                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00358-CV
                            ____________________

          IN RE COMMITMENT OF RICHARD WILLIS BUTLER


_______________________________________________________             ______________


                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-11-12505-CV
________________________________________________________             _____________


                          MEMORANDUM OPINION

      A jury found appellant Richard Willis Butler (“Butler”) to be a sexually

violent predator, and the trial court rendered a final judgment with an order of civil

commitment. See Tex. Health & Safety Code Ann. §§ 841.001-841.151 (West

2010 & Supp. 2013) (“SVP” statute). As defined by the Legislature, a sexually

violent predator is 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) (West Supp. 2013). A person is

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a “repeat sexually violent offender” for purposes of the SVP statute if the person is

convicted of more than one sexually violent offense, and a sentence is imposed for

at least one of the offenses. Id. § 841.003(b) (West Supp. 2013). A “sexually

violent offense” includes, among other offenses, indecency with a child. See id. §

841.002(8)(A) (West Supp. 2013); Tex. Penal Code Ann. § 21.11 (West 2011). 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.” Tex. Health & Safety Code Ann. §

841.002(2) (West Supp. 2013).

      On appeal, Butler raises three issues. First, he contends the trial court

committed reversible error in refusing to allow him leave of court to file a third-

party petition against the Office of Violent Sex Offender Management (OVSOM).

Second, he argues that the trial court committed reversible error by failing to allow

his attorney to perform a complete cross-examination of Dr. Gaines about her “rate

of error.” In his third issue, he argues that the SVP statute is facially

unconstitutional. We conclude that Butler’s issues are without merit, and we affirm

the trial court’s judgment.




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                               UNDERLYING FACTS

      Butler was previously convicted of three separate offenses of indecency with

three different children. The first offense for which he was convicted occurred in

1982 when he was seventeen and the victim was seven. Butler testified at trial that

he saw the seven-year-old girl around his apartment complex and at the pool. He

went up to her apartment while no one else was home, and fondled her, touched

her genitals with his hand, and performed oral sex on her. He received a three year

sentence for his first conviction, and he was released April 3, 1984, on mandatory

supervision.

      Butler committed the second sexual offense on April 25, 1984, just twenty-

two days after his release from prison for the first offense. His second victim was

an eleven-year-old girl. Butler met the girl when he was jogging at a middle

school. He had been instructed to stay away from those areas as a condition of his

parole. While he was on school property, he touched the child on the breasts and

buttocks. Butler pleaded guilty to indecency with a child, and he was sentenced in

1984 to ten years confinement. He was released on mandatory supervision in

December 1989.

      Once released, Butler again began “hanging around” a recreational center

and young children. While at the recreational center, he touched another eleven-

                                        3
year-old girl. He was indicted and pleaded guilty to indecency with a child. The

indictment alleged he touched the eleven-year-old girl’s genitals and breasts with

the intent to arouse and gratify his sexual desire. This was his third conviction for

indecency with a child by contact. Butler was sentenced to twenty-five years in

prison for the third offense and he was scheduled to be released on mandatory

supervision for that offense in August of 2013. Butler admitted that while he was

in prison he had 150 disciplinaries, and 23 of those write-ups were for sexual

misconduct.

      The State’s expert, Dr. Sheri Gaines, M.D., a board-certified psychiatrist

with training in forensic psychiatry, testified that she reviewed Butler’s records

(including the files relating to the criminal offenses) and the evaluation by the

psychologist, Dr. Woodrick. Gaines also interviewed Butler and reviewed his

deposition. She testified that Butler’s “sexual deviancy is a diagnosis of pedophilia,

which is sexual urges, acts, or behaviors toward prepubescent children.” Gaines

explained that Butler’s pedophilia is a “chronic, lifelong condition.” She also

diagnosed Butler with “antisocial personality disorder.”

      In Gaines’s professional opinion, Butler has a behavioral abnormality. In

response to the State’s questioning, she further indicated that Butler has a

“behavioral abnormality today[,]” a conclusion which she reached by reviewing

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records showing Butler’s “behaviors over time” and “by looking at risk factors

over time[.]” She noted that Dr. Woodrick diagnosed Butler as a psychopath.

Gaines concurred with that diagnosis, because Butler has a history of violence, has

difficulty controlling his anger, and has a “lifelong” problem conforming his

behavior even when he is in a structured environment.

      Dr. Gaines referenced two important factors that contribute to the risk that

Butler will reoffend with crimes of sexual violence: his sexual deviancy and his

antisocial personality disorder. Other risk factors identified by Gaines include the

three prior convictions for sexually violent offenses, other allegations regarding

Butler’s following of children around in the neighborhood, allegations of sexually

acting out as a child even before his first conviction, assaulting one or more of his

victims in a public place, selection of unrelated and stranger victims, reoffending

shortly after being released from prison on parole, and blaming his victims for his

behavior.

      Dr. Gaines also recognized that Butler has exhibited certain positive factors,

such as completion of an anger management course, finding “religion” while he

was in prison, and the continued support from his mother. However, Dr. Gaines

noted that even after Butler completed the anger management course, he

committed “staff assaults” on prison officials, has been in administrative

                                         5
segregation in prison, and has committed sexual offenses in prison even after he

“found religion” and after he received some counseling. According to Dr. Gaines,

Butler admitted he has trouble controlling his sexual urges, and he continues to

blame his victims.

           REFUSAL TO ALLOW THIRD-PARTY CLAIM AGAINST OVSOM

      In his first issue, Butler contends the trial court erred in refusing to allow

him leave of court to file a “third-party petition” against OVSOM. OVSOM is a

state agency that “perform[s] appropriate functions related to the sex offender civil

commitment program provided under Chapter 841, Health and Safety Code,

including functions related to the provision of treatment and supervision to civilly

committed sex offenders.” Tex. Gov’t Code Ann. § 420A.010 (West 2012).

      Butler’s proposed third-party petition, which seeks a declaratory judgment

and injunctive relief against OVSOM, alleges that OVSOM requires offenders

committed under Chapter 841 to reside in “secure residential facilities,” to adhere

to standards that are vague, and to be subject to a commitment statute that is

punitive. At the pretrial hearing on his motion for leave to file the third-party

petition, Butler argued that he needed to sue OVSOM, because “[i]n order to

contest the [c]onstitutionality of the statute we need to have the agency responsible

for administering the statute. So that makes them an indispensable party. . . .”


                                         6
Butler in effect argues that the SVP statute is punitive in nature and

unconstitutional, as more fully reflected in his third issue. The trial court denied the

motion and concluded that an independent suit against OVSOM would be

premature.

      On appeal, Butler argues that the trial court misapplied the law and erred in

refusing to allow him to file his third-party petition. He contends that his position

is supported by the “findings” which the Texas Supreme Court made in In re

Commitment of Fisher, 164 S.W.3d 637, 656 (Tex. 2005). Specifically, Butler

points to the statement in Fisher that “[h]ad Fisher so requested, it is possible that

the trial court would have modified or removed some of the contract conditions of

which he now complains.” Id. In Fisher, the Court suggested the possibility of

modification of the conditions even though OVSOM was not joined as a party. See

id. The Court further noted that Fisher could not obtain any removal or

modification of the conditions or a determination of vagueness of those conditions,

because he did not present such a request to the trial court. Id. It is clear that the

Supreme Court was specifically referencing Fisher’s challenges to certain

provisions of the trial court’s post-trial commitment order and “Treatment and

Supervision Contract” which was “appended” to the judgment that found Fisher to




                                           7
be a sexually violent predator. Id. Therefore, Butler has misconstrued the language

in Fisher.

      At the stage of the proceeding in which Butler was attempting to assert his

third-party claim, he had not yet been subjected to any commitment order, and the

questions surrounding the OVSOM terms of commitment were not at issue.

Moreover, this Court has previously examined and rejected the argument regarding

the refusal of the trial court to require joinder of OVSOM. See In re Commitment

of Dodson, 434 S W 3d 742 (Tex. App.—Beaumont May 29, 2014, pet filed.) (“[I]t

does not appear that OVSOM would be a proper party to a proceeding that

addressed the claims in Dodson’s counterclaim, as the SVP statute does not contain

a provision waiving OVSOM’s governmental immunity.”); see also Tex. Health &

Safety Code Ann. §§ 841.001-841.151. Likewise, the respective chapter of the

Government Code pertaining to OVSOM does not contain a provision waiving

sovereign immunity. See Tex. Gov’t Code Ann. §§ 420A.001-420A.011 (West

2012).

      Butler claims, based on alleged comments from the trial court at certain

hearings in this case and a comment made in another commitment case, that he

must add OVSOM as a party in order to challenge the constitutionality of Chapter

841. The constitutionality of various sections of Chapter 841 has been repeatedly

                                        8
challenged, and no section to date has been declared unconstitutional. See, e.g., In

re Commitment of Fisher, 164 S.W.3d 637; Beasley v. Molett, 95 S.W.3d 590 (Tex.

App.—Beaumont 2002, pet. denied); In re Commitment of Mullens, 92 S.W.3d 881

(Tex. App.—Beaumont 2002, pet. denied). The courts have not held that OVSOM

is an indispensable party in a constitutional challenge in this context. Accordingly,

we conclude that the trial court did not abuse its discretion in refusing to grant

Butler leave to file the third-party petition against OVSOM. The trial court could

have reasonably concluded that OVSOM was not a proper party to this suit, and

OVSOM’s presence in the suit--the actual purpose of which was to establish

whether or not Butler is a sexually violent predator--would not promote an orderly

presentation of the commitment proceeding. Accordingly, we overrule issue one.

                       LIMITATION OF CROSS-EXAMINATION

      In his second issue, Butler argues that the trial court erred in denying him the

right to engage in further cross-examination of Dr. Gaines relating to her “rate of

error” in SVP cases. We review a trial court’s decision concerning the admission

or exclusion of evidence for an abuse of discretion. City of Brownsville v.

Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion if it

acts without reference to guiding rules and principles, or if it acts arbitrarily and

unreasonably. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558


                                          9
(Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). If we find the trial court erred, we will reverse a judgment only if the

trial court’s error probably caused the rendition of an improper judgment or

probably prevented the appellant from properly presenting the case on appeal. See

Tex. R. App. P. 44.1(a).

      Under Rule 611(b) of the Texas Rules of Evidence, counsel may be allowed

to cross-examine a witness on any matter relevant to any issue in the case,

including credibility. Tex. R. Evid. 611(b); In re Commitment of Ramirez, No. 09-

13-00176-CV, 2013 WL 5658597, at *4 (Tex. App.—Beaumont Oct. 17, 2013, no

pet.) (mem. op.). The trial court, however, has discretion to impose limitations on

the examination of witnesses. See Tex. R. Evid. 611(a) (“The court shall exercise

reasonable control over the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and presentation effective

for the ascertainment of the truth, (2) avoid needless consumption of time, and (3)

protect witnesses from harassment or undue embarrassment.”); see also In re

Commitment of Campbell, No. 09-11-00407-CV, 2012 WL 2451620, at **6-7

(Tex. App.—Beaumont June 28, 2012, pet. denied) (mem. op.).

      Furthermore, under Rule 403 of the Texas Rules of Evidence, a trial court

may exclude even relevant evidence if its probative value is substantially

                                         10
outweighed by the danger of “unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.” Tex. R. Evid. 403; State v. Malone Serv. Co., 829 S.W.2d

763, 767 (Tex. 1992). In applying Rule 403 in In re Commitment of Alexander, No.

09-11-00650-CV, 2013 WL 5425557, at **4-6 (Tex. App.—Beaumont Sept. 26,

2013, pet. denied) (mem. op.), we noted the potential for confusion of the jury in

the event that cross-examination questions concerning the expert’s rate of error in

the SVP context were permitted. We concluded that the trial court did not abuse its

discretion in restricting questions regarding the expert’s rate of error, because the

expert was not making a prediction as to whether the defendant would commit a

future act of sexual violence; rather the expert was assessing a present risk that was

based on the defendant’s history, his actuarial tests, and his interview. Id. at *5.

      During cross-examination, Butler’s trial counsel asked Dr. Gaines the

following questions:

      [Defense Counsel]: Q. Dr. Gaines, are you aware of your rate of error
      in these cases?
      A. I don’t understand the question.
      Q. Are you aware of your accuracy rate in these cases?
      A. Well, I still don’t understand the question, because you can’t
      evaluate someone’s accuracy when they’re just giving an opinion. I
      am not predicting the future. I am not saying: Oh, yes, Mr. Butler is
      absolutely 100 percent going to reoffend. So I don’t think that’s even
      a valid question.

                                          11
      Q. How many times have you stated that someone will commit an act
      of sexual violence and they actually have went on to commit another
      act of sexual violence?
      [Prosecutor]: Objection, misleading.
      THE COURT: Sustained.

Thereafter, Butler made the following offer of proof:

      [Defense Counsel]: Q. Dr. Gaines, do you know what your rate of
      error is?
      A. I think I already asked (sic) that question. And--I already answered
      that question. I think it’s an invalid question because I’m not making a
      prediction. I’m not saying that something is going to happen. I’m
      saying that something is likely to happen.
      Q. Is that a “no,” that you don’t know what your rate [of] error is?
      A. It’s not a “yes” or a “no.” I’m saying that, in my opinion, it’s an
      invalid question because I’m not making a prediction.
      Q. Would it surprise you that none of the people you stated was likely
      to commit another act of sexual violence has never gone on to commit
      another act of sexual violence?
      A. It would not surprise me at all because that is the exact reason the
      Legislature made this statute, to keep that from happening. So it
      would lead me to believe that the statute is effective.

            ....

      [STATE]: If those questions are asked in front of the jury, I think we
      need the opportunity . . . I think the door has been opened. We can
      present evidence about the conditions of civil commitment and why
      no one has reoffended and that they’re mandated to go to treatment
      and they live in a structured setting and that sort of thing. I think . . .
      the jury is entitled to have a full picture or we just don’t go down this
      road at all.

      THE COURT: . . . [I]t’s just misleading, asking has anybody ever . . .
      offended, because we’re all sitting here knowing why that hasn’t
      happened. So if we’re going to sit here and know why that hasn’t
      been, that jury over there needs to know why it hasn’t happened;
                                          12
      because, otherwise, you’re making Dr. Gaines look like she’s, you
      know, not doing a good job. And we don’t know whether she did a
      good job or not because we never know if these people are going to
      reoffend.

Butler requested that the testimony he obtained in the offer of proof be provided to

the jury, but the trial court denied the request. The trial court concluded that the

objected-to question was “misleading,” because the question failed to give the jury

the complete picture as to why a person who has been civilly committed may not

have reoffended.

      The issue the jury was required to decide was whether Butler is a repeat

sexually violent offender who presently suffers from a behavioral abnormality that

makes him likely to engage in predatory acts of sexual violence. See Tex. Health &

Safety Code Ann. §§ 841.002(2), 841.003(a); § 841.062(a) (West 2010). For the

reasons stated in In re Commitment of Alexander and the applicable factors stated

in Rule 403 (danger of confusion of the issues or of misleading the jury), we

conclude that the trial court did not abuse its discretion in excluding the additional

“rate of error” cross-examination questions that Butler sought to elicit from Dr.

Gaines. The limitation that the trial court placed upon the cross-examination was

not arbitrary or unreasonable. We overrule issue two.




                                         13
                     FACIAL CONSTITUTIONALITY CHALLENGE

      Butler argues in his final issue that “[s]ection 841 of the Texas Health &

Safety Code is unconstitutional on its face[.]” However, Butler fails to specify

which sections of Chapter 841 are unconstitutional and which constitutional rights

have been violated. He disagrees with the Texas Supreme Court in In re

Commitment of Fisher where the Court states that the Texas SVP statute “imposes

no physical restraint and therefore ‘does not resemble the punishment of

imprisonment, which is the paradigmatic affirmative disability or restraint.’” In re

Commitment of Fisher, 164 S.W.3d at 648 (quoting Smith v. Doe, 538 U.S. 84, 100

(2003)). Butler asserts that the Texas Supreme Court is “operating under a severe

misconception regarding civil commitment in Texas.” He argues that the Texas

SVP statute is “punitive” and, therefore, the entire statute is facially

unconstitutional. We have previously rejected this argument and held in Beasely,

95 S.W.3d at 607-08, that Chapter 841 is not punitive in nature. See also In re

Commitment of Fisher, 164 S.W.3d at 645-56. Additionally, this Court recently

examined and rejected a similar constitutional challenge to the SVP statute in In re

Commitment of Dodson, 434 S W 3d at 742 (noting that the Texas Supreme Court

rejected the argument that the SVP statute is punitive in nature in In re

Commitment of Fisher). We note that Dodson also stated:


                                        14
             In Fisher, the Texas Supreme Court concluded that the types of
      restrictions at issue were not necessarily evidence showing that the
      statute was punitive in nature. If the restrictions themselves are not
      necessarily punitive in nature, then their application to a person who is
      committed is also not necessarily evidence that the restrictions have
      been punitively applied. Id. at 648 (reasoning that the SVP statute’s
      creating restraints, such as requiring persons to reside at particular
      locations, to be fitted for satellite monitoring, and to be restricted in a
      host of activities, did not “compel a conclusion that the statute is
      punitive”). We are bound to follow Fisher until the Texas Supreme
      Court instructs otherwise. See Lubbock Cnty., Tex. v. Trammel's
      Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the
      function of a court of appeals to abrogate or modify established
      precedent.”).

In re Commitment of Dodson, 434 S W 3d at ___. We overrule Butler’s facial

constitutional challenge. He has failed to demonstrate, as he must, that the statute

always operates unconstitutionally. Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex.

1999); see also In re Commitment of Fisher, 164 S.W.3d at 654-55. Having

overruled each of Butler’s issues, we affirm the trial court’s judgment.

      AFFIRMED.



                                               ______________________________
                                                     LEANNE JOHNSON
                                                           Justice

Submitted on July 7, 2014
Opinion Delivered September 4, 2014

Before Kreger, Horton, and Johnson, JJ.

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