                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00478-CR


Edward Lynn Russell                       §   From the 396th District Court

                                          §   of Tarrant County (1254067R)

v.                                        §   February 21, 2013

                                          §   Opinion by Justice Meier

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Bill Meier
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00478-CR


EDWARD LYNN RUSSELL                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                         MEMORANDUM OPINION1

                                    ----------

       In two points, Appellant Edward Lynn Russell appeals his conviction on

eleven counts of violating a civil commitment requirement as a sexually violent

predator. See Tex. Health & Safety Code Ann. § 841.085(a) (West 2010). We

will affirm.

       In February 2008, Russell agreed to a final judgment identifying him as a

sexually violent predator as defined in health and safety code section 841.003
       1
        See Tex. R. App. P. 47.4.


                                        2
and ordering him to be civilly committed for outpatient treatment and supervision

in accordance with chapter 841 of the health and safety code.            See id.

§§ 841.001–.151 (West 2010 & Supp. 2012). In addition to addressing Russell’s

treatment and supervision, the order of civil commitment required him to “reside

in supervised housing at a Texas residential facility under contract with the

Council on Sex Offender Treatment (Council) or at another location or facility

approved by the Council”; to “submit to tracking under a global positioning

satellite (GPS) monitor or other monitoring system provided”; to “exactingly

participate in and comply with the specific course of treatment provided by the

Council”; and to “comply with all written requirements of the Council and case

manager.”2    The commitment order also contained the following notice:

“EDWARD      RUSSELL      shall   strictly   comply   with   the   commitment

requirements of Health & Safety Code § 841.082 and this Order of

Commitment, or will be charged with a felony of the third degree, which

may be enhanced to a more severe punishment.”

      At the outset of his commitment and treatment, Russell reviewed and

agreed to abide by all of the rules and requirements contained in the following

documents: “Civil Commitment Requirements: Standard Requirements of the

      2
       The Council on Sex Offender Treatment (the Council) is now called the
Office of Violent Sex Offender Management. See Act of May 28, 2003, 78th
Leg., R.S., ch. 347, § 16, 2003 Tex. Gen. Laws 1505, 1514, amended by Act of
May 23, 2011, 82nd Leg., R.S., ch. 1201, § 3, 2011 Tex. Sess. Law Serv. 3197,
3199 (current version at Tex. Health & Safety Code Ann. § 841.002(4) (West
Supp. 2012).


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Treatment Program”; “Council on Sex Offender Treatment Supervision

Requirements”; “Council on Sex Offender Treatment Additional Supervision

Requirements”; and “Council on Sex Offender Treatment Global Positioning

Tracking Service Requirements for MTD.” In 2009 and 2010, Russell signed

additional documents evidencing his agreement to abide by various requirements

of his commitment.

      During the course of his outpatient treatment and supervision, Russell

failed to comply with numerous written treatment requirements.3 Consequently,

in May 2010, he was unsuccessfully discharged early from the sex offender

treatment program. Russell was later indicted on eleven counts of violating a

civil commitment requirement as a sexually violent predator.4 At trial, Russell’s

former case managers, Wesley Griffin and Lawrence Daniels, testified about

Russell’s violations of his treatment requirements. After convicting Russell on

each count, and upon his plea of true to the repeat offender notice, the jury

assessed Russell’s punishment at twenty years’ confinement and a $10,000 fine

for each count. The trial court sentenced Russell accordingly.5



      3
       Among other things, Russell failed to maintain a current thought journal,
caused a “bracelet-gone alert” (regarding his GPS system) to be activated, failed
to take medication, masturbated to a deviant fantasy involving a male child, and
had sex with a young male resident of the halfway house.
      4
       The State waived five other counts.
      5
       The trial court ordered the sentences to run concurrently.


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      In his first and second points, Russell argues that, as applied to him,

chapter 841’s civil commitment statutory scheme violated his federal due process

and state due course of law rights and the separation of powers provision of the

Texas constitution because it allowed private persons—his case managers—

(a) to create a treatment plan with requirements that, if violated, subjected him to

discharge from the treatment program without a hearing and criminal prosecution

and (b) to unilaterally determine whether he violated the civil commitment order

for failing to comply with a civil commitment requirement.        See U.S. Const.

amend. XIV; Tex. Const. art. I, § 19, art. II, § 1.

      We initially observe that Russell raised constitutional objections to chapter

841 in his motion to quash, which he filed—and the trial court denied without

considering any evidence—the same day the trial began.            Although Russell

articulated due process and due course of law grounds, he did not assert any

argument based upon the Texas constitution’s separation of powers provision.

Because Russell raises his separation of powers argument for the first time on

appeal, he failed to preserve his second point for appellate review. See Tex. R.

App. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995)

(reasoning that as-applied challenge cannot be raised for the first time on

appeal); Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006,

pet. ref’d) (holding same). We overrule Russell’s second point.




                                           5
      Assuming without deciding that Russell’s due process and due course of

law arguments are preserved,6 they are nonetheless unpersuasive.             Russell

complains about his case managers “set[ting] treatment plans,” but the

legislature expressly required the Council (now known as the “Office”) to

“approve . . . a treatment plan for the committed person to be developed by the

treatment provider.” Tex. Health & Safety Code Ann. § 841.083(a). Thus, while

the treatment provider develops the treatment plan, the Office approves it. Under

this framework, Russell’s case managers did not have unbridled authority to

devise—and require Russell to abide by—any civil commitment requirement that

they could potentially imagine without the requirement first being approved by the

Office. Indeed, here, each of the documents that Russell reviewed and approved

upon entering the treatment program contains a notation at the bottom right

corner indicating the date that the “CSOT,” or Council on Sex Offender

Treatment, last revised it.

      6
        See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App.
2011) (“‘Since [a contention that a statute is unconstitutional as applied] requires
a recourse to evidence, it cannot be properly raised by a pretrial motion to quash
the charging instrument.’”); State v. Rosseau, No. 04-10-00866-CR, 2011 WL
6207037, at *7–8 (Tex. App.—San Antonio Dec. 14, 2011, pet. granted) (stating
that an as-applied constitutional challenge “may not be resolved pretrial because
it depends on development of the specific facts of the case showing how the
statute is being applied to the defendant” and holding that as-applied
constitutional challenge was not preserved because it was raised in motion to
quash and no evidence was presented at pretrial hearing on motion to quash);
but see Lawson v. State, 283 S.W.3d 438, 443 (Tex. App.—Fort Worth 2009, pet.
ref’d) (“For this court to review an attack on the constitutionality of a statute ‘as
applied,’ Lawson must first have raised the issue before trial by written motion
and have obtained a ruling on the motion.”).


                                         6
      Further, the case managers did not have the power to determine or define

what did and did not constitute “criminal conduct,” as Russell argues.           That

responsibility lies with the legislature. Exercising that authority, it has determined

that “[a] person commits an offense if, after having been adjudicated and civilly

committed as a sexually violent predator under this chapter, the person violates a

civil commitment requirement imposed under Section 841.082.” Id. § 841.085(a).

Subsection four of section 841.082 requires the sexually violent predator’s

“participation in and compliance with a specific course of treatment provided by

the office and compliance with all written requirements imposed by the case

manager or otherwise by the office.” Id. § 841.082(a)(4). Russell’s order of civil

commitment included this requirement.

      Nor could Russell’s case managers have unilaterally determined whether

he “violated” the civil commitment order for failing to comply with a civil

commitment requirement.        Although the case managers were tasked with

reporting Russell’s violation of a commitment requirement, and the indictment

accused Russell of violating a commitment requirement, it was the jury that had

the ultimate responsibility of determining whether Russell committed a “violation”

of his commitment order. See Tex. Code Crim. Proc. Ann. art. 21.01 (West

2009) (providing that the indictment accuses the person named therein of some

act or omission which, by law, is declared to be an offense), art. 36.13 (West

2007) (providing that the jury is the exclusive judge of the facts); see also Tex.

Health & Safety Code Ann. § 841.085(a). According to the record, including the


                                          7
trial court’s charge to the jury at the guilt phase, that is precisely what happened

in this case.    Russell had both notice of the charges against him and an

opportunity to be heard. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333, 96

S. Ct. 893, 902 (1976) (addressing due process argument).             We overrule

Russell’s first point and affirm the trial court’s judgment.




                                                      BILL MEIER
                                                      JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 21, 2013




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