Opinion issued October 10, 2013.




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                         ————————————
                           NO. 01-13-00297-CR
                         ———————————
                    PATRICK MICHAELS, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 435th District Court
                        Montgomery County, Texas
                  Trial Court Cause No. 13-02-01755-CR
                         MEMORANDUM OPINION

      In 2002, a court issued a civil commitment order after it found Patrick

Michaels to be a sexually violent predator. Trial courts reviewed and modified the

order each biennium. In 2013, a jury found Michaels guilty of violating the terms

of the applicable order. The trial court assessed Michaels’ punishment at twenty

years’ confinement. On appeal, Michaels contends that the trial court erred in

admitting evidence of: 1) supervision requirements for his treatment program;

2) his absence without leave from the U.S. Air Force; and 3) orders modifying the

terms of his civil commitment.       He further contends that the evidence is

insufficient to support the verdict because the State failed to establish proper

venue. Finding no reversible error, we affirm.

                                  Background

      In April 2002, a trial court adjudicated Michaels to be a sexually violent

predator, and it ordered him civilly committed under Chapter 841 of the Texas

Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 841.081 (West

2010). Pursuant to that order, the trial court reviewed Michaels’ status biennially

to determine whether it should modify or terminate his commitment. The order

required that Michaels attend and complete a sexually violent predator treatment

program.   In July 2012, the supervisors at the treatment program discharged

Michaels, because he did not comply with a number of the program’s


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requirements. The State subsequently indicted Michaels for violating the civil

commitment order.

                                     Discussion

   I.      Admission of evidence.

        We first examine Michaels’ challenges to the trial court’s evidentiary

rulings.

        Standard of review

        We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its

discretion if some evidence supports its decision. See Osbourn v. State, 92 S.W.3d

531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it

was correct on any theory of law applicable to the case. See De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

        Supervision requirements

        The trial court admitted, as business records, documents outlining the

requirements of Michaels’ treatment program. Billy Barnes, Michaels’ treatment

supervisor, testified that the treatment facility kept records reflecting that Michaels


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had been instructed about, and was aware of, the requirements of his treatment

program.   Barnes explained the rules to Michaels, and Michaels signed an

acknowledgement that he was aware of them. Barnes conceded that he was aware

that the supervision requirements could be a subject of litigation and that the

documents might be used in a prosecution.

      Michaels objects that these records were created in anticipation of litigation,

thus arguing that they are hearsay not admissible under the business records

exception. See TEX. R. EVID. 803(6). He relies on Palmer v. Hoffman, in which

the United States Supreme Court held that an investigative report about a train

accident by the company that operated the train was prepared in anticipation of

litigation and therefore not a business record. Palmer v. Hoffman, 318 U.S. 109,

115, 63 S. Ct. 477, 481 (1943). He also cites Dixon v. State, in which the San

Antonio Court of Appeals held that a document listing missing equipment prepared

pursuant to the investigation of lost property was not a business record for

purposes of Rule 803(6). Dixon v. State, 940 S.W.2d 192, 195 (Tex. App.—San

Antonio 1996, no pet.).

      Palmer and Dixon are distinguishable. In contrast to the records in those

cases, the records prepared in this case were created before Michaels violated the

conditions of his civil commitment order. Thus, the records were not the result of

an investigation of an incident or made in anticipation of litigation. Rather, the


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documents were created and kept to advise both Michaels and his supervisor of the

requirements of Michaels’ treatment program required by the civil commitment

order. Accordingly, the trial court was within its discretion to admit the records.

See TEX. R. EVID. 803(6).

      Absenteeism

      Michaels next contends that the trial court erred in allowing testimony that

he went absent without leave from the United States Air Force, because the State

did not notify him of its intent to proffer the evidence, as required by Rule 404(b),

and the evidence is unfairly prejudicial under Rule 403. See TEX R. EVID. 403,

404(b).

      Michaels is correct that Rule 404(b) provides that a defendant should receive

notice of the State’s intent to seek admission of extraneous bad acts, but the

defendant must request such notice before the State is required to give it. See

Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993); see TEX. R. EVID.

404(b).   The record includes no indication that Michaels requested notice of

evidence of extraneous acts that the State planned to introduce; thus, no notice was

required. See Espinosa, 853 S.W.2d at 39.

      Moreover, the State did not offer evidence of Michaels’ absenteeism as

character evidence but rather to prove Michaels’ identity. Michaels’ absenteeism

is the event which led to him changing his name from John Curtis Ball to Patrick


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Michaels.    This evidence is relevant as to Michaels’ identity; thus, it was

admissible to prove identity and not for conformity of character with prior bad

acts. See TEX R. EVID. 404(b).

      Even if evidence is admissible under Rule 404(b), it may be inadmissible

under Rule 403, because its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the jury,

considerations of undue delay, or needless presentation of cumulative evidence.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); TEX. R. EVID. 403.

      Even assuming that the trial court should have limited the evidence to the

name change, and disallowed any discussion that it was precipitated by a military

absence without leave, Texas Rule of Appellate Procedure 44.2(b) states that

non-constitutional error “that does not affect substantial rights must be

disregarded.” TEX. R. APP. P. 44.2(b). The erroneous admission of evidence does

not affect substantial rights “if the appellate court, after examining the record as a

whole, has fair assurance that the error did not influence the jury, or had but a

slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002);

Martinez v. State, No. 01-10-00622-CR, 2011 WL 5026457, at *3 (Tex. App.—

Houston Oct. 20, 2011, pet. ref’d) (mem. op., not designated for publication). In

determining the extent to which the error influenced the jury, we consider the

entire record, the nature of the evidence supporting the verdict, the character of the


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alleged error and its connection with other evidence in the case, and whether the

State emphasized the error. Motilla, 78 S.W.3d at 355-56.

      The State did not emphasize Michaels’ absenteeism and did not draw any

connection between this piece of evidence and any other evidence presented. The

State mentioned Michaels’ absenteeism only once in its closing argument. There is

nothing from the record to suggest that the admission of the evidence of Michaels’

absenteeism had any deleterious effect upon the jury. We hold that any error in the

admission of this evidence was harmless.

      Prior court orders

      Michaels contends that the trial court erred in admitting the orders

modifying the terms of his civil commitment, because he lacked a required notice

before the hearings for those modifications. See TEX. HEALTH & SAFETY CODE

ANN. § 841.082(e) (West 2010) (providing a notice and a hearing to each affected

party when civil commitment orders are modified). He argues that, under Article

38.23(a) of the Code of Criminal Procedure, no evidence obtained in violation of

any state or federal law can be admitted against the accused, and without proper

notice in the earlier proceedings, the orders constitute illegally obtained evidence.

TEX. CODE CRIM. PROC. ANN. Art. 38.23(a) (West 2005). If evidence is obtained

legally, however, then its admission into evidence does not violate Article

38.23(a). Chavez v. State, 9 S.W.3d 817, 820 (Tex. Crim. App. 2000); Johnson v.


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State, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994). But Michaels makes no

showing that the State obtained the modification orders in violation of any state or

federal law. Michaels complains about the procedure in prior proceedings, not

about the manner in which the State obtained this evidence. Accordingly, the trial

court was within its discretion to admit the orders modifying the terms of

Michaels’ civil commitment.

   II.      Legal sufficiency.

         Second, Michaels challenges the trial court’s denial of his motion for a

directed verdict, arguing that his conviction is legally insufficient because the State

failed to produce evidence about the location of the offense.

         Standard of review

         A challenge to the trial court’s ruling on a motion for a directed verdict is a

challenge to the sufficiency of the evidence to support the conviction. Madden v.

State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). We review both legal and

factual sufficiency challenges under the same standard of review. Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational fact-finder could have found each

essential element of the charged offense proven beyond a reasonable doubt. See




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Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

      Analysis

      Article 13.315 of the Code of Criminal Procedure states, “[a]n offense under

Section 841.085, Health and Safety Code, may be prosecuted in the county in

which any element of the offense occurs or in Montgomery County.” TEX. CODE

CRIM. PROC. ANN. Art. 13.315 (West Supp. 2012). Section 841.085 governs the

penalty of sexually violent predators in violation of a civil commitment

requirement. See TEX. HEALTH & SAFETY CODE ANN. § 841.085 (West 2010).

Thus, Montgomery County is a statutorily appropriate venue under § 841.085.

Michaels contends that the witnesses failed to affirm that the offenses occurred in

Montgomery County. However, because Michaels was indicted and tried under

§ 841.085 of the Health and Safety Code, the State did not need to prove that an

element of the offense occurred in Montgomery County as Montgomery County is

a statutorily appropriate venue without regard to the location of the offense.

Accordingly, we hold that the trial court did not err in denying Michaels’ motion

for a directed verdict.




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                                     Conclusion

      We conclude that none of Michaels’ evidentiary challenges warrant

appellate relief. We further conclude that the trial court did not err in denying a

directed verdict based on a challenge to venue in Montgomery County.           We

therefore affirm the judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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