IN RE: COMMITMENT OF JUSTIN A. WETZEL (2017)

MEMORANDUM OPINION

Justin A. Wetzel appeals from a jury verdict that resulted in his civil commitment as a sexually-violent predator. See Tex. Health & Safety Code Ann. § 841.001–.151 (West 2010 & Supp. 2016) (the SVP statute). In a single issue, Wetzel challenges the facial constitutionality of the SVP statute in his appeal from the trial court's judgment and order of commitment. We conclude that Wetzel's challenge to the SVP statute was not preserved for the purpose of his appeal, and we affirm the trial court's judgment.

In his appeal, Wetzel challenges the amendments to the SVP statute that are found in Senate Bill 746, which amended Chapter 841 of the Texas Health and Safety Code. See Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700, 2700-12. The amendments went into effect on June 17, 2015. Id. Wetzel's trial began on September 14, 2015. Wetzel contends that the 2015 amendments rendered the SVP statute, Chapter 841 of the Texas Health and Safety Code, facially unconstitutional. According to Wetzel, the 2015 amendments cause the SVP statute to fail the “intent-effects test,” which is the test the Texas Supreme Court used in In re Commitment of Fisher to evaluate the constitutionality of the SVP statute. See In re Commitment of Fisher, 164 S.W.3d 637, 645-53 (Tex. 2005). Wetzel argues that the SVP statute, as amended, requires that all persons adjudicated as sexually-violent predators be confined without requiring the State to prove that the person the State seeks to commit is not amenable to treatment as an outpatient. Given the various other conditions of commitment that must be proven to establish that a person is a sexually-violent predator, Wetzel contends that the SVP statute, as amended in 2015, lacks a rational connection to the nonpunitive purposes of the statute. He contends the amendments caused the criminal penalties that are available under the SVP statute to “tip the statute ‘into the punitive realm.’ ” Mitchell v. State, 473 S.W.3d 503, 509 (Tex. App.—El Paso 2015, no pet.) (quoting Fisher, 164 S.W.3d at 652) (discussing the background of the 2015 amendments in an appeal challenging a defendant's conviction for violating the terms of his commitment as a sexually violent predator when under the 2015 amendments the violations at issue in the defendant's case were decriminalized).

Generally, to preserve a complaint for appellate review, the complaining party must present the complaint to the trial court by timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). The rule of error preservation applies to facial challenges to the constitutionality of the SVP statute, as such challenges must first be raised in the trial court to preserve them for review on appeal. In re Commitment of Welsh, No. 09-15-00498-CV, 2016 WL 4483165, at *2 (Tex. App.—Beaumont Aug. 25, 2016, pet. denied) (mem. op.); see also In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000) (“[T]he constitutionality of a statute should be considered only when the question is properly raised and such determination is necessary and appropriate to a decision in the case.”).

Wetzel raised the issue of the constitutionality of the amended SVP statute for the first time in his appeal. He did not raise the challenge in a pretrial motion, during his trial, or in a motion in the trial court filed after his trial.

Wetzel argues that he should be excused from the error preservation requirement of the rules of appellate procedure because a lower court declared the amended SVP statute to be unconstitutional after he was tried. See generally In re Commitment of May, 500 S.W.3d 515, 520–24 (Tex. App.—Beaumont 2016, pet. denied). However, we reversed the trial court's ruling in May, and held that the amended SVP statute is neither punitive nor facially unconstitutional. Id.

We conclude that Wetzel failed to follow the rules regarding the preservation of error for the purposes of the issue he seeks to raise in his appeal. See In re Commitment of Clemons, No. 09-15-00488-CV, 2016 WL 7323298, at *8 (Tex. App.—Beaumont Dec. 15, 2016, pet. denied) (mem. op.); see also Tex. R. App. P. 33.1 (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request). Because Wetzel failed to raise his facial challenge when his case was in the trial court, we conclude that his complaints about the amended statute were not preserved for our review. See Tex. R. App. P. 33.1(a)(1). We overrule Wetzel's sole issue, and we affirm the trial court's judgment and order of commitment.

AFFIRMED.

HOLLIS HORTON Justice