                                        In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00236-CV
                           ____________________

          IN RE COMMITMENT OF JOHN EARL ALEXANDER
_______________________________________________________           ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 11-09-10035 CV
________________________________________________________           _____________

                          MEMORANDUM OPINION

      The State filed a petition seeking the involuntary civil commitment of John

Earl Alexander as a sexually violent predator. See Tex. Health & Safety Code Ann.

§§ 841.001-.151 (West 2010 & Supp. 2012). A jury found beyond a reasonable

doubt that Alexander is a sexually violent predator. See id. § 841.003 (West 2010).

The trial court signed an order of commitment, and Alexander filed this appeal

from the final judgment. The issues raised on appeal present no reversible error.

We affirm the trial court’s judgment.




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                                    THE STATUTE

      The State was required to prove beyond a reasonable doubt that Alexander is

a sexually violent predator. See id. § 841.062(a) (West 2010). The statute defines

“sexually violent predator” as a person who “(1) is a repeat 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). 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 offense, to the extent that the person becomes a menace to the

health and safety of another person.” Id. § 841.002(2) (West Supp. 2012).

                           CONSTITUTIONAL CHALLENGE

      In his first issue, Alexander argues the Texas Supreme Court’s opinion in In

re Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012), cert. filed

(Apr. 8, 2013)(No. 12-9719), has the effect of eliminating the requirement of a

mental illness for civil commitment under the SVP statute. Alexander argues the

statute is therefore facially unconstitutional. As this Court recently stated in In re

Commitment of Anderson, “We do not read the Bohannan opinion as eliminating a

statutory requirement, or as altering the proof required under the statute to find that

a person is a sexually violent predator.” In re Commitment of Anderson, 392

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S.W.3d 878, 886 (Tex. App.—Beaumont 2013, pet. denied). Issue one is

overruled.

                          RULING ON MOTION TO QUASH

      In his second issue, Alexander contends the trial court erred by denying

Alexander’s motion to depose Dr. Lisa Clayton, the State’s expert. Alexander

served a notice to depose Clayton and the State filed a motion to quash the

deposition. After a hearing, the trial court granted the State’s motion to quash.

Alexander maintains that the trial court should have allowed the deposition

because Brady v. Maryland’s rule requiring disclosure of exculpatory evidence in

criminal cases should be extended to SVP civil commitment cases. See Brady v.

Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      We review a trial court’s ruling on a motion to quash a deposition under an

abuse-of-discretion standard. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d

434, 445 (Tex. 2007); Salazar v. Coastal Corp., 928 S.W.2d 162, 171 (Tex.

App.—Houston [14th Dist.] 1996, no writ). SVP cases are civil proceedings, not

criminal or quasi-criminal. See In re Commitment of Martinez, 98 S.W.3d 373, 375

(Tex. App.—Beaumont 2003, pet. denied) (“Chapter 841 is a civil, not a criminal

or quasi-criminal, statute.”). A civil commitment proceeding is subject to the rules




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of civil procedure unless otherwise provided by the Act. Tex. Health & Safety

Code Ann. § 841.146(b) (West 2010).

      Clayton was not designated or retained as a testifying expert for the State.

“The identity, mental impressions, and opinions of a consulting expert whose

mental impressions and opinions have not been reviewed by a testifying expert are

not discoverable.” Tex. R. Civ. P. 192.3(e). The trial court did not abuse its

discretion in granting the State’s motion to quash. Issue two is overruled.

                           SUFFICIENCY OF THE EVIDENCE

      In his third and fourth issues, Alexander challenges the legal and factual

sufficiency of the evidence supporting the jury’s finding that he is a sexually

violent predator. Alexander argues the State’s experts presented no basis

supporting their opinions on Alexander’s current mental health or ability to control

his behavior. He maintains the evidence is legally and factually insufficient to

support the verdict because the State failed to provide evidence that he presently

suffers from any of the mental disorders diagnosed by the experts, failed to provide

evidence to establish either a current condition or volitional impairment, and failed

to establish he has serious difficulty in controlling his behavior. See generally In re

Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.

denied) (legal sufficiency standard of review); see also In re Commitment of Day,

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342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied) (factual

sufficiency standard of review).

      Alexander has a history of sexual offenses. In 2002, he received juvenile

probation for the offense of aggravated sexual assault of a child under fourteen

years of age. In 2009, he pleaded guilty to two offenses of indecency with a child

and received deferred adjudication community supervision for five years for each.

He violated the terms of his community supervision and in July 2010 was

sentenced to three years of confinement for each of the indecency-with-a-child

offenses, to be served concurrently. Alexander was serving these sentences at the

time of trial, and was twenty-three years old.

      The State’s experts, Dr. Stephen Thorne and Dr. David Self, testified that

Alexander suffers from a behavioral abnormality that makes him likely to engage

in a predatory act of sexual violence. Thorne diagnosed Alexander with sexual

deviancy, pedophilia, personality disorder not otherwise specified, and mood

disorder. Dr. Self diagnosed Alexander with pedophilia, sexual deviancy,

personality disorder not otherwise specified, antisocial personality with

psychopathic traits, major depression with psychosis by history, and polysubstance

dependence.




                                          5
      Thorne identified Alexander’s risk factors for re-offending. Alexander was

almost thirteen years old when he committed his first offense against his five-year-

old sister; he re-offended after completing sex offender treatment; his second and

third offenses also involved child victims; he denies some of the offenses despite

pleading guilty; he has repeat victims; a large percentage of sexual offenses take

place by individuals in his age category; and he has not done anything to improve

his risk level. Dr. Thorne also considered Alexander’s psychiatric history and past

desire to discontinue taking his psychiatric medications, his antisocial and past

threatening behavior, his history of substance abuse, his pattern of violating rules

and laws, and his lack of a specific plan upon his release. Dr. Self identified risk

factors similar to those identified by Thorne.

      Dr. Thorne noted that Alexander’s actions show he has had a difficult time

controlling his impulses. Alexander told Thorne that “he lives in the moment” and

does not plan ahead. Thorne believes these statements show that Alexander is not

taking the necessary steps to prevent predatory behavior from happening again.

Thorne noted that it is not significant that Alexander has not reoffended while

incarcerated. His victims were child victims and he does not have access to

children while he is incarcerated. Alexander re-offended after completing sex

offender treatment, and has not had any sex offender treatment since his most

                                          6
recent offenses. Alexander does not believe he needs it. Thorne has concerns that

he does not have a plan to avoid re-offending because Alexander denies he has a

problem.

      Dr. Self likewise has concerns about Alexander’s volitional capacity,

because Alexander committed his second and third offenses shortly after

completing his probation and after more than four years of sex offender treatment.

Self calls this a “marked failure of [Alexander’s] volition.” Self is also concerned

that Alexander denies the need for sex offender treatment and that he acts without

planning.

      At trial, Alexander admitted the offense against his sister but explained that

he did not know at the time that it was wrong. Although Alexander pleaded guilty

to the two later offenses, he denied at trial that he committed them. He testified that

he does not have a problem with sex offending, does not believe he is a sex

offender, and does not believe he needs sex offender treatment.

      The evidence supports the jury’s verdict. The jury was entitled to draw

reasonable inferences from basic facts to determine ultimate fact issues, and to

resolve conflicts and contradictions in the evidence by believing all, part, or none

of a witness’s testimony. In re Commitment of Barbee, 192 S.W.3d 835, 842 (Tex

App.—Beaumont 2006, no pet.). Considering the evidence in the light most

                                          7
favorable to the verdict, we conclude the jury could reasonably find beyond a

reasonable doubt that Alexander has a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. The record does not reflect a

risk of injustice that compels granting a new trial. Issues three and four are

overruled. The trial court’s judgment is affirmed.

      AFFIRMED.


                                             ________________________________
                                                     DAVID GAULTNEY
                                                           Justice

Submitted on April 8, 2013
Opinion Delivered May 30, 2013

Before Gaultney, Kreger, and Horton, JJ.




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