                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-15-00360-CV
                             ____________________

          IN RE COMMITMENT OF CARL DOUGLAS LEWIS
__________________________________________________________________

                On Appeal from the 435th District Court
                     Montgomery County, Texas
                   Trial Cause No. 14-11-12820-CV
__________________________________________________________________

                                    OPINION

      The State of Texas filed a petition to commit Carl Douglas Lewis as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2015). A jury found that Lewis is a sexually violent predator,

and the trial court rendered a final judgment and an order of civil commitment. In

two appellate issues, Lewis challenges the denial of his motion to recuse the trial

judge and his motion for directed verdict. We affirm the trial court’s judgment and

order of civil commitment.




                                        1
                                 Motion to Recuse

      In issue one, Lewis contends that Judge Michael T. Seiler should have been

recused from presiding over Lewis’s trial. We review the denial of a motion to

recuse under an abuse of discretion standard. In re Commitment of Winkle, 434

S.W.3d 300, 310 (Tex. App.—Beaumont 2014, pet. denied). A judge must be

recused when his “impartiality might reasonably be questioned[]” or he has a

“personal bias or prejudice concerning the subject matter or a party[.]” Tex. R. Civ.

P. 18b(b)(1), (2). The complaining party “must show that a reasonable person, with

knowledge of the circumstances, would harbor doubts as to the impartiality of the

trial judge, and that the bias is of such a nature and extent that allowing the judge

to serve would deny the movant’s right to receive due process of law.” Winkle, 434

S.W.3d at 311.

      In his motion to recuse, Lewis argued that Judge Seiler’s conduct

demonstrated a lack of impartiality. Lewis complained of comments that Judge

Seiler made during speeches to the Texas Patriots PAC and the Montgomery

County Republican Women, along with comments and slogans that Judge Seiler

used during his re-election campaign. Lewis also pointed to Judge Seiler’s recusals

in other SVP cases. At the recusal hearing, Lewis argued that Judge Seiler had

been publicly reprimanded by the Texas Judicial Conduct Commission (“the

                                         2
Commission”). Lewis also argued that: (1) the Texas Legislature had before it an

amendment to the SVP statute that sought to eliminate Judge Seiler’s exclusive

jurisdiction over SVP cases; (2) both attorneys and non-lawyers had questioned

Judge Seiler’s behavior; and (3) Dr. John Tennison, an expert witness, gave a

deposition addressing the manner in which Judge Seiler treated him when he

testified in SVP cases. The assigned judge denied Lewis’s motion, stating that he

did not believe that Judge Seiler’s “attitude, the satire, the poor humor and,

truthfully, the misconduct that the Commission found, has come into this court to

deny individuals the right to a fair trial.”

       This Court has previously addressed whether Judge Seiler’s campaign

materials and speeches required recusal, and we held that “the assigned judge

could reasonably conclude that Judge Seiler’s statements did not constitute such

bias or prejudice as to deny [the respondent] a fair trial.” In re Commitment of

Terry, No. 09-15-00053-CV, 2015 Tex. App. LEXIS 9570, **4-7 (Tex. App.—

Beaumont Sept. 10, 2015, pet. denied) (mem. op.); see also Winkle, 434 S.W.3d at

310-13. Moreover, that Judge Seiler has been recused in other cases is not

dispositive regarding the issue of whether the assigned judge abused his discretion

by denying Lewis’s motion. See McCullough v. Kitzman, 50 S.W.3d 87, 89 (Tex.




                                               3
App.—Waco 2001, pet. denied) (“The determination of whether recusal is

necessary must be made on a case-by-case fact-intensive basis.”).

      As for the public reprimand, on April 24, 2015, the Commission found that:

             . . . Judge Seiler engaged in numerous instances in which he
      treated attorneys from the State Counsel for Offenders office, as well
      as one of their expert witnesses, in a manner that was less than patient,
      dignified and courteous. While a judge has a duty to maintain order
      and decorum in the courtroom, which may require that he take
      appropriate measures to address situations in which an attorney or
      witness may be acting inappropriately, Canon 3B(4) of the Texas
      Code of Judicial Conduct prohibits that judge from belittling,
      degrading and/or demeaning the attorney, witness, or anyone else with
      whom the judge deals in an official capacity. Moreover, Judge Seiler’s
      comments . . . were sufficiently impatient, discourteous and
      undignified to cause a reasonable person to perceive that Judge Seiler
      harbored such a bias against the SCFO attorneys, their expert witness,
      and the offenders themselves, that a fair trial was not possible. Based
      on the incidents described above, the Commission concludes that
      Judge Seiler’s conduct constituted willful and persistent violations of
      Canons 3B(4) and 3B(5) of the Texas Code of Judicial Conduct, and
      Article V, §I-a(6)A of the Texas Constitution.

             . . . Judge Seiler’s presentation before the Texas Patriots PAC
      could cause a reasonable person to perceive that Judge Seiler would
      not be fair and impartial while presiding over civil commitment
      proceedings, in violation of Canon 4A(1) of the Texas Code of
      Judicial Conduct. Moreover, Judge Seiler’s public comments about
      specific offenders whose cases were subject to his court’s continuing
      jurisdiction, did suggest to a reasonable person how he would rule
      when those individuals come before the court in future proceedings, in
      violation of Canon 3B(10) of the Texas Code of Judicial Conduct.
      Because Judge Seiler was recused from several civil commitment
      cases as a direct result of his presentation before the Texas Patriots
      PAC, the Commission concludes that his extrajudicial conduct

                                         4
      interfered with the proper performance of his duties, in violation of
      Canon 4A(2) of the Texas Code of Judicial Conduct.

Public Reprimand and Order of Additional Education of Michael Thomas Seiler,

435th District Court Judge, Nos. CJC 12-0737-DI; 12-1143-DI; 13-0027-DI; 13-

0235-DI; 13-0373-DI; 15-0129-DI;15-0374 (Comm’n Jud. Conduct Apr. 24,

2015). The Commission ordered Judge Seiler to obtain four hours of instruction

with a mentor judge in the following areas: “(1) the appropriate treatment of

attorneys, witnesses, and others with whom the judge deals in an official capacity;

(2) avoiding bias and appearance of bias; and (3) avoiding extrajudicial conduct

that casts doubt on a judge’s capacity to act impartially and/or interferes with the

proper performance of the judge’s duties.”

      Additionally, the Texas Legislature originally vested exclusive authority

over SVP cases in the 435th Judicial District Court in Montgomery County. See

Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.041(a), 1999 Tex.

Gen. Laws 4122, 4146; see also Act of May 28, 2007, 80th Leg., R.S., ch. 1342, §

5, 2007 Tex. Gen. Laws 4563, 4564. The Texas Legislature has since repealed this

provision and amended the SVP statute to remove this exclusive jurisdiction. See

Act of May 21, 2015, 84th Leg., R.S., ch. 845, §§ 7, 39, 2015 Tex. Gen. Laws

2700, 2703, 2711. According to the amendment’s Bill Analysis:


                                         5
      [T]he court that conducts the civil commitment trial is a specialty
      court, the 435th [D]istrict Court of Montgomery County, with state
      employees serving as Special Prosecutors and the Texas Board of
      Criminal Justice, Office of State Counsel for Offenders as defense
      attorneys. The court is currently in complete disarray. Public
      statements by the elected judge from Montgomery County have
      rendered him ineffective and led to his recusal from hearing cases he
      is designated by statute to hear. This is having a negative impact on
      the entire Second Administrative Judicial District impacting 35 other
      counties.

Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S.

(2015). The amendment does not preclude Judge Seiler from presiding over SVP

cases, but rather provides that a petition alleging predator status may be filed “in

the court of conviction for the person’s most recent sexually violent offense[.]”

Tex. Health & Safety Code Ann. § 841.04(a) (West Supp. 2015).

      The misconduct of which Lewis complains occurred before the

Commission’s public reprimand. On May 7, 2015, when the assigned judge ruled

on Lewis’s motion, the Commission had already issued its public reprimand of

Judge Seiler. Thus, the assigned judge was entitled to presume that, since being

publicly reprimanded and the amending of the SVP statute, Judge Seiler would

“divest himself of any previous conceptions, and . . . base his judgment, not on

what he originally supposed but rather upon the facts as they are developed at the

trial.” See Lombardino v. Firemen’s & Policemen’s Civil Serv. Comm’n, 310

S.W.2d 651, 654 (Tex. Civ. App.—San Antonio 1958, writ ref’d n.r.e.); see Terry,
                                         6
2015 Tex. App. LEXIS 9570 at *7. The assigned judge could reasonably conclude

that Judge Seiler’s statements did not constitute such bias or prejudice as to deny

Lewis a fair trial. See Winkle, 434 S.W.3d at 311. Because the assigned judge did

not abuse his discretion by denying Lewis’s motion to recuse, we overrule issue

one.

                           Motion for Directed Verdict

       In issue two, Lewis challenges the trial court’s denial of his motion for

directed verdict. Lewis moved for a directed verdict on grounds that the State

“proffered no psychiatric or medical testimony in order to support a finding of

involuntary civil commitment as a sexually violent predator.” Lewis argued that

the Texas Constitution requires competent medical or psychiatric testimony before

committing a person of unsound mind. The trial court denied the motion.

       We review the denial of a motion for directed verdict under a legal

sufficiency standard. In re Commitment of Hatchell, 343 S.W.3d 560, 564 (Tex.

App.—Beaumont 2011, no pet.). We view the evidence in the light most favorable

to the verdict to determine if a rational jury could have found, beyond a reasonable

doubt, the elements required for commitment under the SVP statute. In re

Commitment of Nicholson, No. 09-13-00498-CV, 2014 Tex. App. LEXIS 10179, at

**9-10 (Tex. App.—Beaumont Sept. 11, 2014, no pet.) (mem. op.). “It is the

                                         7
factfinder’s responsibility to fairly resolve conflicts in the testimony, weigh the

evidence, and draw reasonable inferences from basic facts to ultimate facts.” Id.

      Under the Texas Constitution, “[n]o person shall be committed as a person

of unsound mind except on competent medical or psychiatric testimony.” Tex.

Const. Art. I, § 15-a. In Beasley v. Molett, 95 S.W.3d 590 (Tex. App.—Beaumont

2002, pet. denied), we held that the SVP statute’s provisions, “when read together

with the constitutional requirement that an involuntary commitment not occur in

the absence of competent medical or psychiatric testimony, indicate the legislature

intended there be competent medical or psychiatric testimony to support an

involuntary commitment under the Act, and provided for it therein.” Beasley, 95

S.W.3d at 598. The current version of the SVP statute, however, provides that “[a]

person who suffers from a behavioral abnormality as determined under this chapter

is not because of that abnormality a person of unsound mind for purposes of

Section 15-a, Article I, Texas Constitution.” Tex. Health & Safety Code Ann. §

841.1461 (West 2010) (emphasis added).

      On appeal, Lewis argues that the Texas Legislature cannot “legislate around

the requirement of the Texas Constitution, and on its own declare that alleged

sexually violent predators are not of ‘unsound mind.’” In our view, the Texas

Constitution’s phrase “committed as a person of unsound mind” does not include a

                                         8
person committed under the SVP statute. “The intended result of the [SVP] statute

is to prevent repeated predatory behavior by providing sex offender treatment to

persons afflicted with a difficulty controlling their behavior that predisposes them

to sexual violence to the extent they become a menace to the health and safety of

others.” In re Commitment of Rushing, No. 09-11-00268-CV, 2012 Tex. App.

LEXIS 8140, at *6 (Tex. App.—Beaumont Sept. 27, 2012, no pet.) (mem. op.). As

the Texas Supreme Court has explained, although the medical diagnosis of a

person’s mental health may inform an assessment of whether he has a behavioral

abnormality under the SVP statute, “the principal issue in a commitment

proceeding is not a person’s mental health but whether he is predisposed to

sexually violent conduct.” In re Commitment of Bohannan, 388 S.W.3d 296, 306

(Tex. 2012).1 Accordingly, “[t]he usefulness of the expert’s opinion in assisting the

trier-of-fact rests not on the type of license the expert holds but on the expert’s

knowledge, training, and experience in dealing with sexual offenders.” Id. Because

a mental disorder is not a prerequisite to commitment under the SVP statute, we

conclude that civil commitment proceedings of an SVP do not constitute

commitment of a person of unsound mind. See id.; see also In re Commitment of
      1
       The Texas Supreme Court assumed, without deciding, that “the constitution
is no impediment to the admission of non-medical expert testimony in an SVP
commitment proceeding.” In re Commitment of Bohannan, 388 S.W.3d 296, 304
(Tex. 2012).
                                         9
Richard, No. 09-13-00539-CV, 2014 Tex. App. LEXIS 6974, at *6 (Tex. App.—

Beaumont June 26, 2014, pet. denied) (mem. op.), cert. denied, 135 S. Ct. 1747,

191 L. Ed. 2d 712 (2015).

      In this case, Dr. Jason Dunham, a forensic psychologist, testified that Lewis

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

predatory act of sexual violence. Dunham identified Lewis’s risk factors, and he

explained that Lewis is sexually deviant, has not received sex offender treatment,

and has indicated that he will likely not seek treatment, and has had sexual

misconduct cases in prison. Dunham testified that Lewis’s score on the Static-99R

actuarial test demonstrated a moderate to high risk of being reconvicted for a

sexual offense. Dunham also diagnosed Lewis with unspecified paraphilic disorder

and personality disorder not otherwise specified with antisocial and narcissistic

features. Viewing the evidence in the light most favorable to the verdict, a rational

jury could have found, beyond a reasonable doubt, the elements required for

commitment under the SVP statute. See Nicholson, 2014 Tex. App. LEXIS 10179,

at **9-10. Because no other medical or psychiatric testimony was required, the

trial court properly denied Lewis’s motion for directed verdict. See Hatchell, 343

S.W.3d at 564. We overrule issue two and affirm the trial court’s judgment and

order of civil commitment.

                                         10
      AFFIRMED.



                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice

Submitted on May 2, 2016
Opinion Delivered May 12, 2016

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




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