Adams v. State

Decision Date04 November 2005
Docket NumberNo. 03-03-00724-CR.,03-03-00724-CR.
Citation222 S.W.3d 37
PartiesCurtis L. ADAMS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Connie J. Kelley, Austin, for Appellant.

Sally Swanson, Asst. District Atty., Austin, for Appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION.*

OPINION

JOHN F. ONION, JR., Justice (Retired).

Appellant Curtis L. Adams appeals his conviction for violation of commitment requirements of a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.085 (West 2003).1 Appellant waived trial by jury and entered a plea of "not guilty." After a bench trial, the trial court found appellant guilty and assessed his punishment at four years' imprisonment.

Points of Error

Appellant advances twenty-three points of error. Among the points of error, appellant complains that the charging instrument was not a valid indictment, the trial court did not have jurisdiction because the civil commitment order was invalid, the evidence was legally insufficient to show appellant violated a valid commitment order, the evidence was factually insufficient to show appellant violated a commitment requirement in violation of section 841.085, and the evidence was legally and factually insufficient to show that he possessed marihuana, threatened John Harris with imminent bodily injury, or intentionally and knowingly damaged property. Further, appellant asserts that the trial court erred in using the Penal Code's definition of "sexual contact" in finding that appellant had engaged in sexual contact, because his conduct did not meet that definition. Appellant also challenges the constitutionality of chapter 841 of the Texas Health and Safety Code and section 841.085 in particular on various grounds.

Background

In 1999, the legislature enacted the Civil Commitment of Sexually Violent Predators Act, which was codified as chapter 841 of the Texas Health and Safety Code. See Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4122, 4143, since amended Act of May 30, 2003, 78th Leg., R.S., ch. 347, 2003 Tex. Gen. Laws 1505, 1514-19 eff. Sept. 1, 2003.

Section 841.001 relating to legislative findings provides:

The legislature finds that a small but extremely dangerous group of sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory acts of sexual violence. The legislature finds that the existing involuntary commitment provisions of Subtitle C, Title 7, are inadequate to address the risk of repeated predatory behavior that sexually violent predators pose to society. The legislature further finds that treatment modalities for sexually violent predators are different from the traditional treatment modalities for persons appropriate for involuntary commitment under Subtitle C, Title 7. Thus, the legislature finds that a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state.

Tex. Health & Safety Code Ann. § 841.001 (West 2003).

Chapter 841 establishes the civil commitment procedure which includes definitions, who is a sexually violent predator, the petition, trial, commitment and commitment requirements. The background and history of chapter 841 have been discussed at length in In re Commitment of Fisher, 164 S.W.3d 637, 639-42 (Tex.2000), and in In re Commitment of Browning, 113 S.W.3d 851, 855-57 (Tex.App.-Austin 2003, pet. denied). We need not further describe the procedure involved.

The record reflects that on September 30, 2002, appellant Adams was civilly committed as a sexually violent predator under chapter 841 in the 221st District Court of Montgomery County, Texas, and that the commitment requirements of section 481.082 then in effect, among others, were imposed on appellant. Appellant appealed this civil commitment under chapter 841 and the commitment was affirmed. In re Commitment of Adams, 122 S.W.3d 451 (Tex.App.-Beaumont 2003, no pet.).

On January 10, 2003, appellant entered into a "Civil Commitment Requirements: Treatment and Supervision Contract" with the Interagency Council on Sex Offender Treatment and his case manager which contract contained ninety-seven conditions with which appellant was to comply.

Among the provisions of the contract were the following:

37. I will not have sexual contact with a person without first telling him or her that I am a sexually violent predator. Before I have sexual contact with that person, I will sign a release permitting unfettered, two-way communication between the case manager and treatment contractor and my potential sexual partner. I understand that the case manager and treatment contractor must meet with my potential sexual partner before I have sex with that person;

40. I will not commit any new crimes.

One of the commitment requirements was that appellant reside in Travis County. Appellant was placed in Burks Supervised Living Center in Austin.

On September 23, 2003, appellant was indicted under section 481.085 in the 147th District Court of Travis County. The indictment alleged that appellant violated his commitment requirements by intentionally and knowingly possessing and transferring marihuana; intentionally and knowingly damaging tangible property, causing a pecuniary loss of more than $50 but less than $500; and intentionally and knowingly threatening John Harris with imminent bodily injury. In addition, the indictment alleged appellant violated an element of his treatment plan by touching the buttocks of an unknown female and allowing her to touch his penis without obtaining a release permitting such as required by the treatment contract he signed.

There was no motion to quash the indictment. Appellant waived any defect, error, or irregularity in the charging instrument. See Tex.Code Crim. Proc. Ann. art. 1.14(b) (West 2005). The cause was heard before the trial court on a plea of "not guilty."

Lisa Worry, appellant's first case manager with the Council on Sex Offender Treatment, testified that appellant had signed the treatment contract described and that she explained all ninety-seven conditions to him. Worry related that appellant also signed an "Open Communication Form" acknowledging that any communication made by appellant to persons working in the treatment program could be shared, would not be confidential, and could be used to inform law enforcement agencies, local prosecutors, and courts.

Worry testified that on February 19, 2003, appellant told her that another resident of the Burks home had given him some marihuana and that, several days later, he returned the marihuana to the other resident without using it. Appellant also told Worry that he had a sexual contact with a female on a bus, that he allowed her to touch his genitals, that he kissed her on her ear, and that he touched her buttocks as she left the bus. Dr. Nicholas Carrasco, a psychologist and registered sex offender treatment provider, testified that four weeks after he began treating appellant on January 22, 2003, appellant informed him about the possession of marihuana and the sexual contact on the bus.

John Harris, a resident and employee of the Burks Living Center, testified that he had been convicted of the felony offense of indecency with a child, but at the time was on probation for failure to register as a sex offender. Harris related that he was a monitor of security at the Burks home and that he delivered mail, did bed checks, and performed certain maintenance chores. On several occasions, as part of his job, Harris had reported appellant for several house infractions. On March 23 or 24, 2003, Harris returned to the Burks home. Appellant was upstairs smoking a cigarette. According to Harris, appellant told him: "I've got a problem with you. Why don't you come upstairs and I will kick your butt." Harris considered that he was being threatened with imminent bodily injury. Appellant continued to curse Harris and called him a coward and a "chicken butt." Harris left and reported the matter to Albert Taylor, the building manager.

The next day appellant was in the day room and Harris was outside on a porch. Appellant told Harris, "Come on in here. We have some unfinished business to take care of." Harris responded that he was not interested in discussing anything with appellant. Immediately, appellant struck the wall of the day room. A clock fell from the wall. Harris called Taylor. Appellant was escorted away. Harris observed a hole in the wall of the day room that had not been there before.

There was a videotape camera in the day room. Harris identified a videotape that showed appellant punching the wall. It was introduced in evidence. Taylor testified that appellant and Harris had had verbal disagreements, and that he had instructed appellant not to talk to Harris. Taylor identified several photographs depicting the damage to the wall in the day room caused by appellant. Taylor testified that he had care, custody, and control of the property, and that he had a greater right of possession than appellant. Taylor stated that the damage cost or pecuniary loss suffered was $68.53. He had not given appellant consent to damage the wall.

Carlton Scott, an employee of the Texas Department of Public Safety Special Crime Services, testified as a defense witness. Scott was engaged in monitoring those civilly committed by use of a portable tracking device. Scott testified that on one occasion, the tracking device on appellant, an outpatient, quit working or was "not gaining G.P.S." because appellant was out of range of the monitor. Scott reported that appellant got off a bus and telephoned him. He told appellant to return to the Burks house and appellant did so. In mid-August 2003, Scott learned that appellant...

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