                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-12-00001-CV
                           ____________________


         IN RE COMMITMENT OF PATRICK DEWAYNE SMITH


_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                        Trial Cause No. 11-07-07543-CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to civilly commit Patrick Dewayne Smith

as a sexually violent predator under the Sexually Violent Predator Act. See Tex.

Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP

statute). A jury found Smith suffers from a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. Id. § 841.003(a). The trial

court entered a final judgment and an order of civil commitment under the SVP

statute. Smith raises six issues on appeal. We affirm the trial court‘s judgment.


                                         1
                       SUBJECT MATTER JURISDICTION

      In his first issue, Smith contends the trial court lacked subject matter

jurisdiction because Smith did not have an ―anticipated release date‖ within the

meaning of section 841.021 of the SVP statute. See id. § 841.021(a). The SVP

statute ―does not distinguish between those anticipated to be released on parole and

those anticipated to be released unconditionally as a result of completion of their

sentences.‖ In re Commitment of Evers, No. 09-11-00430-CV, 2012 WL 6213508,

at *2 (Tex. App.—Beaumont Dec. 13, 2012, pet. denied). Smith argues his case

will not ripen until he has been released unconditionally, but ―[w]hether the person

is convicted of another offense after the State files a petition seeking civil

commitment . . . or whether a person is released on parole or released

unconditionally, there is nothing in [the SVP statute] that indicates the Legislature

intended to divest the trial court of jurisdiction.‖ Id. at *5. The trial court obtained

subject matter jurisdiction over the civil commitment proceeding. We overrule

issue one.

                               PROTECTIVE ORDER

      In issue two, Smith contends the trial court erred by allowing the State to

refuse to answer certain requests for admission based upon a claim of attorney

work product. We review the trial court‘s ruling for an abuse of discretion. In re

                                           2
Commitment of Perez, No. 09-12-00132-CV, 2013 WL 772842, at *5 (Tex. App.—

Beaumont Feb. 28, 2013, pet. denied) (mem. op.).

      The trial court granted a protective order as to the following requests for

admission, each of which the State challenged as violating the work product

privilege:

              The psychological assessment tools used by the experts for the
               State of Texas are unable to predict if a particular individual,
               such as the Respondent, is likely to commit a predatory act of
               sexual violence.
              The State of Texas has no evidence that the primary purpose of
               Respondent‘s qualifying sexual offenses was victimization.
              The psychological assessment tools used by the experts for the
               State of Texas are unable to predict if a particular individual,
               such as the Respondent, is likely to commit a future sexual act
               with the primary purpose of victimization.
              The psychiatrist(s) listed as an expert by the State of Texas is
               not licensed in forensic psychology.
              The psychiatrist(s) listed as an expert by the State of Texas is
               not board certified in forensic psychology.
              The Minnesota Sex Offender Screening Tool — Revised
               (MnSOST-R), used by the State‘s experts, is based on a sample
               size of less than 300 subjects.
              The MnSOST-R has been found to be an invalid tool to be used
               to measure rates of re-arrest.
              Upon release from custody, the Respondent will be required to
               register as a sex offender.
              The Respondent‘s entire adult criminal record is contained in
               the Respondent‘s DPS and FBI records, provided by the State
               of Texas to the State Counsel for Offenders.
              The State‘s experts cannot give a diagnosis of Paraphilia for the
               Respondent.


                                            3
 The Multidisciplinary Team Psychologist did not give any
  diagnoses for sexual deviant illness to the Respondent.
 V codes are not actual diagnosis.
 The State did not offer the Respondent an opportunity to
  participate in Sex Offender Treatment during the first five years
  of his incarceration.
 The State did not offer the Respondent an opportunity to
  participate in Sex Offender Treatment during years six through
  ten of his incarceration.
 The State did not offer the Respondent an opportunity to
  participate in Sex Offender Treatment during years ten through
  twenty of his incarceration.
 The State did not offer the Respondent an opportunity to
  participate in Substance Abuse Treatment during the first five
  years of his incarceration.
 The State assigned the Respondent a minimum custody status
  during his incarceration at the Texas Department of Criminal
  Justice.
 Individuals civilly committed pursuant to Chapter 841 of the
  Texas Health & Safety Code have opportunities to engage in
  predatory acts of sexual violence.
 The conduct disorder testified to by State‘s Experts does not
  meet the requirements listed in the DSM-IV-TR.
 Respondent has protective factors that lower his rate of re-
  offending.
 Respondent has marketable job skills.
 Respondent has not had an opportunity to complete the Sex
  Offender Treatment Program prior to the filing of this lawsuit.
 The State is seeking to civilly commit Respondent prior to
  Respondent completing the Sex Offender Treatment Program.
 Research has established that Sex Offender Treatment lowers a
  person‘s risk to re-offend.
 Respondent will be on parole for 7 years after his release from
  the Texas Department of Criminal Justice.




                               4
      The State argued that any information that counsel for the Special

Prosecution Unit gained about a specific case is made in anticipation of litigation

or trial. On appeal the State argues its responses would require it to divulge work

product because only counsel for the Special Prosecution Unit is available to

answer discovery. The work product rule shelters an attorney‘s mental processes,

conclusions, and legal theories so the lawyer can analyze and prepare the case. In

re Bexar Cnty. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007).

The State presents no argument that the matters inquired into seek counsel‘s

mental impressions, material prepared by counsel in anticipation of litigation, or

communications made in anticipation of trial. See Tex. R. Civ. P. 192.5. Instead,

the State appears to be arguing that answers to requests for admission are work

product because the responses would be prepared by a lawyer. Like drafting

pleadings, preparing discovery responses constitutes the practice of law. See, e.g.,

Tex. Gov‘t Code Ann. § 81.101(a) (West 2013) (―[T]he ‗practice of law‘ means

the preparation of a pleading or other document incident to an action or special

proceeding or the management of the action or proceeding on behalf of a client

before a judge in court as well as a service rendered out of court[.]‖). The Special

Prosecution Unit does not, as the State argues, possess a unique status. The State

is not exempt from the rules of civil procedure but it enjoys the same procedural

                                         5
rights as do other litigants. See generally Lowe v. Tex. Tech Univ., 540 S.W.2d

297, 301 (Tex. 1976) (considering statutory provision stating ―[n]o admission,

agreement or waiver, made by the Attorney General, in any action or suit in which

the State is a party, shall prejudice the rights of the State.‖).

       Considering the trial court ordered the State to answer other requests for

admissions that are not at issue here, it is unlikely that the trial court issued the

protective order on the ground asserted by the State on appeal. The State does not

present any other reason why its responses would be work product. The State

argues that the attorneys for the Special Prosecution Unit have no knowledge of the

person referred for commitment until the referral is made, and that accordingly any

knowledge counsel acquires results from the attorney‘s work on the case. But the

State does not explain how it is possible for the State to prosecute, incarcerate, and

evaluate persons for commitment without obtaining knowledge, through its agents

and employees, of the factual matters referred to in the requests for admission.

The work product privilege ―does not extend to facts the attorney may acquire.‖

Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 n.2 (Tex.

1991).1 In such case, the State could make a reasonable inquiry and respond to the


       1
          The State argues cases cited by Smith concerning the production of
documents are inapposite in a case concerning requests for admission. The issue
here is the scope of the privilege, not the scope of discovery.
                                            6
requests. See generally Tex. R. Civ. P. 198.2(b); see also Tex. Health & Safety

Code Ann. § 841.146(b) (―[A] civil commitment proceeding is subject to the rules

of procedure and appeal for civil cases.‖). The trial court erred in granting a

protective order.

      Error in granting a protective order will result in the reversal of the judgment

only if the error probably caused the rendition of an improper judgment or

prevented the appellant from properly presenting the case on appeal. Perez, 2013

WL 772842, at *6; see Tex. R. App. P. 44.1(a). In Perez, we held that any error

was harmless because Perez was able to obtain discovery through other means.

Perez, 2013 WL 772842, at *6. As was the case in Perez, in Smith‘s case the trial

court‘s docket control order required production of the Multi-Disciplinary Team

referral packet and Smith deposed the State‘s experts prior to trial. Smith had

access to other sources to obtain the information he sought in his request for

admissions; consequently any error in the trial court‘s decision to protect the State

from responding to requests for admissions did not cause the rendition of an

improper judgment or prevent Smith from presenting his case on appeal. See Tex.

R. App. P. 44.1(a). We overrule issue two.




                                          7
                              JURY INSTRUCTION

      In his third issue Smith complains the broad-form jury question allowed the

jury to find Smith to be a sexually violent predator without also finding that he has

serious difficulty in controlling his behavior. The jury charge asked the jury, ―Do

you find beyond a reasonable doubt that [Smith] is a sexually violent predator?‖

The trial court included in the charge the definition of ―sexually violent predator‖

found in the SVP statute. See Tex. Health & Safety Code Ann. § 841.003(a). The

jury charge defined ―‗behavioral abnormality‘‖ as 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.‖ See id. §

841.002(2).2

      Smith requested a jury charge that would have required the jury to find

separately whether Smith (1) is a repeat sexually violent offender, (2) who suffers

from a behavioral abnormality, (3) that makes him likely to engage in a predatory


      2
         After Smith‘s trial, the Supreme Court noted that the statutory definition of
―behavioral abnormality‖ ―might more clearly be written: ‗Behavioral
abnormality‘ means a congenital or acquired predisposition, due to one‘s emotional
or volitional capacity, to commit a sexually violent offense, to the extent that the
person becomes a menace to the health and safety of another person.‖ In re
Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 81
U.S.L.W. 3658 (U.S. May 28, 2013) (No. 12-9719).
                                          8
act of sexual violence. The trial court submitted the jury question this Court held

should be submitted in civil commitment cases under the SVP statute. In re

Commitment of Myers, 350 S.W.3d 122, 129 (Tex. App.—Beaumont 2011, pet.

denied). We have repeatedly held that the trial court may within its discretion

submit the controlling issue in a single question and instruct the jury regarding

―behavioral abnormality‖ in a definition. In re Commitment of Bath, No. 09-11-

00559-CV, 2012 WL 3860631, at *5 (Tex. App.—Beaumont Sept. 6, 2012, no

pet.) (mem. op.); In re Commitment of Elkins, No. 09-10-00557-CV, 2012 WL

2849164, at *3 (Tex. App.—Beaumont July 12, 2012, no pet.) (mem. op.); In re

Commitment of Campbell, No. 09-11-00407-CV, 2012 WL 2451620, at *7-8 (Tex.

App.—Beaumont June 28, 2012, pet. denied) (mem. op.); In re Commitment of

Reed, No. 09–11–00484–CV, 2012 WL 1072255, at *3 (Tex. App.—Beaumont

Mar. 29, 2012, no pet.) (mem. op.).

      Smith argues he cannot present his case on appeal because under the

submitted charge the jury‘s answer could have reflected the jury‘s belief that Smith

had a behavioral abnormality that caused him to be likely to reoffend sexually, or it

could have reflected a belief that Smith had a behavioral abnormality, from which

it necessarily follows that he is likely to reoffend sexually. In Perez, we held the

trial court did not err in refusing to ask the jury separately whether the person has a

                                          9
behavioral abnormality and whether the behavioral abnormality makes the person

likely to engage in a predatory act of sexual violence. Perez, 2013 WL 772842, at

*8. ―The condition and predisposition are one and the same[,]‖ and ―whether a

person ‗suffers from a behavioral abnormality that makes the person likely to

engage in a predatory act of sexual violence‘ is a single, unified issue.‖ Bohannan,

388 S.W.3d at 302, 303.

      Smith‘s requested jury charge also included an instruction that the phrase

―‗affecting a person‘s emotional or volitional capacity‘ means serious difficulty in

controlling behavior.‖ The jury charge defined the terms that are defined in the

SVP statute. ―When a case is governed by a statute, as it is here, the jury charge

should track the statutory language as closely as possible.‖ In re Commitment of

Hill, No. 09-11-00593-CV, 2013 WL 772834, at *15 (Tex. App.—Beaumont Feb.

28, 2013, pet. denied) (mem. op.). Broad-form submission tracking the SVP statute

accompanied by the statutory definition of ―behavioral abnormality‖ in the charge

―entails a determination that he has ‗serious difficulty controlling behavior.‘‖ See

In re Commitment of Almaguer, 117 S.W.3d 500, 505-06 (Tex. App.—Beaumont

2003, pet. denied) (quoting In re Commitment of Browning, 113 S.W.3d 851, 862-

63 (Tex. App.—Austin 2003, pet. denied)). We overrule issue three.




                                        10
                    LEGAL AND FACTUAL SUFFICIENCY

      In issues four and five, Smith argues that the evidence is legally and

factually insufficient to support a finding that Smith suffers from a behavioral

abnormality. Under the SVP statute, the State must prove beyond a reasonable

doubt that ―the person is a sexually violent predator.‖ Tex. Health & Safety Code

Ann. § 841.062(a). The SVP 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). The statute defines ―‗behavioral abnormality‘‖ as ―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).

      Because the SVP statute employs a beyond-a-reasonable-doubt burden of

proof, when reviewing the legal sufficiency of the evidence, we must assess all the

evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could find, beyond a reasonable doubt, the elements required

for commitment under the statute. In re Commitment of Mullens, 92 S.W.3d 881,

885 (Tex. App.—Beaumont 2002, pet. denied); see also In re Commitment of

                                        11
Brown, No. 09-10-00589-CV, 2012 WL 4466348, at *1 (Tex. App.—Beaumont

Sept. 27, 2012, pet. denied) (mem. op.). The trier of fact, not the appellate court,

fairly resolves conflicts in the testimony, weighs the evidence, and draws

reasonable inferences from basic facts to ultimate facts. Mullens, 92 S.W.3d at

887; Myers, 350 S.W.3d at 130.         In a factual sufficiency review of a SVP

commitment case, we must weigh the evidence to determine whether a verdict that

is supported by legally sufficient evidence nevertheless reflects a risk of injustice

that compels ordering a new trial. In re Commitment of Day, 342 S.W.3d 193, 213

(Tex. App.—Beaumont 2011, pet. denied); Myers, 350 S.W.3d at 130.

      ―[P]roof of serious difficulty in controlling behavior‖ is required in order to

civilly commit a defendant under a SVP statute. See Kansas v. Crane, 534 U.S.

407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); see also Almaguer, 117

S.W.3d at 505. The inability to control behavior ―‗must be sufficient to distinguish

the dangerous sexual offender whose serious mental illness, abnormality, or

disorder subjects him to civil commitment from the dangerous but typical recidivist

convicted in an ordinary criminal case.‘‖ See Almaguer, 117 S.W.3d at 504

(quoting Kansas, 534 U.S. at 413).          Smith argues the evidence is legally

insufficient to show that he has serious difficulty controlling his behavior, such that

he displays an emotional or volitional impairment. He complains the diagnostic

                                          12
criteria described by the State‘s testifying psychiatrist, Dr. Michael Arambula, do

not relate to a person‘s ability to control his behavior, and the high risk of

recidivism indicated by the actuarial instruments applied by the State‘s testifying

psychologist, Dr. Jason Dunham, fail to distinguish Smith from a ―‗dangerous but

typical recidivist‘‖ as opposed to a sexually violent predator.

      Dr. Jason Dunham, a forensic psychologist, testified that Smith ―suffers

from sexual deviance as well as a psychopathic personality disorder[]‖ that place

him at high risk to commit a sexual offense. According to Dr. Dunham, Smith‘s

behavioral abnormality was revealed through his commission of sexual assaults

while living in the community and by his continued victimization of women while

he was imprisoned by repeatedly exposing himself and masturbating in front of

female guards. While serving his prison sentence for the sexual assaults, Smith was

disciplined thirty-one times for ―masturbating toward female correction officers . .

. so that the officer sees it.‖ That behavior is a criminal offense, indecent exposure.

Smith offended against approximately twenty different victims in five prison units,

with incidents recorded in 1996, 1997, 2003, 2004, 2007, and the most recent

having occurred in 2010, approximately one year before the trial. In Dr. Dunham‘s

opinion, Smith‘s behavior in prison shows he has difficulty controlling his

behavior.

                                          13
      Dr. Michael Arambula, a forensic psychiatrist, testified that in determining

whether a person has a behavioral abnormality it is important to look at how the

person adjusts in prison. A person‘s failure to conform his behavior in the

structured prison environment indicates his behavior will be worse in an

environment lacking external controls. Smith‘s sexually aggressive actions toward

female correction officers over a long period of time indicate his sexual deviance

has been present for many years. Dr. Arambula stated that Smith‘s behavior while

in prison showed that he has had difficulty controlling his behavior. In Dr.

Arambula‘s opinion, Smith has a behavioral abnormality that affects his volitional

or emotional capacity that predisposes him to commit a sexually violent offense to

the extent that he is a menace to the health and safety of another person.

      Smith argues that that ―[a]t most, the State‘s evidence showed that Appellant

committed two rapes in the past and that there is a decent chance that he will do it

again.‖ ―Serious difficulty controlling behavior can be inferred from an

individual‘s past behavior, his own testimony, and the experts‘ testimony.‖ In re

Commitment of Washington, No. 09-11-00658-CV, 2013 WL 2732569, at *6 (Tex.

App.—Beaumont June 13, 2013, no pet. h.) (mem. op.). The jury could accept as

credible the experts‘ testimony that Smith‘s sexual offenses and his behavior in

prison demonstrate that he has serious difficulty controlling his behavior. Viewing

                                         14
the evidence in the light most favorable to the jury‘s verdict, a rational jury could

have found beyond a reasonable doubt that Smith has a behavioral abnormality that

makes him likely to commit a predatory act of sexual violence. See Mullens, 92

S.W.3d at 887.

      Smith argues the evidence is factually insufficient because Dr. Dunham

stated the actuarial tests placed Smith at a high risk of recidivism but when the

evidence is viewed in a neutral light Dr. Dunham could not demonstrate that

Smith‘s risk is due to a lack of control. During cross-examination, Dr. Dunham

conceded that the diagnostic manual states that no diagnosis in and of itself

indicates whether a person will be able to control future behavior. He also stated

that the actuarial tests are not designed to account for a person‘s ability to follow

rules, but Dr. Dunham added that because disciplinary history and commission of

sexual offenses in prison are indexed, the actuarial tests could be used for that

purpose.   Moreover, Dr. Dunham explained how Smith‘s offenses and prison

behavior supported the high risk of recidivism reflected in his application of the

actuarial instruments. Weighing all the evidence, the verdict does not reflect a risk

of injustice that would compel ordering a new trial. See Day, 342 S.W.3d at 213.

We overrule issues four and five.




                                         15
                        CONSTITUTIONAL CHALLENGE

      In a supplemental issue added after initial briefing in this appeal. Smith

contends that ―[t]he Texas Supreme Court‘s recent construction of the SVP civil

commitment statute renders the statute facially unconstitutional under the

Fourteenth Amendment‘s due process clause.‖ Smith argues the Texas Supreme

Court ―has essentially eliminated the requirement of a mental illness[]‖ in a civil

commitment case. See generally Bohannan, 388 S.W.3d at 306 (addressing the

relevance of a ―medical diagnosis‖ in determining whether a person is a sexually

violent predator). The United States Supreme Court denied Bohannan‘s petition for

certiorari after Smith filed his supplemental brief. See Bohannan, 81 U.S.L.W.

3658. Rejecting similar interpretations of Bohannan in other civil commitment

cases, this Court has held ―the Supreme Court in Bohannan did not ‗change the

statute or render it unconstitutional.‘‖ Washington, 2013 WL 2732569, at *1

(quoting In re Commitment of Anderson, 392 S.W.3d 878, 885 (Tex. App.—

Beaumont 2013, pet. denied)). We overrule Smith‘s supplemental issue and affirm

the trial court‘s judgment.

      AFFIRMED.




                                        16
                                            ________________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on March 19, 2013
Opinion Delivered August 15, 2013

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




                                       17
