                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00336-CV
                           ____________________


       IN RE COMMITMENT OF JAMES ANDREW MCCORMACK

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No.14-02-01498 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      James Andrew McCormack challenges his commitment as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2014). In four issues presented for his appeal, McCormack contends the civil

commitment proceeding is barred because the prison system failed to provide

notice of his anticipated release date to the assessment provider within the time

specified by the applicable statute, urges the trial court committed reversible error

by denying McCormack’s request to videotape the post-petition examination

conducted by the State’s expert, challenges the factual sufficiency of the evidence

                                         1
supporting the jury’s verdict, and argues this Court’s decision in In re Commitment

of Richard, No. 09-13-00539-CV, 2014 WL 2931852 (Tex. App.—Beaumont June

26, 2014, pet. denied) (mem. op.), cert. denied, 135 S.Ct. 1747 (U.S. Apr. 6, 2015),

renders Chapter 841 of the Texas Health and Safety Code unconstitutional. We

find that McCormack’s issues are without merit and we affirm the trial court’s

judgment and order of civil commitment.

                              Notice of Anticipated Release

      McCormack contends the State’s petition is barred because the Texas

Department of Corrections gave the multidisciplinary team notice of McCormack’s

anticipated release less than sixteen months before his date of discharge. 1 Section

841.021 provides, in relevant part:

      (a) Before the person’s anticipated release date, the Texas Department
      of Criminal Justice shall give to the multidisciplinary team established
      under Section 841.022 written notice of the anticipated release of a
      person who:
            (1) is serving a sentence for:
                    (A) a sexually violent offense . . . and
            (2) may be a repeat sexually violent offender.

      ….

      1
       The multidisciplinary team assesses whether the person is a repeat sexually
violent offender and whether the person is likely to commit a sexually violent
offense after release or discharge, gives notice of its assessment to the Texas
Department of Criminal Justice, and recommends the assessment of the person for
a behavioral abnormality. See Tex. Health & Safety Code Ann. § 841.022.
                                         2
      (c) The Texas Department of Criminal Justice . . . shall give the notice
      described by Subsection (a) . . . not later than the first day of the 16th
      month before the person’s anticipated release or discharge date, but
      under exigent circumstances may give the notice at any time before
      the anticipated release or discharge date.

Tex. Health & Safety Code Ann. § 841.021(a), (c).

      In his brief on appeal, McCormack argues section 841.021(c) establishes a

mandatory duty for the Texas Department of Criminal Justice (TDCJ) to send

written notice to the multidisciplinary team not later than the first day of the

sixteenth month before his anticipated release or discharge, and he argues that

section 841.021 does not permit the State to pursue a person’s civil commitment

unless exigent circumstances are shown for the TDCJ to give notice to the

multidisciplinary team on a later date. See generally Tex. Health & Safety Code

Ann. § 841.021(c). In its brief on appeal, the State concedes that the notice was

given approximately six months prior to discharge, but argues section 841.1463 of

the Texas Health and Safety Code specifically negates McCormack’s claim that the

State is barred from filing a petition for civil commitment. Tex. Health & Safety

Code Ann. § 841.1463. In his reply brief, McCormack contends the State has

mischaracterized his argument as a jurisdictional challenge.

      McCormack pleaded late notice as an affirmative defense in his first

amended answer. In a motion to strike, the State alleged the new pleading raised a

                                          3
new affirmative defense requiring evidence after the discovery cutoff. The trial

court heard the State’s motion before jury selection commenced. The trial court did

not strike McCormack’s first amended answer. TDCJ’s written notice to the

multidisciplinary team was not offered into evidence during the trial, and

McCormack neither objected to the charge nor requested a submission of a jury

question with regard to the State’s compliance with a statutory notice requirement.

      In his motion for new trial, which was overruled by operation of law,

McCormack alleged:

      This Court erred when it overruled the respondent’s objection to
      petitioner’s failure to comply with Chapter 841.021(c) of the Texas
      Health & Safety Code which requires the Texas Department of
      Criminal Justice or the Department of State Health Services, as
      appropriate, [s]hall give notice described by Subsection (a) or (b) not
      later than the first day of the 16th month before the person’s
      anticipated release or discharge date, but under exigent circumstances
      may give the notice at any time before the anticipated release or
      discharge date.

The objection the trial court considered before trial was the State’s motion to strike

McCormack’s amended answer. Assuming, however, that McCormack’s motion

for new trial was sufficient to raise a complaint regarding the State’s failure to

comply with the time provisions of section 841.021(c), no evidence of the date on

which TDCJ provided written notice to the multidisciplinary team was offered into

evidence during the trial.

                                          4
      McCormack references a letter attached as an exhibit to the State’s petition

for civil commitment. The State filed its petition on February 7, 2014. In its

petition, the State alleged that McCormack was scheduled to be released from

TDCJ’s custody “on or before June 30, 2014.” The State attached a copy of a letter

from a Rehabilitation Programs Division manager, dated January 30, 2014, which

states, “On December 12, 2013, TDCJ gave notice to the multidisciplinary team

(MDT) of the anticipated release of [McCormack] by Discharge on June 30, 2014.

The MDT determined that the offender is a repeat sexually violent offender and is

likely to commit a sexually violent offense after release or discharge . . . .” This

letter was not offered in evidence during the trial. McCormack testified that he

would complete his sentence twenty-seven days after the date of his trial, but the

record of the trial contains no evidence that the required notice was not provided

within the time specified by statute.

      The party asserting an affirmative defense bears the initial burden to plead,

prove, and secure findings on its defense. Woods v. William M. Mercer, Inc., 769

S.W.2d 515, 517 (Tex. 1988) (discussing the affirmative defense of statute of

limitations). “Upon appeal all independent grounds of recovery or of defense not

conclusively established under the evidence and no element of which is submitted

or requested are waived.” Tex. R. Civ. P. 279. Because McCormack failed to

                                         5
submit evidence and secure a finding from the jury on his affirmative defense, he

waived any error. See id. McCormack did not pursue his complaint to an adverse

ruling before the trial court. See Tex. R. App. P. 33.1. We overrule issue one.

                        Request to Videotape Examination

      McCormack contends the trial court committed reversible error when it

refused to allow his examination by the State’s expert to be videotaped. The Texas

Health and Safety Code provides that in a Chapter 841 civil commitment

proceeding “[t]he person and the state are each entitled to an immediate

examination of the person by an expert.” Tex. Health & Safety Code Ann. §

841.061(c). McCormack argues that by refusing his request to videotape his

examination by the State’s expert, the trial court violated McCormack’s statutory

and due process right to cross-examine all witnesses.

      In a recent appeal, we considered the issue of whether the trial court erred in

denying a respondent’s request to videotape his section 841.061(c) examination.

See In re Commitment of Ramsey, No. 09-14-00304-CV, 2015 WL 1360039, at *3-

5 (Tex. App.—Beaumont Mar. 26, 2015, pet. filed) (mem. op.). We held that

section 841.061 does not expressly grant the right to a videotaped mental

evaluation and we concluded that the right to cross-examine witnesses, as provided

in section 841.061, does not include a right to videotape the psychiatric

                                          6
examination. Id. at *4. In Ramsey, we noted that the respondent could have

deposed the State’s expert witness before trial to explore her opinions and

testimony. Id. at *4-5. The respondent in that case chose to cross-examine the

State’s expert at trial. Id. at *5. We rejected the respondent’s argument that

videotaping the examination was necessary to his exercise of his right to cross-

examine the State’s expert because even without the videotape, the respondent

could have (1) identified the inconsistencies he believed to exist, (2) cross-

examined the expert about the questions she asked during her interview, (3) cross-

examined the expert about her testimony regarding the mental evaluation, or (4)

presented his own expert at trial to counter the conclusions presented by the State’s

expert. Id. We noted that the jury heard the expert’s diagnosis of the respondent

and that, based on her training, her experience, the records she reviewed, and her

interview with the respondent, she believes he suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

Id. Given the evidence presented at trial, we concluded the ruling was harmless.

See id.; see also Tex. R. App. P. 44.1.

      McCormack contends that, without a videotaped examination, he was unable

to contradict the State’s psychiatrist, Dr. David Self’s testimony that during the

mental examination, McCormack described grooming and sexually assaulting a

                                          7
particular child. However, the record does not demonstrate that McCormack was

unable to effectively cross-examine Dr. Self. In his trial testimony, McCormack

stated that he told Dr. Self that he was grooming the child by asking “questions to

lead to sex” and that he told Dr. Self about speaking to the child about

McCormack’s vibrator, but McCormack claimed to have no memory of telling Dr.

Self that he propositioned the child. Dr. Self testified that in the course of the

mental examination, McCormack admitted to Dr. Self that McCormack

propositioned the child. Counsel for McCormack cross-examined Dr. Self but did

not ask him any questions about McCormack’s admission to having propositioned

the child. McCormack could have confronted Dr. Self about the discrepancies

between the two witnesses’ accounts of the statements made by McCormack

during the mental examination, but he did not attempt to test Dr. Self’s recollection

concerning their interview.

      The trial court did not deprive McCormack of his right to cross-examine the

State’s witness. Furthermore, we are not persuaded that we misinterpreted section

841.061 of the Texas Health and Safety Code in Ramsey. See 2015 WL 1360039,

at *4. We overrule issue two.




                                         8
                                   Factual Sufficiency

      McCormack contends the evidence is factually insufficient to support the

jury’s verdict that he is a sexually violent predator because the great weight and

preponderance of the evidence supports a finding that McCormack has learned to

control his behavior by learning and internalizing concepts from an informal sex

offender treatment program.

      In the trial of a civil commitment petition filed under Chapter 841 of the

Texas Health and Safety Code, the State must prove, beyond a reasonable doubt,

that the person to be civilly committed is a sexually violent predator. Tex. Health

& Safety Code Ann. § 841.062(a). When we consider an appellate challenge to the

factual sufficiency of the evidence supporting the jury’s finding that a person is a

sexually violent predator, we weigh the evidence to determine “whether a verdict

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

injustice that would compel ordering a new trial.” In re Commitment of Day, 342

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

      A person is a “sexually violent predator” if he is a repeat sexually violent

offender and suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. Tex. Health & Safety Code Ann. §

841.003(a). McCormack does not challenge his status as a repeat sexually violent

                                         9
offender, but he argues that the great weight and preponderance of the evidence

weighs against a finding that he currently suffers from a behavioral abnormality

that makes him likely to engage in a predatory act of sexual violence. A

“‘behavioral abnormality’ means 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). “A condition which affects either emotional capacity or volitional

capacity to the extent a person is predisposed to threaten the health and safety of

others with acts of sexual violence is an abnormality which causes serious

difficulty in behavior control.” In re Commitment of Almaguer, 117 S.W.3d 500,

506 (Tex. App.—Beaumont 2003, pet. denied).

      The State read McCormack’s pre-trial admissions to the jury, including his

admissions to having two convictions for aggravated sexual assault of an eleven-

year-old boy, to being sexually aroused by young boys, to being impulsive, and to

needing sex offender treatment. McCormack admitted that he is sexually aroused

by thinking about giving boys haircuts and continues to struggle with becoming

sexually aroused by giving boys haircuts. In his testimony before the jury,

McCormack admitted that he is a pedophile and that he has a hair fetish. He stated

                                        10
that cutting hair, followed by sexually oriented conversation, was an important step

in molesting a child. While serving his prison term, McCormack requested and

received a work assignment as a barber.

      McCormack stated that he was initially approved for the eighteen-month sex

offender treatment program, but he claimed he signed a document called a “serve-

all” cancelling his participation in sex offender treatment after prison officials

delayed his starting date until it was too late for him to receive eighteen months of

parole for completing the program. McCormack testified that on his own he

participated for six or seven years in a Christian sex offender treatment program

called Freedom Support. McCormack explained that he offended against children

as a way to regain control in his life during a period of marital discord and

financial instability. He understood that his fetish was in some manner connected

to an early childhood experience with his father. According to McCormack, his

pedophilia was an expression of his need for male confirmation and his struggle

with homosexuality. He engaged in a cycle where he attempted to cope with his

frustrations by fantasizing, then acting out. While participating in Freedom

Support, he learned Old Testament imagery and scripture memorization techniques

as aversive therapy to control his neuroses and sexual thoughts. During cross-

examination, McCormack admitted that in his deposition he was asked why he

                                          11
offended against one of his victims and he responded, “‘That’s a good question. I

think I need more therapy on that.’” McCormack explained that he was being

evasive because he was tired at that point in his deposition. He generally refused to

answer questions about uncharged conduct he had admitted to committing in

previous interviews.

      The State presented the expert testimony of Dr. Self, who provided his

professional opinion that McCormack suffers from a behavioral abnormality that

makes him likely to commit a predatory act of sexual violence. According to Dr.

Self, the most prominent risk factors for repeat sexual violence are a history of

deviant sexual interest coupled with a history of criminal sexual activity.

McCormack’s primary sexual deviance issue was pedophilia. Dr. Self stated that

he considers details of the criminal history. A pedophile who prefers male victims

is at the highest risk for re-offending of the entire population of sex offenders, and

McCormack had male victims from age eight to sixteen. For the most part,

McCormack’s victims were not relatives, which places him at greater risk than an

incest perpetrator but at less risk than an offender against total strangers. Also, it

appeared the relationships he developed were for the purpose of victimization.

McCormack was almost sixty-three years old at the time of trial. At that age, the




                                         12
risk of offense diminishes for the entire population, but offending persists the

longest with pedophiles who offend against young boys.

      Dr. Self explained that pedophilia is a chronic condition that can be managed

but not cured. In his opinion, McCormack’s pedophilia is active. Dr. Self had never

heard of the program in which McCormack participated. He observed that after six

years of treatment he would expect McCormack to demonstrate less evasiveness

and better recollection of his sexual offending than he displayed in his trial

testimony. McCormack’s familiarity with sex offender treatment concepts showed

that he had been exposed to those concepts, but in Dr. Self’s opinion, did not

establish that McCormack does not have a behavioral abnormality.

      McCormack argues that Dr. Self’s testimony lacks a sufficient evidentiary

basis because his opinion is based solely upon what Dr. Self described as

McCormack’s inability to accept his problem and internalize the concepts of the

sex offender treatment program. Noting that Dr. Self admitted that McCormack

was able to effectively discuss the sex offender treatment concepts such as thinking

errors and triggers, McCormack argues the jury’s finding that he is a sexually

violent predator is against the great weight and preponderance of the evidence in

light of the evidence presented concerning his progress in sex offender treatment.




                                        13
      Dr. Self did not base his opinion solely upon a failure by McCormack to

accept responsibility for the sexual offenses that he committed. Dr. Self explained

that the important considerations in reaching his opinion that McCormack has a

behavioral abnormality include a history of deviant sexual interest coupled with a

history of criminal sexual activity, and the active presence of a chronic psychiatric

condition, pedophilia. McCormack demonstrated his ability to discuss sex offender

treatment concepts, but Dr. Self detected what he referred to as “cognitive discord”

in McCormack’s impaired recollection about matters that would only hurt his case

and his decision to forego formal sex offender treatment because it would not

benefit him with regard to hastening his release from prison. The evidence that

McCormack has acquired insight into his condition does not compel the conclusion

that he has acquired control over his behavior sufficient to ensure that he will not

recidivate. McCormack did not present testimony from an expert to refute Dr.

Self’s analysis, to provide a psychiatric basis for concluding that a person who is

conversant with sex offender treatment concepts is not likely to engage in a

predatory act of sexual violence, to assess the effectiveness and reliability of

Freedom Support, or to corroborate McCormack’s participation and progress in

Freedom Support. McCormack himself admitted he needs sex offender treatment.




                                         14
      Dr. Self’s opinion testimony represents “a reasoned judgment based upon

established research and techniques for his profession and not the mere ipse dixit of

a credentialed witness.” Day, 342 S.W.3d at 206. The jury, acting in its exclusive

role as the sole judge of the credibility of the witnesses and the weight to be given

their testimony, resolved any conflicts and contradictions in the evidence and

accepted the opinions of the State’s experts. See In re Commitment of Kalati, 370

S.W.3d 435, 439 (Tex. App.—Beaumont 2012, pet. denied). Weighing all of the

evidence, we conclude the verdict does not reflect a risk of injustice that would

compel ordering a new trial. Day, 342 S.W.3d at 213. We overrule issue three.

                           In re Commitment of Richard

      McCormack contends our opinion in In Re Commitment of Richard, 2014

WL 2931852, issued after his trial, retroactively rendered all of Chapter 841 of the

Texas Health and Safety Code facially unconstitutional. Constitutional claims and

challenges to the constitutionality of a state statute must be asserted in the trial

court in order to be raised in the court of appeals. See Tex. Dep’t of Protective &

Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (holding that failure

to assert a constitutional claim in trial court bars appellate review of claim); see

also In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (noting that constitutional

complaints may be waived), cert. denied, 546 U.S. 961 (2005). McCormack does

                                         15
not cite this Court to any place in the record where he made a constitutional

challenge to the statute in the trial court, but he argues that his constitutional claim

is not subject to procedural default because we decided Richard approximately

three weeks after his trial.

      McCormack contends this Court’s reasoning in Richard was contrary to

federal constitutional law, which he argues “clearly requires as a condition of

involuntary civil commitment some type of ‘mental condition’ or ‘ailment of the

mind’ even though a ‘mental illness’ is not required.” See generally Kansas v.

Hendricks, 521 U.S. 346, 358-59 (1997). We previously rejected a facial challenge

to the statute in another appeal that raised the same argument that McCormack

makes in this appeal. See In re Commitment of Lucero, No. 09-14-00157-CV, 2015

WL 474604, at *9-10 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem.

op.). We continue to follow Lucero and decline to revisit our precedent in this case,

where the evidence shows that Dr. Self gave McCormack a diagnosis of pedophilic

disorder, and McCormack admitted he is a pedophile and that he is sexually

aroused by young boys.

      McCormack has not demonstrated on appeal that Chapter 841 of the Texas

Health and Safety Code is unconstitutional. See id. We overrule issue four and

affirm the trial court’s judgment and order of civil commitment.

                                          16
      AFFIRMED.


                                            ________________________________
                                                     CHARLES KREGER
                                                          Justice



Submitted on March 10, 2015
Opinion Delivered June 25, 2015

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




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