1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________

NO . 09
- 13
- 00539
- CV

____________________ IN RE COMMITMENT OF JAMES LEE RICHARD

_________________________________ ______________________ On A ppeal from the 435th District Court Montgomery County, Texas Trial Cause No . 13
- 03
- 03279 CV

________________________________________ ____ ____________ MEMORANDUM OPINION The State of Texas filed a petition to commit James Lee Richard as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001

- .151 (West 2010 & Supp. 2013). A jury found that Richard is a sexually violent predator and the trial court rendered a final judgment and an order of civil commitment. In five appellate issues, Richard challenges: (1) the legal and factual sufficiency of the evidence to support the jury’s verdict ; (2) the denial of his motion to amend his witness list; (3) the denial of his request to have an attorney present during the State’s post

- petition expert examination; and ( 4 ) the trial court’s2 granting of the State’s motion for a directed verdict

. We affirm the trial court’s judgment and order of civil commitment. Sufficiency of the Evidence In issues one and two , Richard conten ds that the evidence is legally and factually insufficient to support a finding that he is a sexually violent predator. Under legal sufficiency review, 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 881, 885 (Tex. App.

— Beaumont 2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id . at 887. Under factual sufficiency review, we weigh the evidence to determine “whether a verdict that is supported by legally sufficient evidence nevertheless 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). In an SVP case, the State must prove, beyond a reasonable doubt, that a
person is a sexually violent predator. Tex. Health & Safety Code Ann. § 841.062(a) (West 2010). A person is a “sexually violent predator” if he is a repeat3 sexually violent offender and suffers from a behavioral abnormality that makes him likely to engage in a pr edatory act of sexual violence. Id . § 841.003(a) (West Supp. 2013). 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 offens e, 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 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 contr ol.” In re Commitment of Almaguer , 117 S.W.3d 500, 506 (Tex. App.

— Beaumont 2003, pet. denied). During trial, the jury heard Richard admit to (1) having multiple arrests for various offenses; (2) being convicted of first degree sexual abuse, sexual assault, and several non

- sexual offenses; (3) using drugs and alcohol, (4) believing that he no long er has a substance abuse problem; (4) receivi ng major disciplinary cases in prison, including a case for sexual misconduct; (5) believing that he does not need sex offender treatment ; (6) having a violent past that includes violating a protective order; and (7) having trouble controlling his anger

. R ichard testified that he did not4 physically harm either of the victims in his sexual assault cases

. He did not believe that he is at any risk of reoffending and he explained that he can control his anger. Dr. Michael Arambula, a medical doctor, testified that Richard has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. He diagnosed Richard with mood disorder, paraphilia not otherwise
spec ified with sadistic features, sexual deviance, and personality disorder not otherwise specified with antisocial features. Arambula explained that Richard’s risk factors include sexual deviance, antisocial personality, denial, physical force, multiple acts with the victim s , number of victims, demeaning attitude towards women, commission of an offense while under supervision, commission of an offense after incarceration and after participation in sex offender treatment, history of substance abuse, criminal history , poor institutional adjustment, and mood disorder

. He testified that Richard’s sexual deviance is evidence that his emotional and volitional capacity has been affected. Accordingly, h e believed that Richard is a high risk for re

- offense. Dr. Darrel Turne r, a clinical psychologist, testified that Richard does not suffer from a behavioral abnormality. Turner diagnosed Richard with mood disorder not otherwise specified. He conducted actuarial testing and testified that Richard scored sixteen on the Hare PCL

- R, meaning Richard has some5 psychopathic traits, and that Richard scored positive three on the Static

- 99R, placing Richard in the low to moderate range of re

- offense. Turner identified the following risk factors: history of violent and criminal behavior, i ncluding two violent sexual offenses, institutional infractions, history of substance abuse, and a large degree of antisocial traits. He also identified protective factors: participation in sex offender treatment, social support, honorable discharge from t he military, maintenance of a business , lack of stranger victims, lack of sexual deviance, and
age. On appeal, Richard contends that central to Arambula’s opinion are his diagnos e s of sexual deviance and paraphilia not otherwise s pecified with sadistic features; but , according to Richard, Arambula presented no testimony to establish that Richard currently has “ intensely recurrent sexually arousing fantasies or urges generally involving nonconsenting persons .” He further contends that a finding based on h is past offenses is “ against the great weight and preponderance of the evidence and clearly wrong. ” “A medical diagnosis of a person’ s mental health may certainly inform an

asse ssment of whether he has an SVP’ s behavioral abnormality, but the principal is sue in a commit ment proceeding is not a person’ s mental health but whether he is predisposed to sexually violent conduct. ” In re Commitment of Bohannan , 3886 S.W.3d 296 , 306 (Tex. 2012) cert. denied , 133 S.Ct. 2746 (2013) . Accordingly, Arambula was not required to make any mental diagnosis in this case. Nevertheless, he testified that a paraphilia not otherwise specified diagnosis means that the person’s behavior does not meet all the criteria of a specific paraphilia. Ara mbula explained that he would expect to find intense and persistent sexual interests if Richard had a discrete diagnosis and because Richard’s first and second sexual offenses were separated by ten years, he did not give Richard a discrete paraphilia diagn osis. In addition to Arambula’s opinion that Richard has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence, the jury also heard evidence of Richard ’s risk factors, criminal history, sexual offenses, and other di agnoses. The jury was entitled to infer Richard’s current dangerousness based on Arambula’s testimony, Richard ’s past behavior , and Richard’s own testimony. See In re Commitment of Wilson , No . 09

- 08

- 00043

- CV , 2009 Tex. App. LEXIS 6714 , at *14 (Tex. App.

— Beaumont Aug. 27, 2009, pet. denied) (mem. op.)

. As sole judge of the weight and credibility of the evidence, the jury could reasonably conclude that Richard suffers from a behavioral abnormality that makes him likely to engage in a predatory act of s exual violence. Mullens , 92 S.W.3d at 887

.7 Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, beyond a reasonable doubt, that Richard is a sexually violent predator; thus, the evidence is legally sufficient. See Tex. Health & Safety Code Ann. § 841.062(a); see also Kansas v. Crane , 534 U.S. 407, 413 (2002); Mullens , 92 S.W.3d at 885. Weighing all of the evidence, the verdict does not

re flect a risk of injustice that would compel ordering a new trial. See Day , 342 S.W.3d at 213. We overrule issues one and two. Motion to Amend In issue three, Richard contends that the trial court improperly denied his motion to amend his witness list

. The trial court’s docket control order required the parties to designate fact witness lists by July 8, 2013. On September 5 , 2013, four days before trial, Richard filed a motion for leave to amend his witness list to add A.A., the complainant in one of Richard ’s prior sexual offenses, as a witness to testify to Richard’s character and her relationship with Richard. The trial court denied Richard’s request to add A.A. as a witness. We will review the trial court’s decision for abuse of discretion. See In re Commitment of Perez , No. 09

- 12

- 00132

- CV, 2013 Tex. App. LEXIS 1866, at *13 (Tex. App.

— Beaumont Feb. 28, 2013, pet. denied) (mem. op.).8 A party who fails to amend his list of fact witnesses in a timely manner may not introduce in evidence the testimony of a witness , other than a named party, who was un timely identified, unless the party shows that: (1) there was good cause for the failure to timely amend ; or (2) the failure to timely amend will not unfairly surprise or prejudice the other part y . Tex. R. Civ. P. 193 .6(a), (b). According to Richard’s motion for leave to amend , he first became aware of A.A.’s availability on September 4, after previous unsuccessful attempts to locate A.A. Richard told the trial court that he only knew of A.A.’s pseudonym and not her real name. T he record indicates that Richard was aware of A.A.’s existence and he could have identified A.A. as a potential witness by listing her pseudonym

. Accordingly, we conclude that Richard did not establish good cause for his failure to timely amend his witness list to include A.A. as a potential witness. See Tex. R. Civ. P. 193.6(a), (b) ; see also In re Commitment of Marks , 230 S.W.3d 241 , 246 (Tex. App

. — Beaumont 2007, no pet.) (“[I]f either the party or hi s attorney knows of the witness’s existence, the witness’ s identity should be disclosed. ”)

. Because A.A. was the complainant in one of his prior offenses , Richard also argued that the State would not be unfairly surprise d or prejudice d by an untimely amendment to include A.A. as a witness. According to Richard, A.A. filed an affidavit of non

- prosecution after the offense and she would testify to Richard’s9 character and her relationship with Richard, but would not attack the conviction.
T he purpose of a civil commitment proceeding is not to challenge the respondent’s criminal convictions. See In re Commitment of Briggs , 350 S.W.3d 362, 368

- 69 (Tex. App.

— Beaumont 2011, pet. denied). The trial judge coul d reasonably believe that A.A. ’s proffered testimony c ould have left the jury with the impression that the offense was in fact being challenged

. T he State was not on notice that Richard intended to call the victim of one of his sexual offenses as a witness to offer testimony outside the scope of an SVP proceeding

. See Cunningham v. Columbia/St. David’s Healthcare Sys., L.P. , 185 S.W.3d 7, 14 (Tex. App.

— Austin 2005, no pet.) (E ven when a party knows the substance of a witness’ s testimony , the non

- designated witness should not be permitted to testify because the party is not on notice that the witness will be called to testify and, thus, cannot adequately
prepare. ). Therefore, we con clude that the trial court did not abuse its discretion by denying Richard’s motion for leave to amend his witness list . W e overrule issue three. Right to Counsel In issue four , Richard complains of the 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 require s that counsel be present during10 a psychiatrist’s post

- petition examinati on. See In re Commitment of Smith , 422 S.W.3d 802, 807 (Tex. App.

— Beaumont 2014, pet. denied). Richard argues that Smith was based solely on a concession by Smith that the SVP statute defines a civil commitment proceeding as a “trial or hearing” and does n ot appear to
encompass a pre - trial psychiatric examination. Id . at 806. In Smith , we merely noted that Smith made this concession , and we did not base our holding on that concession alone. Id . at 804

- 07. Additionally, we have followed Smith in other

cases and we decline to revisit our ruling. 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. LE XIS 3888, at **1

- 2 (Tex. App.

— Beaumont Apr. 10, 2014, no pet. h.) ( pet. filed ). F or the reasons discussed in Smith , we overrule Richard’s fourth issue

. Directed Verdict In issue five, Richard challenges the trial court’s decision to grant the State’s motion for directed verdict regarding whether Richard is a repeat sexually violent offender. Richard argues there is a conflict between the Texas Rules of Civil Procedure, which allow for a directed verdict, and the SVP statute, which provides that in a ju ry trial, the “jury shall determine whether, beyond a reasonable doubt,11 the person is a sexually violent predator.” Tex. Health & Safety Code Ann. § 841.062(a); see Tex. R. Civ. P. 268. Because the SVP statute controls when in conflict with the Texas Rules of Civil Procedure, Richard contends that the trial court erroneously granted the State’s motion for a directed verdict. See Tex. Health & Safety Code Ann. § 841.146(b) (West 2010).
T his Court has held that a civil commitment proceeding is generally subj ect to the rules of procedure for civil cases and the trial court may grant a partial directed verdict to remove a certain portion of a case from the factfinder. In re Commitment of Scott , No. 09

- 11

- 00555

- CV, 2012 Tex. App. LEXIS 8866, at **4

- 5 (Tex. App.

— Beaumont Oct. 25, 2012, no pet.) ; see In re Commitment of Martinez , No. 09

- 12

- 00452

- CV, 2013 Tex. App. LEXIS 13512, at *12 (Tex. App.

— Beaumont Oct. 31, 2013, no pet.) (mem. op.). I n Lemmons , we addressed an argument virtually identical to Richard’s complaint and we found “ no conflict between the SVP statute and the Rules of Civil Procedure that precludes the granting of a directed verdict in a jury trial when no evidence of probative value raise s an issue of material fact on the question presented. ” Lemmons , 2014 Tex. App. LEXIS 3888, at *8. We, therefore, overrule issue five and affirm the trial court’s judgment.12 AFFIRMED.

_____ ___________________________ STEVE McKEITHEN Chief Justice Submitted on May 29, 2014 Opinion Delivered June 26, 2014 Before McKeithen, C.J., Kreger and Johnson , JJ.