                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00090-CR
                           ____________________

                 MICHAEL WAYNE BOHANNAN, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                        Trial Cause No. 12-10-10953 CR
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Michael Wayne Bohannan, appellant, was indicted for the offense of

violating the terms of his civil commitment as a sexually violent predator. See Tex.

Health & Safety Code Ann. § 841.085 (West 2010). For enhancement purposes,

the indictment included allegations of three prior felony convictions. See Tex.

Penal Code Ann. § 12.42(d) (West 2011). Bohannan entered a plea of not guilty.

The jury found him guilty as charged, found the enhancement paragraphs of the

indictment to be true, and assessed his punishment at imprisonment for life.

                                         1
Bohannan filed a notice of appeal. All of Bohannan’s points of error in his appeal

relate to the effect of the reversal of the judgment in the civil commitment case on

the prosecution of the criminal case.

                                 Issues on Appeal

      Bohannan raises six issues that he phrases as follows:

1. “The Trial Court erred in denying the Motion to Quash and proceeding to trial
when the underlying civil judgment had been reversed and remanded by the Court
of Appeals and that reversal had been upheld by the Supreme Court.”

2. “The Trial Court erred as to the mistake of law defense by denying the Motion
to Quash and by granting the State’s Motion in Limine.”

3. “The Trial Court erred in denying [Bohannan’s] Motions for Continuance for the
purpose of obtaining business records from the electronic monitoring vendor.”

4. “The Trial Court erred in denying [Bohannan’s] requests for the appointment of
an Electronics Expert, Computer Expert, and Investigator and numerous other pro
se motions.”

5. “The Trial Court erred in denying [Bohannan] his right to self-representation
and his motion regarding double jeopardy.”

6. “The Trial Court erred in denying [Bohannan’s] habeas request in proceeding to
trial after the underlying civil commitment had been overturned. The legality of
Appellant’s continued incarceration should be reviewed by the Court of Criminal
Appeals as a collateral review.”

                                 Underlying Facts

      On January 22, 2009, a jury found beyond a reasonable doubt that Bohannan

is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062

                                         2
(West 2010). Accordingly, the trial court signed a judgment of civil commitment

requiring Bohannan to be subject to outpatient treatment and supervision under the

provisions of Chapter 841 of the Health and Safety Code (SVP commitment). See

Tex. Health & Safety Code Ann. § 841.081 (West 2010). Bohannan was

transferred to the supervision of the Council on Sex Offender Treatment, now

known as the Office of Violent Sex Offender Management. See id.; see also Tex.

Health & Safety Code Ann. § 841.002(4) (West Supp. 2014). Under the terms of

the SVP commitment order, Bohannon was required to reside in a residential

facility, comply with the terms the Council (now OVSOM) and case manager

provided to him, and wear a GPS monitor and be subject to monitoring 24 hours a

day. Bohannan filed a notice of appeal to this Court, challenging his SVP

commitment, arguing among other points that the trial court erred in excluding

Bohannan’s expert from testifying at the trial.

      On July 22, 2010, this Court concluded that the trial court erred in excluding

a defense witness and reversed and remanded the SVP case for a new trial. See In

re Commitment of Bohannan, 379 S.W.3d 293, 300 (Tex. App.—Beaumont 2010),

aff’d, 388 S.W.3d 296 (Tex. 2012), cert. denied, 133 S.Ct. 2746 (2013). The State

sought review of this Court’s reversal from the Texas Supreme Court. On August

31, 2012, the Texas Supreme Court affirmed on different grounds than in our

                                          3
Opinion and the SVP case was reversed and remanded to the trial court for a new

trial. Bohannan, 388 S.W.3d at 298, 307. In October of 2012, Bohannan was

indicted in Montgomery County, Texas, for the offense of violating the terms of

his civil commitment as a sexually violent predator. See Tex. Health & Safety

Code Ann. § 841.085. The indictment alleged that from February 14, 2009 to April

24, 2011, Bohannan committed eight separate acts that violated the terms of his

civil commitment. A jury found him guilty as charged in the indictment.

      One of the requirements of Bohannan’s civil commitment was that he

“comply with all written requirements of the Council and case manager[.]” The

written supervision requirements instructed Bohannan to further comply with the

rules, regulations and policies of the community residential facility where he was

allowed to reside. The commitment order required that Bohannan “submit to

tracking under a global positioning satellite (GPS) monitor or other monitoring

system” and “comply with all written monitor system requirements.” The written

instructions regarding the GPS tracking service required Bohannan to submit to

GPS tracking “twenty-four (24) hours per day, seven (7) days per week.” And,

they specifically required Bohannan to place his miniature tracking device (MTD)

in the base unit installed in his residence, upon his arrival at that residence, and to

make no attempt to “prevent the radio frequency electronic monitor, Global

                                          4
Positioning equipment, or any other monitoring system from reporting [his] status

to the monitoring computer.” When the MTD was charging in the base unit in

Bohannan’s residence, he was required to stay in close proximity to the MTD, so

that his ankle bracelet would remain in electronic contact with the MTD. If

Bohannan strayed too far from the MTD, he would cause a “bracelet gone” alert

resulting in immediate notification to Bohannan’s case manager by the monitoring

service. A “bracelet gone” alert was regarded as a violation of the written GPS

monitoring requirements. Bohannan was the subject of five “bracelet gone” alerts

between February 14, 2009, and March 27, 2009. Most of the alerts were of

relatively short duration (one to five minutes), but on March 18, 2009, Bohannan’s

ankle bracelet was out of range of his MTD for a period of seventeen minutes. At

the time, Bohannan admitted that he left the MTD in his room on that date and

went to another part of the facility. The indictment for violating the civil

commitment order alleged all five “bracelet gone” episodes as violations of the

civil commitment order. 1

      On July 22, 2010, this Court issued an opinion reversing the judgment of

civil commitment in Bohannan’s case. See Bohannan, 379 S.W.3d at 293. The

State of Texas sought review of the Court’s decision by the Supreme Court of
      1
       All of the “bracelet gone” alerts involved incidents that occurred prior to
this Court’s July 22, 2010 opinion.
                                        5
Texas. On March 15, 2011, and March 17, 2011, Bohannan refused to sign and

acknowledge written commitment requirements. Bohannan’s refusals to accept and

sign the written conditions of his commitment were also alleged as violations of

the commitment order in the indictment. On April 24, 2011, a halfway-house

dispute about access to Bohannan’s prescription medication escalated into a

disturbance in which Bohannan pounded on a counter, cursed at halfway-house

personnel, and refused to return to his room. Police officers initially responded to

Bohannan’s disturbance and later returned to execute a parole revocation warrant

and take Bohannan to jail. The incident of April 24, 2011, was listed in the

indictment as the final alleged violation of the commitment order.

      The Supreme Court of Texas affirmed the reversal of Bohannan’s civil

commitment judgment in an opinion issued on August 31, 2012. See Bohannan,

388 S.W.3d at 298, 307. No mandate of reversal was issued until January 18, 2013,

shortly before the Supreme Court of the United States denied Bohannan’s petition

for writ of certiorari. See Bohannan, 133 S.Ct. at 2746. In a pre-trial hearing

conducted shortly before beginning jury selection, the trial court denied

Bohannan’s motion to quash the indictment and granted the State’s request for a

motion in limine in the guilt-innocence phase of the trial regarding any reference to

the reversal of the SVP commitment order.

                                         6
                                    Discussion

      In issue one, Bohannan contends the trial court erred in failing to grant

Bohannan’s pre-trial motion to quash the indictment. The sufficiency of an

indictment is a question of law that we review de novo. State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004). However, a motion to quash the indictment must

be filed before the date on which the trial on the merits commences, or the

defendant waives and forfeits the right to object to the defect and he may not raise

the issue on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). Because

Bohannan filed his motion on the first day of trial, he did not preserve error on his

complaint that the trial court failed to quash the indictment. See id. We overrule

issue one.

      Although Bohannan does not present his issue as a challenge to the

sufficiency of the evidence, we note that unless the person affected by the order of

civil commitment is confined by the Texas Department of Criminal Justice or is

receiving inpatient care at a state hospital, an order of civil commitment is

effective immediately on entry of the order. See Tex. Health & Safety Code Ann. §

841.081(a). The civil commitment order was in effect during Bohannan’s appeal

and the reversal of the civil commitment judgment was not enforceable until the

Supreme Court’s mandate issued. See Tex. R. App. P. 65.2.

                                         7
      The State must prove the elements of an offense as they existed on the date

the charged offense was committed. See Ex parte Jimenez, 361 S.W.3d 679, 683

(Tex. Crim. App. 2012). The indictment alleged that Bohannan violated the civil

commitment order on dates when the order was still in effect, and at a time when

Bohannan had the status of a sexually violent predator. Bohannan argues Jimenez

is inapplicable because it concerned the violation of a penal statute. We disagree

because, while it was in effect, the judgment in the civil commitment case was not

less enforceable because it was a judgment in a civil case. It is well established that

a violation of a civil judgment may be punished as criminal contempt even though

the order is set aside on appeal. In re Sheshtawy, 154 S.W.3d 114, 125 (Tex. 2004)

(citing United States v. United Mine Workers of Am., 330 U.S. 258, 294, (1947)).

We overrule issue one.

      In issue two, Bohannan argues that, by not granting his motion to quash and

by granting the State’s motion in limine, the trial court disallowed during the guilt

phase certain evidence concerning the reversal of the judgment of civil

commitment and therefore deprived Bohannan of his mistake-of-law defense on

the violations of the SVP order for those violations that occurred on or about

March 15, 2011, March 17, 2011, and April 24, 2011. See Tex. Penal Code Ann. §

8.03 (West 2011). These three violations occurred after we issued our opinion

                                          8
reversing the SVP order but before the Supreme Court’s mandate issued. See Tex.

R. App. P. 18.1, 65.2.

      The issue of an affirmative defense is not submitted to the jury unless

evidence is admitted supporting the defense. See Tex. Penal Code Ann. § 2.04(c)

(West 2011). Bohannan concedes no evidence was admitted to support his

affirmative defense, but he argues the trial court erroneously excluded his

testimony about his reliance on our opinion reversing the SVP order.

      During the pre-trial hearing, the trial court granted the State’s motion in

limine, which prohibited mentioning the reversal of the SVP judgment without first

taking up the admissibility of the matter with the trial court outside the presence of

the jury. Before jury selection began, defense counsel informed the trial court that

he intended to discuss the reversal of the SVP judgment in order to raise a mistake-

of-law defense. The trial court instructed defense counsel to approach the bench

before mentioning the reversal.

      After the State rested, the defense asked the trial court to grant a motion in

limine prohibiting the State from cross-examining Bohannan about his prior

offenses. The trial court informed the State that it would be allowed to mention the

fact that Bohannan had two prior convictions that caused him to be civilly

committed but would not be allowed to go into the facts. The trial court stated that

                                          9
the State would be allowed to impeach Bohannan regarding convictions that

occurred within ten years of the date of the offense for which he was on trial, but

the State could not go into the underlying facts unless the door was opened. The

trial court stated that it had not decided whether the State could impeach Bohannan

with a 1979 perjury conviction.

      Outside the jury’s presence, Bohannan took the stand to make an offer of

proof. Defense counsel asked Bohannan, “So if allowed to testify on the stand,

what would you testify to?” Bohannan stated, “Well, my initial testimony would be

to the situation with the bracelet gone alarms.” Bohannan described some

documents he received and a parole hearing that was conducted after the reversal

of the civil commitment judgment. The trial court reminded counsel that Bohannan

was free to testify but the court was not going to allow Bohannan to engage in a

narrative if he had chosen not to testify. Bohannan stated that he chose not to

testify because the order prevented him from going into the subjects covered by the

State’s motion in limine. The trial court stated, “I’m not going to make pre-rulings

here and we’re talking outside [the] presence of the jury,” repeated that Bohannan

could testify “under the parameters of this motion in limine[,]” but that if

Bohannan “wants to put this in evidence, he’s got to take the witness stand.” The

defense rested without calling Bohannan as a witness. The State never objected to

                                        10
any of Bohannan’s testimony; consequently, the trial court neither sustained nor

overruled an objection to proffered evidence.

      The trial court did not exclude any testimony by Bohannan. In the absence

of a tender and exclusion of evidence, Bohannan has not preserved an issue on the

exclusion of evidence. See Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim.

App. 1975); see also Yanez v. State, 199 S.W.3d 293, 301-03 (Tex. App.—Corpus

Christi 2006, pet. ref’d) (the trial court may defer ruling on a pre-trial motion on

admissibility of testimony until the witness testifies). Preservation of error requires

an offer by the defendant, an objection by the State, and a ruling from the trial

court. See Fuller v. State, 827 S.W.2d 919, 929 (Tex. Crim. App. 1992) (“Though

admittedly he may have been in something of a quandary, with the trial court

announcing that it had seemingly decided that certain evidence was not going to be

admissible prior to it even being offered, such did not absolve appellant of the

responsibility to at least offer the evidence at some point during the trial on the

merits if he wanted it presented before the jury. Because appellant never sought to

introduce the evidence at trial, the trial court did not ever exclude it therefrom.”);

Ites v. State, 923 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1996, pet.

ref’d) (holding no error preserved, notwithstanding bill of exceptions, where the

proponent did not proffer the evidence, the opponent did not object to the evidence,

                                          11
and the trial court did not rule that it would be excluded); Giesberg v. State, 945

S.W.2d 120, 128 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 984 S.W.2d 245

(Tex. Crim. App. 1998) (holding that, although he made a bill of exceptions, the

defendant failed to preserve error because the record did not show the nature of the

State’s objection to the evidence included in the bill). We overrule issue two.

      In issue three, Bohannan complains of the denial of the motion for

continuance that he filed on the day of trial. The denial of a motion for continuance

is within the discretion of the trial court. Renteria v. State, 206 S.W.3d 689, 699

(Tex. Crim. App. 2006). To establish an abuse of discretion, the defendant must

demonstrate specific prejudice arising from counsel’s inadequate preparation time.

Heiselbetz v. State, 906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995).

      Bohannan argues that a continuance was necessary to obtain a complete

copy of the GPS records, in addition to previously-produced records that showed

only the “bracelet gone” alerts. During the hearing on the motion for continuance,

however, defense counsel stated that he received the records that he needed the

Friday before the trial. In his brief, Bohannan argues the trial court abused its

discretion because defense counsel required additional time to examine and test the

equipment used to monitor Bohannan’s whereabouts. Four days before the trial

started, Bohannan filed a motion for production for expert evaluation of all alarms

                                         12
generated by the GPS equipment and a chronological plotting of the tracking

points generated by the electronic monitoring equipment on eleven specific dates.

However, defense counsel never suggested that he required additional time to

examine and test the GPS monitor in either the written motion for continuance or

during his presentation of that motion to the trial court. Additionally, the record

fails to demonstrate specific prejudice to counsel’s ability to prepare for trial

resulting from trying the case the week after counsel received additional records

concerning the GPS monitor. Heiselbetz, 906 S.W.2d at 511-12. Therefore, we

overrule issue three.

      In issue four, Bohannan contends the trial court erred in denying numerous

motions that Bohannan filed pro se while he was being represented by counsel. A

defendant has no right to hybrid representation; consequently, the trial court is free

to disregard any pro se motions presented by a defendant who is represented by

counsel. Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); see also

Ex parte Bohannan, 350 S.W.3d 116, 117 n.1 (Tex. Crim. App. 2011)

(disregarding pro se motions filed by Bohannan while he was being represented by

counsel in a post-conviction habeas proceeding); In re Bohannan, No. 09-12-

00473-CR, 2012 WL 5519206, at *1 (Tex. App.–Beaumont Nov. 14, 2012, orig.

proceeding) (mem. op., not designated for publication) (denying mandamus

                                         13
petition seeking to compel the trial court to rule on a pro se motion presented in a

pre-trial habeas proceeding in which the trial court appointed counsel); In re

Bohannan, No. 09-11-00684-CR, 2011 WL 6747468 (Tex. App.–Beaumont Dec.

21, 2011, orig. proceeding) (mem. op., not designated for publication) (denying

mandamus petition seeking to compel trial court to rule on pro se motions filed in

the criminal case while Bohannan was represented by appointed counsel). We

overrule issue four.

      In issue five, Bohannan claims a violation of his right of self-representation.

See Faretta v. California, 422 U.S. 806, 834 (1975). The right of self-

representation does not attach until it has been clearly and unequivocally asserted.

Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). A request for,

or assertion of, hybrid representation is not an unequivocal request for self-

representation. Saldana v. State, 287 S.W.3d 43, 54 (Tex. App.—Corpus Christi

2008, pet. ref’d).

      Bohannan argues that the absence of an application for appointed counsel in

the clerk’s record and the numerous pro se motions establish that he invoked his

right to represent himself. The record includes a letter, dated October 1, 2012, from

Bohannan to the trial court. In the letter, Bohannan refers to trial counsel as “my

currently appointed counsel” and mentions that at that time counsel “had been

                                         14
appointed for over nine weeks” and stated that Bohannan had been informed of the

appointment on July 24, 2012. An attorney request form dated April 27, 2011, and

an order appointing counsel are attached as exhibits to a pro se motion for new

trial. These documents indicate that Bohannan requested or accepted the

appointment of counsel and that he relied upon counsel for his defense to the

criminal prosecution of the alleged violation of the civil commitment order.

      Bohannan accepted representation by counsel, then filed pro se motions

which he argues invoked his right to represent himself. However, the trial court

was not obliged to read Bohannan’s pro se motions. See Robinson, 240 S.W.3d at

922. Additionally, Bohannan did not ask to proceed pro se at any time during the

pretrial hearing and arraignment. See Blankenship v. State, 673 S.W.2d 578, 585

(Tex. Crim. App. 1984) (the right of self-representation must be asserted before the

jury is impanelled). Under these circumstances, we conclude the failure to allow

Bohannan to proceed pro se was not an abuse of the trial court’s discretion. We

overrule issue five.

      In issue six, Bohannan argues that he has been prosecuted illegally for

violating a void judgment. He cites no authority in support of his argument. An

order of civil commitment is effective immediately on entry of the order. See Tex.

Health & Safety Code Ann. § 841.081(a). Our reversal of that order was not

                                        15
effective until January 18, 2013, which is after the dates on which Bohannan

violated the civil commitment order. See Tex. R. App. P. 65.2. Bohannan had the

status of a sexually violent predator when he violated the civil commitment order

and the subsequent reversal of the judgment did not preclude prosecution for a

violation of the order that occurred before the reversal of the trial court’s judgment

became final and the mandate of reversal issued. See Jimenez, 361 S.W.3d at 683;

Sheshtawy, 154 S.W.3d at 125. Accordingly, we overrule issue six. Having

overruled all of Bohannan’s issues, we affirm the trial court’s judgment.

      AFFIRMED.


                                              ________________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on May 1, 2014
Opinion Delivered October 29, 2014
Do Not Publish

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




                                         16
