IN RE: COMMITMENT OF MICHAEL DALE HOOD (2018)

MEMORANDUM OPINION

The Sexually Violent Predator (SVP) statute defines a “sexually violent predator” as one who is both (1) 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 § 841.003. After the close of evidence in this case, the trial court granted the State a partial directed verdict, declaring Hood a “repeat sexually violent offender.” See id. § 841.003(b). The remainder of the case proceeded to a jury, and that jury unanimously concluded that Hood was a “sexually violent predator” as defined by the Act. Id. at § 841.003(a). The trial court entered final judgment and issued an order of commitment based on the jury's verdict.

In Hood's sole issue on appeal, he argues that the trial court erred by granting the State's partial directed verdict because he contends that, under the SVP statute, he was permitted a jury trial on this issue. Our Court has already rejected this precise argument. We therefore affirm.

Background

At trial, the judge admitted into evidence penitentiary packets reflecting Hood's previous convictions. Those convictions included a 1994 judgment for indecency with a child, a 1994 judgment for aggravated sexual assault of a child, Hood's 1984 guilty plea to sexual assault, and his 1979 guilty plea to kidnapping.

Hood also testified about his numerous sexual assaults of children. In particular, Hood testified that he began offending in 1976, when he was 19 years old and in his last year of high school. According to Hood, he was driving down the street when he saw an 11 or 12-year-old boy walking on the side of the road. Hood pulled over and asked the boy if he wanted a job. The boy climbed in Hood's car, and they drove around for a while before going to a motel room. Hood testified that he undressed the boy and fondled the boy's genitals. The boy also fondled Hood's genitals. The boy then started crying and Hood took him home. Hood testified that he was never arrested for this offense, but he was told by a neighbor to go to the police station. He did. Eventually Hood and his dad left the station, though, after Hood's father informed him that the lawyer had “taken care of it.”

Hood testified that he offended again in 1979. His second victim was 12 or 13 years old and the son of one of Hood's co-workers. According to Hood, he went to his co-worker's house to do odd jobs, and he started grooming the boy by offering him money and buying him things. One day, when Hood was changing the tire of the boy's mother's truck, Hood asked the boy to sit in the driver's seat of the truck. Hood then asked him to unzip his pants. Hood fondled him in the truck before taking him to a motel room. Hood testified that, at the motel, he and the boy fondled each other's genitals, Hood performed oral sex on the boy, and Hood rubbed his genitals between the boy's legs. Hood's co-worker accused Hood of kidnapping her son and Hood was arrested in 1979. He was charged with sexual assault and aggravated kidnapping. Hood was ultimately convicted of kidnapping and sentenced to five years' imprisonment. Hood testified that he served two years of his sentence before being released on parole.

Hood testified that he offended again when he was 27 years old. His victim was a 10-year-old boy he also met through his co-workers. Hood testified that he and the boy engaged in sexual relations including kissing, oral sex, and fondling. Hood testified that he paid the boy to bring him other boys. Hood admitted that he took the boy and two other boys to a motel room and they all engaged in sexual relations. According to Hood, he engaged in such activities with the three boys “practically every weekend” for approximately three months. Hood stated that he gave money to two of the boys. The boy to whom Hood did not give money, R.O., eventually reported him. Hood was convicted of sexual assault with respect to R.O. and was sentenced to 13 years' imprisonment for this offense. He served approximately four years of this sentence before being released in 1988.

When he was 36 years old, Hood was again convicted of aggravated sexual assault of a child and indecency with a child. The complainant was an 11-year-old boy whom Hood babysat while his father, a wrecker driver, was away at work. Hood admitting to forcing himself on the complainant. He testified that he forced his penis into the complainant's mouth, he “turned him over” and forced his penis “in between his legs at first. And then it went into his anus.” Hood testified that he “didn't stop and [the complainant] was hollering.” The sexual abuse continued for six months. Hood was sentenced to 20 years' imprisonment on the indecency with a child charge and 35 years' imprisonment on the aggravated sexual assault of a child charge.

Finally, Hood testified that his next and last victim—whom Hood abused before returning to jail—was a four-year-old boy. According to Hood, the boy's parents owned the dry-cleaning business where he worked, and Hood went to their house to do odd jobs. Hood testified that he fondled the boy's genitals and made him fondle Hood's, and he performed oral sex on the boy. He was ultimately convicted of aggravated sexual assault of a child for these offenses and sentenced to 35 years' imprisonment.

At the close of evidence, the State moved for a partial directed verdict on the issue of whether Hood is a “repeat sexually violent offender” as that term is defined by Chapter 841 of the Texas Health and Safety Code. The State argued that there was no genuine issue of fact as to whether Hood had been convicted of more than one sexually violent offense—that a reasonable mind could draw only one conclusion from the evidence of Hood's previous offenses. Hood responded that a directed verdict was improper because Chapter 841 provided him the right to a trial by jury and, to the extent this provision conflicts with the directed verdict procedures permissible under the Texas Rules of Civil Procedure, the statute prevailed.

The trial court granted the State's partial directed verdict and the remainder of the case proceeded to the jury. A unanimous jury found beyond a reasonable doubt that Hood is a “sexually violent predator.” The trial court entered judgment and issued an order of commitment based on the jury's verdict. Hood appeals.

Discussion

Hood argues that the trial court erred in granting the State a partial directed verdict on the issue of whether he is a “repeat sexually violent offender” because, Hood contends, he was statutorily permitted a trial by jury on this issue. Our Court has already rejected this precise argument.

A. Applicable Law

Chapter 841 of the Texas Health and Safety Code establishes procedures related to the civil commitment of sexually violent predators. It defines a sexually violent predator as a person who: (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 § 841.003. The chapter defines the term “repeat sexually violent offender” as a person who “is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses.” Id. at § 841.003(b).

Pursuant to Chapter 841, a defendant in a sexually violent predator case “is entitled to a jury trial on demand.” TEX. HEALTH & SAFETY CODE § 841.061(b). Hood bases his argument on this provision.

Nonetheless, civil commitment proceedings remain subject to Texas rules of civil procedure, and those rules expressly provide for directed verdicts. See TEX. R. CIV. P. 268. Partial directed verdicts remove part of a case from the factfinder but leave the remainder of the case for the jury. See Johnson v. Swain, 787 S.W.2d 36, 37 n.1 (Tex. 1989). Unless there is a conflict between Chapter 841 and the rules of civil procedure (in which case the statute controls), both apply in a civil commitment case. See TEX. HEALTH & SAFETY CODE § 841.146(b).

B. Analysis

Hood argues that because § 841.062 permits a jury trial on whether he is a sexually violent predator, and because the issue of whether he is a repeat sexually violent offender is an element of that ultimate determination, he is entitled to a jury trial on the issue of whether he is a repeat sexually violent offender.

Our precedent disagrees. See In re Commitment of Talley, 522 S.W.3d 742 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Indeed, in Commitment of Talley, our Court affirmed a directed verdict for the State on the issue of whether the appellant was a repeat sexually violent offender, holding that no fact question existed for the jury to decide as to appellant's status because he admitted to his previous convictions and the State provided additional evidence supporting his admission. Id. at 751. In so reasoning, our Court explained that: “[a]bsent evidence that challenges the evidence that the defendant has been convicted of more than one sexually violent offense and for which a sentence was imposed for one of them, a person's status as a sexually violent offender is a legal determination appropriate for partial directed verdict.” Id. at 750. We relied on the Texas Supreme Court's statement—which is applicable here—that in a civil commitment proceeding under Chapter 841, the only fact issue for the jury to determine is whether the person has a behavioral abnormality. Id. (citing In re Commitment of Bohannan, 388 S.W.3d 296, 305 (Tex. 2012)).

This reasoning forecloses Hood's argument. As in Commitment of Talley, Hood himself admitted to sexually assaulting children. Hood testified at trial regarding the details of his numerous offenses and resulting convictions. In addition, the State submitted evidence of Hood's previous convictions. That evidence conclusively established that Hood falls within the definition of a repeat sexually violent offender under the statute. Hood does not contend that there was a disputed question of fact. Nor does he explain how he was harmed by a partial directed verdict on a part of the case as to which there was no fact dispute.

Under both this Court's and the Texas Supreme Court's precedent, because there was no fact question for the jury to decide, the trial court did not err by granting the State a directed verdict on the issue of whether Hood is a repeat sexually violent offender. See Commitment of Talley, 522 S.W.3d at 750–51; see also In re Commitment of Harris, No. 14-16-00706-CV, 2017 WL 6003623, at *6–7 (Tex. App.—Houston [14th Dist.] Dec. 5, 2017, no pet.) (holding where evidence conclusively established existence of appellant's previous convictions for more than one sexually violent offense, no fact issue existed for jury to decide, and grant of partial directed verdict on issue of whether appellant was repeat sexually violent offender was not error); In re Commitment of Alvarado, No. 09-13-00217-CV, 2014 WL 1285136, at *13 (Tex. App.—Beaumont Mar. 27, 2014, pet. denied) (mem. op.) (same); In re Commitment of Martinez, 09-12-00452-CV, 2013 WL 5874583, at *4 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.) (same) In re Commitment of Scott, No. 09-11-00555-CV, 2012 WL 5289333, at *2 (Tex. App.—Beaumont Oct. 25, 2012, no pet.) (mem. op.) (same).

We overrule Hood's sole issue.

Conclusion

We affirm the judgment of the trial court.

Jennifer Caughey Justice

Jennings, J., concurring.