In Re: The Commitment of Timothy Lee Danner--Appeal from 221st District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-002 CV
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IN RE THE COMMITMENT OF TIMOTHY LEE DANNER
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Court Cause No. 01-03-02097CV
MEMORANDUM OPINION

The State filed a petition seeking to involuntarily civilly commit appellant Timothy Lee Danner as a sexually violent predator. See Tex. Health & Safety Code Ann. 841.001-841.150 (Vernon 2003 & Supp. 2004). The State's petition was based in part on Danner's convictions for three prior sexually violent offenses that qualified him for consideration under Chapter 841 as a sexually violent predator. All three of his convictions were for crimes against children. A jury found Danner suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment from which Danner appeals. Danner raises six issues.

In issue one, Danner argues Chapter 841 is unconstitutional because, he says, it is punitive in nature and violates basic constitutional safeguards. He relies on the factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). We have considered and rejected these complaints before. See In re Commitment of Shaw, No. 09-02-530 CV, 2003 Tex. App. LEXIS 8378 (Tex. App.-- Beaumont Sept. 25, 2003, no pet. h.); In re Commitment of Martinez, 98 S.W.3d 373 (Tex. App.--Beaumont 2003, pet. filed); Beasley v. Molett, 95 S.W.3d 590, 607-08 (Tex. App. --Beaumont 2002, pet. filed); In re Commitment of Mullens, 92 S.W.3d 881, 883-84 (Tex. App.--Beaumont 2002, pet. filed). Issue one is overruled.

In issue two, Danner relies on Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), to support his contention that his due process rights were violated due to the trial court's jury charge. We have recently rejected these jury submission arguments in In re Commitment of Almaguer, No. 09-02-172 CV, 2003 Tex. App. LEXIS 8406 (Tex. App.--Beaumont Sept. 25, 2003, no pet. h.). As in Almaguer, the trial court's submission encompasses the appropriate standard and does not violate Danner's due process rights. See id; see generally Crane, 534 U.S. at 412-414. Issue two is overruled.

In issue three, Danner says Chapter 841 is unconstitutionally vague and violates the separation of powers doctrine. He directs his "vagueness" arguments at subsections (4), (5), and (9) of section 841.082(a) and the separation-of-powers argument at subsection (9). We have rejected these arguments in prior cases. See Shaw, 2003 Tex. App. LEXIS 8378 at *9; Beasley, 95 S.W.3d at 608-09; Mullens, 92 S.W.3d at 887-88. We overrule issue three.

Danner argues in issue four that his Fifth Amendment privilege against self-incrimination was violated when evidence of his interviews with two doctors was admitted at trial. (1) However, Danner failed to raise his Fifth Amendment violation objection at trial and failed to preserve the issue. See Tex. R. App. P. 33.1(a)(1)(A); Shaw, 2003 Tex. App. LEXIS 8378 at *10. Issue four is overruled.

In issue five, Danner maintains that his Fifth Amendment privilege against self incrimination was violated when the trial court ordered him to submit to polygraph examinations. We rejected this argument in Mullens. See 92 S.W.3d at 888; see also Shaw, 2003 Tex. App. LEXIS 8378 at *10. We overrule issue five.

In his final issue, Danner asserts the trial court erred by admitting evidence regarding his three prior final convictions even though he had stipulated to the convictions. The trial court accepted Danner's offer to stipulate (2) to the prior convictions required to establish a defendant's status as a "repeat sexually violent offender" under the sexually violent predator statute. See Tex. Health & Safety Code Ann. 841.003(a)(1), (b) (Vernon Supp. 2003). By judicially admitting to the prior convictions, Danner relieved the State of the burden of submitting evidence to prove he is a repeat sexually violent offender. Establishing that element, however, was not the State's only purpose in introducing the evidence. The State also offered the penitentiary packets to satisfy the other element of section 841.003 -- namely that Danner suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. 841.003(a)(2) (Vernon 2003). We previously rejected a similar argument in In re Commitment of Adams, No. 09-03-003 CV, Slip. op. at ____, 2003 WL ______ (Tex. App.--Beaumont December 11, 2003, no pet. h.).

Danner also argues the pen packet evidence was unfairly prejudicial to him. Under Tex. R. Evid. 403, relevant evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Danner argues the admission of the pen packets caused the jury to improperly focus on the "convictions and evidence regarding them." The pen packets contained evidence of his prior offenses - all directed at children. He committed one offense (indecency with a child younger than seventeen) on December 29, 1984; another offense (sexual assault of a child under fourteen) was committed January 30, 1985. In March 1991 he again committed the offense of indecency with a child younger than seventeen. The pen packet evidence was probative of whether Danner has a behavioral abnormality. "[T]here must be a demonstration that introduction of the evidence would be unfairly prejudicial to the objecting party." Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 772 (Tex. App.--Corpus Christi 1999, pet. denied). The pen packet evidence cannot be said to be unfairly prejudicial. The evidence assists the jury in making its determination of whether Danner has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court did not err in admitting the evidence. We overrule issue six.

The judgment and order of the trial court are affirmed.

AFFIRMED.

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DAVID B. GAULTNEY

Justice

 

Submitted on November 14, 2003

Opinion Delivered December 18, 2003

 

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. In his appellate brief, Danner references two doctors, Dr. Rahn Bailey and Dr. Rogers. Dr. Bailey's trial testimony is contained in the record. Appellant does not supply us with any record reference to Dr. Rogers in the record, and we find none.

2. No written stipulation appears in the record. Stipulations should be reduced to writing and filed with the record. See Tex. R. Civ.P. 11; Tex. R. Evid. 201.