Commitment of Fisher v. State

• Decision Date: 18 December 2003
• Docket Number: No. 13-01-00714-CV.,13-01-00714-CV.
• Citation: 123 S.W.3d 828
• Parties: The COMMITMENT OF Michael FISHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

123 S.W.3d 828

The COMMITMENT OF Michael FISHER, Appellant, v. The STATE of Texas, Appellee.

No. 13-01-00714-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

December 18, 2003.

Kenneth W. Balusek, Civil Commitment Services, State Counsel for Offenders, Hunstville, for appellant.

Autumn Lewis, Special Prosecution Unit, Hunstville, for appellee.

Before the Court En Banc.

OPINION

WITTIG¹, Justice.

Michael Fisher appeals his indeterminate commitment. The commitment was under the relatively new Texas Sexual Violent Predator Act, effective September 1, 1999. Fisher raises four complaints; two are issues of first impression. First he attacks the sexually violent predator statute (SVP) as punitive, both facially and as applied, because Fisher does not have the mental ability to understand or comply with the order of commitment. Second, Fisher argues his due process rights were violated when he was forced to proceed to trial when he was incompetent. His argument includes the contention he was denied the opportunity to exercise his right to counsel. We will treat the competency issues generally together.² In his third issue, he attacks the SVP statute and commitment order as unconstitutionally vague. Finally, Fisher claims his fifth amendment privilege against self-incrimination was violated because Fisher was compelled to testify against himself.³

We will only address Fisher's complaints concerning his mental incapacity. Unchallenged psychiatric and psychological testimony showed both Fisher's inability to understand the proceedings against him, and his inability to cooperate with his attorney in his own defense. Fisher also argues his entitlement to a competency hearing before being subjected to a trial as a sexually violent predator. We agree. Because we reverse and remand on the competency issues, we do not address his other complaints.

I

The State of Texas filed a petition in District Court in Montgomery County, Texas, to commit Michael Fisher as a sexually violent predator. Fisher requested a hearing to determine his competency to stand trial. The motion asserted that Fisher had neither a sufficient present ability to consult with counsel with a reasonable degree of rational understanding, nor a rational as well as factual understanding of the proceedings against him. The motion further stated Fisher was an inpatient at the Institutional Division of the Texas Department of Criminal Justice when the petition was filed. While at the mental facility, Fisher had episodes of psychotic behavior and was diagnosed with schizophrenia, paranoid type, and antisocial personality disorder. Fisher was also said to be at least mildly retarded. The assigned visiting trial judge initially granted the motion for a competency hearing. The trial court then denied the motion for competency hearing but liberally allowed a bill of exception.

In the offer of proof, two mental health experts testified. Fred Fason, M.D., a psychiatrist, graduated from Baylor University College of Medicine, and was a World War II veteran. He had been court appointed for clinical evaluations some 2000 times. Dr. Fason testified Fisher was "totally unable to cooperate and communicate with [his attorney] and engage him in legal activities." The doctor stated Fisher had neither a factual nor rational understanding of the proceedings against him. Dr. Fason further testified Fisher was mildly retarded, with an I.Q. in the lower 60's. Fisher's paranoia would lower his scores, and schizophrenia lowered his cognitive abilities. According to the psychiatrist, Fisher in no way could conform to the terms of a treatment program, and was doomed to failure if he were put on outpatient treatment. Dr. Fason's descriptions of Fisher included paranoia, schizophrenia, delusional and psychotic. "His view of himself and of his situation is so unrealistic that it's psychotic." Fisher was not capable of reading the MMPI,⁴ which requires a sixth grade education to accomplish. While Fisher could spell "house," he could not spell "table" or "judge." Finally Dr. Fason testified that Fisher thought the present proceedings were "about trying to send me to a half-way house." According to the testimony, Fisher thought he would have to sign for the program and, because he would refuse to sign, he would then be released. Dr. Fason opined there was no way Fisher could stand trial competently.

The State neither cross-examined Dr. Fason nor otherwise challenged his testimony.

Dr. Floyd Jennings, psychologist and attorney, also testified Fisher lacked both factual and rational knowledge of the proceedings. Dr. Jennings further testified Fisher was unable to assist his attorney in preparation of his defense. Dr. Jennings also had expertise in sex treatment programs. He stated that sex treatment programs are verbally intensive, and require a modicum of intellect to effectively participate; this ability is lacking in Fisher. He is incapable of participating and benefitting from a program for sex offender treatment "because he could not understand what is asked of him." According to Dr. Jennings, to order Fisher to participate in a sex treatment program is virtually a sham. "[A] word `sham' seems too strong, but it would be one wherein the defendant or the patient would be anticipated to fail because he could not understand what is asked of him."

The State offered a limited cross-examination of Dr. Jennings. Dr. Jennings opined that he thought of Fisher as dangerous to himself primarily and, secondarily, to a lesser extent, dangerous to others under the conventional commitment law. See Tex. Health & Safety Code Ann. §§ 574.034-.035. (Vernon 2001). Dr. Jennings admitted he disagreed with the State's attorney regarding commitment of sexually violent predators. Dr. Jennings also offered an alternative to sexually violent predator commitment. Dr. Jennings suggested Fisher should be given protective custody and emergency detention under the conventional civil commitment laws. Fisher could then be properly treated at Vernon State Hospital.

After Fisher's proffer of proof, the trial court observed that neither Chapter 841 of the Health and Safety Code, nor any other provision in the civil law gives leave to a competency determination, before going forward with trial on the issues under Chapter 841. This oral pronouncement is verified by the court's order dated May 29, 2001. The trial court concluded that a determination of competency to stand trial is neither required nor appropriate. The court observed: "I think the very nature of the proceeding it may well be if the legislative intent is to be followed that frequently there will be respondents who are not, in the sense of a criminal proceeding, competent to stand trial." Indeed, we agree with the trial court's studied conclusion that mental competency is not required by the statute.

At trial, the 36-year old Fisher was called to the stand for testimony by the State and cross-examined about his prior convictions and other misdeeds. The two prior felony convictions that enabled the State to seek commitment were sexual assaults. Both offenses occurred in 1987 and he pled guilty to both. Fisher claimed these offenses were with prostitutes who wanted more money, that he was not guilty, but other factors prompted his plea. Fisher violated his community supervision three times and was re-incarcerated. During probation he assaulted his wife. However, none of the probation violations were sexually related. One of the violations included his removal of a satellite monitoring device, not unlike the device he now wears. A jury found Fisher was a sexually violent predator. The trial court signed and entered a final judgment and order of commitment. The judgment requires Fisher, in addition to not contacting his two 1987 victims, not to participate in programs with persons 17 or younger, to stay 1000 feet from where children commonly are, not to consume alcohol or controlled substances, and not to leave Texas or to change his home residence without court approval, inter alia. Fisher was also ordered, upon release from lock-down, to be fitted with electronic satellite monitoring equipment by the Texas Department of Public Safety for around the clock monitoring. There are 11 disabilities and restrictions under the judgment and 97 more under the commitment requirements.

The "civil commitment requirements" expand the disabilities and restrictions of the final judgment and order of commitment. These additional restraints consist of 97 separate requirements of Fisher's "treatment and supervision contract." The second and fourth paragraphs of the judgment's commitment order incorporate these additional restraints by ordering: "Michael Fisher shall follow the directive of his case manager in matters related to his residence selection and rules." The civil commitment requirements are also attached and incorporated into the final judgment.

We observe a few of the provisions from the civil commitment requirements.⁵ Fisher is forbidden to have contact with or harass program staff or volunteers. Many rules require his cooperation with his case manager and staff as well as adherence to any future treatment plans. Contact with family members is forbidden unless approved by the case manager and staff. Family members may be required to submit to criminal background checks. R-rated movies or TV programs are forbidden unless discussed with case manager and staff. Fisher may not go to schools, swimming pools, movie theaters, public libraries, amusements parks, arcades, or malls where children or potential victims are likely to be. He cannot work anywhere that requires contact with women or children. Fisher may not touch anyone without their permission. Fisher may not use drugs or drink any alcohol. Fisher may not buy, borrow, steal, possess, or use cameras, recorders, CD or DVD recorders, or any other recording device. He cannot use a post office box, pick...