                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-13-00511-CR
                              ____________________

                   PATRICK DEWAYNE SMITH, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 13-05-04885 CR
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury found Patrick Dewayne Smith guilty of violating a civil commitment

order as a sexually violent predator and sentenced Smith, as a habitual offender, to

sixty-eight years in prison. In two appellate issues, Smith contends that (1) he

cannot be convicted of violating an SVP civil commitment order that is not final;

and (2) the jury charge should have defined a violation of a civil commitment order

as a result-oriented offense. We affirm the trial court’s judgment.



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                             Civil Commitment Order

      In issue one, Smith argues that, at the time of trial, he had appealed the civil

commitment order, and the order therefore was not final and prosecution and

conviction for violating the order violated due process. Smith raised this issue in a

motion to quash the indictment, but the trial court denied the motion.

      “A person commits an offense if, after having been adjudicated and civilly

committed as a sexually violent predator . . . the person violates a civil

commitment requirement[.]” Tex. Health & Safety Code Ann. § 841.085(a) (West

2010). This Court has stated that a civil commitment order is effective even while

the case is on appeal. In re Commitment of Lowe, 151 S.W.3d 739, 743 (Tex.

App.—Beaumont 2004, pet. denied). Moreover, when a motion to quash an

indictment is filed, the indictment is “analyzed to determine whether [the

indictment] states on its face the facts necessary to allege that an offense was

committed, to bar a subsequent prosecution for the same offense, and to give the

accused notice of the precise offense with which he is charged.” Rotenberry v.

State, 245 S.W.3d 583, 586 (Tex. App.—Fort Worth 2007, pet. ref’d). The

indictment in this case, on its face, identifies Smith as the defendant and alleges

how and when he intentionally or knowingly violated the requirements of the civil

commitment order. Smith’s argument that he was not required to comply with an

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order that had been appealed is a defensive theory that is not relevant to whether

the indictment should have been quashed. See Miller v. State, 333 S.W.3d 352, 358

(Tex. App.—Fort Worth 2010, pet. ref’d) (Appellant’s defense that he was

confined when he violated the civil commitment order was irrelevant to whether

the trial court should have granted a motion to quash.). Under these circumstances,

we conclude that the trial court properly denied Smith’s motion to quash. We

overrule issue one.

                                 Nature of Offense

      In issue two, Smith contends that the trial court’s jury charge should have

defined a violation of a civil commitment order as a result-oriented offense. The

jury charge included the following definitions:

      A person acts intentionally, or with intent, with respect to the nature
      of his conduct or the result of his conduct when it is his conscious
      objective or desire to engage in the conduct or to cause the result.

      A person acts knowingly, or with knowledge with respect to the
      nature of his conduct, or to circumstances surrounding his conduct,
      when he is aware of the nature of his conduct or that the
      circumstances exist. A person acts knowingly, or with knowledge,
      with respect to a result of his conduct when he is aware that his
      conduct is reasonably certain to cause the result.

Defense counsel objected as follows:

      [T]he State has presented in this particular paragraph the statutory
      definitions as set out in our Code of Criminal Procedure with regard to
      a definition or penal code really [sic] with regard to a definition of
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      culpable mental states for the jury to consider in this case. They are
      including the language from those two definitions that describe it as a
      conduct offense. It is not a conduct offense. It is a result-oriented
      offense; and, therefore, they are required, as I believe, to alter these
      definitions and remove the references to conduct.

      ...

      The problem we have in this case and any other case like this is the
      actual statute that was passed by the Legislature does not contain a
      culpable mental state. It does not say intentionally or knowingly
      violate the commitment order. . . . It just says you violate the
      commitment order, that’s it, that’s what the statute says, but then the
      Code of Criminal Procedure, I think it’s under 603, says if a statute
      does not mention a culpable mental state then you’ve got to have one;
      and it’s knowing and intentional.

The trial court overruled the objection and refused defense counsel’s proposed jury

instructions.

      A trial court errs by failing to “limit the definitions of the culpable mental

states as they relate to the conduct elements involved in the particular offense.”

Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). Assuming without

deciding that the trial court erred by including the full statutory definitions of

“intentionally” and “knowingly” in the jury charge, we conclude that any such

error is harmless. When conducting a harm analysis, we consider: “(1) the entire

jury charge; (2) the state of the evidence, including the contested issues and weight

of probative evidence; (3) the arguments of counsel; and (4) any other relevant

information revealed by the record of the trial as a whole.” Hill v. State, 265
                                         4
S.W.3d 539, 543 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Reversal is

only required if the record demonstrates that Smith suffered actual, rather than

merely theoretical, harm. See id.

      The application portion of the charge tracked the language of the statute and

instructed the jury that it could only find Smith guilty if it found beyond a

reasonable doubt that he intentionally or knowingly violated the civil commitment

order. See Tex. Health & Safety Code Ann. § 841.085(a). The jury heard evidence

that Smith agreed to and understood the conditions of his civil commitment,

violated those conditions by failing to charge his tracking device, having

unapproved contact with his cousin, and possessing pornography, the last of which

resulted in discharge from the treatment center. During arguments, the State briefly

discussed the abstract portion of the jury charge and focused its argument on the

ways in which Smith had violated the terms of his civil commitment. Based on our

review of the record, we conclude that Smith did not suffer harm from any error in

the abstract portion of the trial court’s charge. We overrule issue two and affirm

the trial court’s judgment.

      AFFIRMED.

                                             ________________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice

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Submitted on August 13, 2014
Opinion Delivered September 10, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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