                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-13-00130-CV
                          ____________________


        IN RE COMMITMENT OF JEFFERY BRIAN CHAPPELL

_______________________________________________________        ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-05-05202-CV
________________________________________________________        _____________

                         MEMORANDUM OPINION

                             BACKGROUND FACTS

      Jeffery Brian Chappell (“Chappell”) appeals from the judgment and order of

civil commitment rendered by the trial court after a jury found Chappell to be a

“sexually violent predator.” See Tex. Health & Safety Code Ann. § 841.001-

841.151 (West 2010 & Supp. 2013) (“the SVP statute”).




                                       1
      Chappell is a convicted sex offender who is also deaf. 1 The record indicates

that he attended several different schools as a child, that he completed the eighth

grade, that he can read and write the English language, that he can speak some

words on a limited basis, that his preferred means of communication is sign

language, and that his secondary means of communication is by written word.

During each stage of the civil proceeding below, certified sign language

interpreters were utilized at trial to interpret the statements of the trial judge, the

witnesses, and the attorneys, and Chappell was provided his own individual sign

language interpreter to sit with Chappell and assist with communication during the

trial. Furthermore, the trial court granted Chappell’s request for a “real time” court

reporter and transcription of the proceedings.

      Chappell raises three issues on appeal. In his first two issues, he challenges

the legal and factual sufficiency of the evidence. In his third issue, he complains

about the trial court’s pretrial ruling that denied his motion to control the pace of

the questions and answers of the witnesses at trial. In his pretrial motion to control

the pace, Chappell requested that the trial court require a pause after each question

and each answer so that he could then use sign language to confer with his

attorney. We affirm.

      1
          Chappell also lost an arm in an accident when he was nine years old.
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                           THE CRIMINAL CONVICTIONS

      In 1995, Chappell pleaded guilty to, and was convicted of, three counts of

aggravated sexual assault of two children, B.M. and D.G., both under the age of

fourteen. In Chappell’s responses to Requests for Admissions, Chappell also

admitted to another conviction. For each sexual assault, Chappell received a

twenty-year sentence. In 1995, Chappell was also convicted of indecency with a

child by exposure. At the time of the civil commitment trial, Chappell was serving

his twenty-year sentences for the two aggravated sexual assaults.

                                THE SVP STATUTE

      Alleging that Chappell is a “sexually violent predator,” the State instituted

an involuntary civil commitment proceeding. A person is a “sexually violent

predator” subject to commitment if the person: “(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.” Tex. Health & Safety Code

Ann. § 841.003(a) (West 2010). 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.” Id. §

841.002(2) (West Supp. 2013). “A condition which affects either emotional

                                         3
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 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.” Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d

856 (2002).

                          SUFFICIENCY OF THE EVIDENCE

      In his first two issues, Chappell contends there is legally and factually

insufficient evidence to support “the jury’s verdict that [he] currently suffers from

a ‘condition’ or has serious difficulty controlling his behavior.” See In re

Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.

denied) (legal sufficiency standard of review). We disagree.

      Chappell contends Dr. Sheri Gaines, the State’s expert, provided no

scientific basis for her opinion that Chappell currently is displaying symptoms of

pedophilia to the extent he is emotionally or volitionally impaired and likely to

engage in a predatory act of sexual violence. Chappell contends the State failed to

                                         4
prove that he is likely to engage in a predatory act for the primary purpose of

victimization, and that the State failed to meet Kansas v. Crane’s requirement that

the State prove that he is more dangerous than the typical recidivist in an ordinary

case. See Crane, 534 U.S. at 413.

      To prevail on his legal sufficiency issue, Chappell is required to demonstrate

that no evidence supports the jury’s finding. See Croucher v. Croucher, 660

S.W.2d 55, 58 (Tex. 1983); Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868,

873 (Tex. App.—Beaumont 2007, pet. denied). 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) (West 2010). “[T]he

burden of proof at trial necessarily affects appellate review of the evidence.” In the

Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002). Because the SVP statute employs a

beyond-a-reasonable-doubt burden of proof, when reviewing the legal sufficiency

of the evidence, we assess all the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could find, beyond a reasonable

doubt, the elements required for commitment under the SVP statute. In re

Commitment of Mullens, 92 S.W.3d at 885.

      Under a factual sufficiency review, we weigh the evidence to determine

“whether a verdict that is supported by legally sufficient evidence nevertheless

                                          5
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) (factual sufficiency standard of review). Since the State’s burden of proof

in an SVP case is beyond a reasonable doubt, the risk of injustice is necessarily

slight when the evidence admitted at trial is legally sufficient to support the jury’s

verdict. Id. However, “if in the view of the appellate court after weighing the

evidence, the risk of an injustice remains too great to allow the verdict to stand, the

appellate court may grant the defendant a new trial.” Id.

      Chappell testified that he sexually assaulted his live-in girlfriend’s “nine or

ten” year old son, B.M., for over a year. One of the sexual offenses against B.M.

occurred after Chappell attended four to six months of therapy in Houston to deal

with his sexual urges. Chappell also admitted to sexually assaulting D.G., B.M.’s

“eight or nine” year old friend. Chappell further testified he was convicted of

exposing himself to M.M., B.M.’s “[f]ive or six” year old brother. Chappell

acknowledged that in his prior statement to the sheriff’s office he admitted he was

a sex addict and that he had touched ten to fifteen children. During the

commitment trial, Chappell admitted to sexual offenses against several other

children, in addition to those against B.M., M.M., and D.G.




                                          6
      Nevertheless, Chappell testified he does not believe he is a sex offender or

that he needs sex offender treatment. He admitted to receiving approximately

twenty disciplinary write-ups while he was incarcerated (none for sexual

misconduct). During his testimony before the jury and in interviews with the

State’s expert, Chappell blamed the children and victims for the crimes he

committed.

      Dr. Gaines, a forensic psychiatrist, testified for the State. She testified that

Chappell has a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. Dr. Gaines diagnosed Chappell with pedophilia

non-exclusive type and sexual deviancy. According to Dr. Gaines, pedophilia is a

“chronic life-long condition” and “[t]here’s no indication that pedophilia is going

to go away.”

      Dr. Gaines’s methodology involved an analysis and review of Chappell’s

records and an interview with Chappell. She reviewed his statements and

deposition, details of his offenses, victim and witness statements, expert reports

and depositions, and Chappell’s prison records. Dr. Gaines interviewed Chappell

with the assistance of a sign language interpreter. She testified that she and

Chappell were able to communicate effectively through the interpreter.




                                          7
      Dr. Gaines identified Chappell’s risk factors for reoffending as follows: he

is sexually deviant; he has had male and female victims; he performed multiple

acts on each of his victims; he committed the sexual acts against his victims over a

minimum of seventeen years; he sexually offended against at least one victim in a

public restroom; he threatened victims and their family members if they reported

the crimes; he “groomed” his victims; he exhibited a lack of genuine remorse; he

never completed a comprehensive sex offender treatment program; he still blames

his victims; and he has had victims outside of his family. Dr. Gaines recognized

that Chappell had some factors that could be interpreted as positive: his age (62

years old), family support, some income upon release from prison, and a history of

some past employment. Nevertheless, Dr. Gaines indicated that such positive

factors did not outweigh all of the other factors or change her opinion that

Chappell currently suffers from a “behavioral abnormality” that makes him “likely

to commit a predatory act of sexual violence.”

      Dr. Gaines testified that Chappell does not have an understanding of his

offense cycles and triggers, and without that understanding it is unlikely Chappell

will be able to prevent himself from reoffending. She testified that it was

significant that Chappell continues to allege that he was pressured by the children

to sexually offend against them, which is an indication he would be at a high risk

                                         8
for reoffending. Additionally, Dr. Gaines explained that, in determining whether a

person currently has a behavioral abnormality, repetitive and recurrent past

behavior is a good indicator of future behavior.

      Testifying for the defense, Dr. Saunders, a forensic psychologist, explained

he had interviewed Chappell and reviewed records to aid in making a

determination as to whether Chappell suffers from a behavioral abnormality. Dr.

Saunders testified at trial that he felt he was generally able to effectively

communicate with Chappell through the use of an interpreter. Saunders diagnosed

Chappell with pedophilic behaviors in the past with dependent personality features.

      Dr. Saunders testified that Chappell does not currently have a behavioral

abnormality. Saunders explained he based his opinion on a combination of factors:

there is a low risk of reoffending for someone of Chappell’s age; Chappell

acknowledged that his sexual offenses were wrong; Chappell did not report any

deviant sexual arousal to children; Chappell stated he would avoid reoffending;

and Chappell had a favorable institutional adjustment while he was incarcerated.

Saunders testified that Chappell admitted to the offenses of which he was

convicted, but denied any other sexual offenses. Saunders acknowledged he was

unaware that Chappell previously admitted to having touched at least nine other

children, and if that information was true, it could alter his opinion.

                                           9
      Dr. Saunders also indicated he could not say for sure that Chappell would

not sexually reoffend in the future and that there is no one test that can definitively

determine whether a person has a behavioral abnormality. Dr. Saunders agreed that

“pedophilia” was a reasonable diagnosis to make and that the multidisciplinary

team diagnosis was also reasonable. He also agreed that past behavior is a good

predictor of future behavior, and that the details of a person’s prior offenses were

important facts in determining whether the person suffers from a behavioral

abnormality. However, he disagreed with Dr. Gaines’s conclusion that Chappell

currently suffers from a behavioral abnormality. Although the experts reached

different conclusions about Chappell, they employed similar, recognized

methodologies.

      To the extent Chappell now argues on appeal that Dr. Gaines was not

qualified to give her expert opinion in this case, Chappell did not raise that issue at

trial and in fact conceded to the trial court that he “didn’t actually challenge [Dr.

Gaines’s] qualifications to testify.” Therefore, that issue was not preserved for

appellate review. See Tex. R. App. P. 33.1(a).

      Next, the Court rejects Chappell’s argument that the State was required to

establish “victimization” as a separate issue or element. In In re Commitment of

Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681 (Tex. App.—

                                          10
Beaumont June 14, 2012, pet. denied) (mem. op.), we explained that the concept of

“victimization” is implicit in the definition of “behavioral abnormality” and

assumes a victim. See Bernard, 2012 Tex. App. LEXIS 4681, at **6-7. We have

previously explained that the “primary purpose of victimization” is not a specified

element in section 841.003. In re Commitment of Simmons, No. 09-09-00478-CV,

2011 Tex. App. LEXIS 4500, at **1-2 & n.1 (Tex. App.—Beaumont June 16,

2011, no pet.) (mem. op.); In re Commitment of Chapa, No. 09-10-00334-CV,

2011 Tex. App. LEXIS 9798, at *11 (Tex. App.—Beaumont Dec. 15, 2011, no

pet.) (mem. op.). As stated by the Texas Supreme Court, “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.” In re Commitment of

Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133 S.Ct. 2746 (2013)

(quoting Tex. Health & Safety Code Ann. § 841.003(a)(2)).

      In our disposition of issues one and two, we conclude the record contains

legally and factually sufficient evidence to support the jury verdict in this case. Dr.

Gaines diagnosed Chappell’s condition and opined that Chappell suffers from a

behavioral abnormality that makes him likely to commit predatory acts of sexual

violence. The jury heard evidence of Chappell’s many risk factors, including, but

not limited to, his repeated sexual offenses, the diagnosis of pedophilia, and his

                                          11
continued attempts to blame the children he assaulted. Dr. Gaines’s testimony was

not so conclusory as to be completely lacking in probative value. See In re

Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at

*14 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.).

      Furthermore, the jury was entitled to draw reasonable inferences from basic

facts to determine ultimate facts, and to resolve conflicts and contradictions in the

evidence by believing all, part, or none of a witness’s testimony. See Lacour v.

State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000); In re Commitment of Mullens,

92 S.W.3d at 887. Chappell’s difficulty in controlling his behavior can be inferred

from his past behavior, his own testimony, and Dr. Gaines’s testimony. See In re

Commitment of Burnett, 2009 Tex. App. LEXIS 9930, at *13; In re Commitment of

Wilson, No. 09-08-00043-CV, 2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—

Beaumont Aug. 27, 2009, no pet.) (mem. op.). The evidence is sufficient to show

that Chappell’s inability to control his behavior distinguishes him from the “typical

recidivist convicted in an ordinary criminal case.” See Crane, 534 U.S. at 413.

Reviewing all the evidence in the light most favorable to the verdict, a rational jury

could have found, beyond a reasonable doubt, that Chappell is a sexually violent

predator who is likely to commit predatory acts of sexual violence. See In re

Commitment of Mullens, 92 S.W.3d at 887. After weighing the evidence, we

                                         12
conclude that the verdict does not reflect a risk of injustice that would compel

ordering a new trial. See In re Commitment of Day, 342 S.W.3d at 213. We

overrule issues one and two, because the evidence is legally and factually sufficient

to support the jury’s verdict.

                                 CONSTITUTIONAL CHALLENGE

      In his third and final issue, Chappell argues the trial court erred by denying

Chappell’s pre-trial “Motion to Control or Slow Pace of Trial to Ensure Access to

Attorney and Effective Representation” (hereinafter “motion to control”).

Chappell maintains that the trial court’s denial of the motion to control created a

“constitutional structural error” and violated his right to counsel under the Sixth

Amendment of the United States Constitution and Article I, Section 10 of the

Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. I, § 10.

      SVP cases are civil cases. In re Commitment of Fisher, 164 S.W.3d 637, 653

(Tex. 2005). The SVP statute expressly provides that the Office of State Counsel

for Offenders shall represent an indigent respondent in an SVP case, or the trial

court can appoint other counsel if the Office of State Counsel for Offenders is

unable to represent the person. Tex. Health & Safety Code Ann. § 841.005 (West

2010). The right to counsel, contained in the Sixth Amendment of the United

States Constitution and Article I, Section 10 of the Texas Constitution, is not at

                                         13
issue in this case and our courts have not yet decided whether a respondent in a

civil commitment proceeding has a “constitutional right to counsel” under the

United States Constitution or the Texas Constitution. 2 It is unnecessary to decide

that issue in this case for the following reasons: the trial court followed the SVP

statute, the State provided Chappell with an attorney from the Office of State

Counsel for Offenders, Chappell has not challenged the statutory provision,

Chappell has not alleged that his counsel was incompetent or inadequate, and he

does not otherwise voice any complaint about his defense. Assuming without

deciding that such “constitutional right to counsel” may exist in the context of this

SVP proceeding, we conclude that Chappell has no basis for his contention that the

denial of the motion to control constituted a denial of his “right to counsel.”

      To the extent Chappell contends that the court’s denial of his motion to

control interfered in some unspecified manner with his ability to communicate with

his attorney at the trial, the record does not support his contention. In his argument

      2
        The constitutional right to counsel has been held to be a fundamental right
of criminal defendants. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963);
Powell v. Alabama, 287 U.S. 45 (1932). But the constitution does not afford the
right to every person in every proceeding. See Turner v. Rogers, 131 S.Ct. 2507,
2515-20 (2011); Lassister v. Dep’t of Social Servs., 452 U.S. 18, 26-31 (1981); see
also Ex parte Gonzales, 945 S.W.2d 830, 836 (Tex. Crim. App. 1997).




                                          14
to the trial court, Chappell explained that he wanted a pause and delay after every

question so that he could “then indicate if he need[ed] to communicate with his

attorney for effective assistance of counsel . . . in all phases of trial.” His prayer in

the motion to control asked for the court to grant the motion “to protect his

constitutional right to counsel and order that Respondent have the time to

communicate with his attorney through his interpreter after every question and

answer during the trial.”

      Although the trial court denied the motion to control, the trial court granted

Chappell’s motion for appointment of an interpreter during all proceedings,

including trial. Moreover, the record indicates that five American Sign Language

interpreters appeared at the trial, and one of the five interpreters was specifically

assigned to sit with Chappell during the trial and to assist him with communication

with his attorney or to otherwise communicate any concerns. Furthermore, the trial

court granted an order to allow Chappell and his attorney to have real-time

transcription of the trial testimony and proceedings during the trial. Additionally,

the trial court informed Chappell’s counsel at the hearing on the motion to control

that the pace of the trial would be slow enough for Chappell to communicate with

counsel. The trial court advised Chappell that “[if] it starts going too fast, you tell




                                           15
me.” Before the trial began, the trial court notified the parties again that Chappell

could “easily take a recess any time it’s needed.”

      Despite such instructions, Chappell, his attorney, and his interpreter never

made any objections or complaints during the trial about the actual pace of the

questions or answers. Furthermore, at no time during the trial did Chappell or his

attorney ever complain that Chappell was having difficulty communicating or

understanding the process. Therefore, Chappell has waived this point. See Tex. R.

App. P. 33.1(a).

      Nevertheless, even if Chappell had preserved the objection, Rule 611(a) of

the Texas Rules of Evidence provides that “[t]he 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.” Tex. R. Evid. 611(a). Based on the record

before us, we conclude that the trial court exercised reasonable control over the

mode and order of interrogation of the witnesses and the presentation of the

evidence at trial.

      This is a civil case, not a criminal one. Thus, the criminal rules pertaining to

the accommodation of a deaf defendant are not applicable here. Yet these rules are

                                         16
instructive. For example, in criminal proceedings a trial judge is required to

provide an interpreter for a deaf person to interpret “in any language that the deaf

person can understand, including but not limited to sign language.” Tex. Code

Crim. Proc. Ann. art. 38.31(a) (West Supp. 2013). In criminal cases, “the trial court

has a duty to devise a communication solution that provides the particular

defendant with ‘that minimum level’ of understanding that is constitutionally

required.” Linton v. State, 275 S.W.3d 493, 501 (Tex. Crim. App. 2009) (footnote

omitted). Courts have approved methods of communication with a deaf person that

may “include the use of sign language, finger spelling, lip reading, written

communication, or stenographers to provide simultaneous transcriptions, or a

combination of these methods, depending [on] a person’s proficiency in the

different systems of communication.” Id. (footnote omitted). As long as a

translation is true and accurate, it is sufficient. It does not need to be perfect. Id. at

501-02. The Court of Criminal Appeals has stated that “decisions regarding

interpretive services are within the sound discretion of the trial court.” Id. at 503

(footnote omitted).

      We hold that the trial court judge did not abuse his discretion in denying the

pretrial motion to control and did not deprive Chappell of his right to access to his

attorney. Accordingly, we overrule issue three. The judgment is affirmed.

                                           17
      AFFIRMED.


                                            _____________________________
                                                  LEANNE JOHNSON
                                                       Justice


Submitted on December 13, 2013
Opinion Delivered January 23, 2014

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




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