that he ha d more than one prior conviction for a sexually violent offense. Appellant did not specify which of his five convictions satisfied the statute nor did the trial cour t make any inquiry in this area. Under these circumstances, we conclude appellant has not shown the convictions used to enhance his sentence in this case were not one of the three available for such purpose. We overrule the first issue. In his second issue, appellant argues a li fe sentence for violating “administrative conditions” of his civil commitment constitu tes cruel and unusual punishment. Appellant preserved his complaint in a motion for new trial. The Eighth Amendment to the United States Co nstitution, as applied to the states through the Fourteenth Amendment, prohibits cruel and unusual punishment a nd requires a criminal sentence to be proportionate to the crime committed. See U.S. C ONST . amend. VIII; Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref'd). Even when a sentence is–6– within the range permitted by law, a sentence may in rare instan ces be dispropor tionate to the gravity of the offense. See Ex parte Chavez , 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (“Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-disproportionality review, a puni shment that falls with in the legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.”) In determining whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime, we begin by comparing the gravity of the offense and the severity of the sentence. Graham v. Florida , 560 U.S. 48, 60 (2010) (citing Hamelin v. Michigan , 501 U.S. 957, 1005) (Kennedy, J., concurring)). We c onsider the sentence imposed in light of the offender’s adjudicated and unadjudicated offenses. Culton v. State , 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 2002, pet, ref’d). In th e rare cases in which this comparison leads to an inference of gross disproportionality, we then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. Graham , 560 U.S. at 60. Generally, punishment assessed within statutory limits, including punishment enha nced under a habitual o ffender statute, is not excessive, cruel, or unusual. See Rummell v. Estelle , 445 U.S. 263, 284 (1980) (“[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at some point in the life of one of repeatedly commits criminal offens es serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.”); see also Lackey , 881 S.W.2d at 421 (explaining defendant’s “extensive criminal record” demonstrated “a pronounced and prolonged inability to bring her conduct within the social norm s prescribed” by Texas criminal laws, leading to conclusion that thirty-five-year sentence not grossly dispr oportionate to crime of theft of property valu ed at $750 or less).–7– Here, appellant was charged with the third-degr ee felony offense of violating the terms of his civil commitment. The indictment allege d two prior felony convictions, which enhanced appellant’s punishment range from a third-degree felony to “life, or for any term of not more than 99 years or less than 25 years.” T EX
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. § 12.42(d). Thus, appellant’s enhanced sentence of life in prison falls with in the range allowed by law. Nevertheless, appellant argues the “nature of the crime” did not warrant a life sentence because “the case did not involve any activity that put so ciety at risk.” Specifically, he focuses solely on his conduct in violating the terms of his civil commitment an d ignores the purpose and reason behind his civil commitment as well as his overall criminal history. The trial court heard testimony from Kory Levingston and Bruner, appellant’s case manager and counselor at the halfway house. Levingston said appellant is among the small percentage of sex offenders who have been determ ined to be repeat sexually violent predators, between seventy-five and ninety in Texas. Levingston said he ha d supervised about thirty people in the sexually violent predator program, and appella nt was “near the top of the list in terms of . . . deviancy.” In fact, he said appellant was the “most dangerous person” he had ever supervised. The halfway house where appellant was housed was not a lock-down facility. Food, clothing, and transportation was pr ovided to the parolees or offe nders housed there. Strict guidelines were in place to maintain order. Th e treatment and supervision appellant received at the halfway house were gear ed to predators with a behavioral a bnormality that is not amenable to traditional mental illness treatment modalities. See T EX
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. § 841.001. The goal for appellant was to not have another victim. Bruner was appellant’s counselor . He testified he was init ially “impressed” with “how well” appellant took responsibility for his crim es, explaining that appe llant wrote “a rather descriptive paragraph” of each offense. As th e treatment went on, however, Bruner began to–8– believe that appellant’s openness had more to do with “criminal pride.” He thought appellant may have been getting “vicarious enjoyment” out of re-living th e offenses and lacked empathy for his victims. He said appellant was upset a bout his civil commitment, did not like the rules, and was “always borderline” as to whether he was going to commit to the program. Appellant did not want to look at his offe nses as “anything other than wh at he called a sex addiction,” which Bruner said was “quite a problem” in treat ment. Rather than s eeing his offenses as “predatory acts with violence,” appellant mini mized what he did as “something over which he had no control.” According to Br uner, appellant had indicated to him that he had been cured, “so all the things I tried to teach him, things like how to avoid high-risk situations, how to avoid things that could make him more likely to re-offend, he didn’t seem to be willing to consider.” Bruner said appellant’s crimes “were the most heinous probably of anybody that I have worked with” and said it was “understandable” as to why he was placed on civil commitment. In addition to the testimony of Levingston and Bruner regarding his civil commitment, other evidence detailed appellant’s sexually violen t criminal history. Appellant had six prior felony convictions, beginning with four convicti ons in 1975, two for sexual abuse of a child and two for aggravated kidnapping. All of the offens es involved crimes against children he did not know. In the first offense, in May 1974, appellan t saw three children fishing at a pond––two girls, age 7, and a ten-year-old boy. Appellant took one of the girls and told the other two to turn around and not make any noise. He removed the gi rl’s clothes, fondled her vagina, and forced her to perform oral sex on him until he ejaculate d. Three months later, he was driving down a road and saw a girl and boy, both about ten or tw elve years old, enter a vacant house. He raped the girl at knifepoi nt and had the boy turn so th at he could not watch. Th ree months after that, he was driving at night and picked up two fourteen-yea r-old girls. He pu lled out a knife and–9– intended to rape them, but they escaped. The fo llowing month, he forced a seven-year-old girl into his car, drove her to a secl uded area, told her he had a knife, and forced her to undress. He forced the child to perform oral sex on him. Afterwards, he return ed her to the same neighborhood from which he kidnapped her. A ppellant pleaded guilty and was given twentyyear, concurrent sentences for these offenses and was released from prison in October 1983. Less than two months later, in December 1983, he saw a young boy, about five years old, and his eleven-year-old sister at a park near a creek. He lured them to a drainage area out of sight. He grabbed the girl and told her to remove her pants. When she screamed, he pulled out a screwdriver and threatened to stab her. He to ld her brother to turn around, and he licked the girl’s vagina and forced his penis in he r mouth. The younger brother began yelling, and appellant ran off. Six months la ter, in May 1984, he was riding his motorcycle in a field when he saw a fifteen-year-old girl. He grabbed her br east and put a knife to her throat and demanded oral sex. When she refused, he slapped her and forced her to perform oral sex on him until he ejaculated in her mouth. He was arrested in February 1985 after exposing himself to a van of preschool children outside a library. He pleaded guilty to the December 1983 and May 1984 offenses and received sentences of 75 and 55 years. He was imprisoned on these offenses, awaiting release, when the State fi led the civil commitment petition. Appellant’s extensive criminal record, wh ich involves predatory sex crimes against children, shows a “pro nounced and prolonged inability” to bri ng his conduct within social norms prescribed by our laws. See Lackey , 881 S.W.2d at 422. Although he has not committed a sexual offense in thirty years, he has also been imprisoned duri ng that time and has not had the opportunity. While being treated during his civil commitment, appe llant was not willing to apply the therapeutic methods that Brune r taught to help avoid high-risk situations because appellant believed he was “cured” of his “sex addiction.” Ultimately, he walked out of counseling and told–10– Bruner he no longer wanted to participate in ther apy. Given appellant’s refusal to accept therapy and refusal to accept responsibility for his acts, the trial court could have believed appellant would continue to pose a great da nger to the public, and in partic ular, children. Having reviewed the evidence, we cannot conclude appellant’s lif e sentence is grossly disproportionate. We overrule the second issue. We affirm the trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
PAUL HARVEY ANDREWS, Appellant
No. 05-13-00969-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F-11-49282-T. Opinion delivered by Justice Francis with Justices Myers participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered October 10, 2014