In Re Commitment of Michael G. Waite Appeal from 435th District Court of Montgomery County (memorandum opinion )

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In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00364-CV ____________________ IN RE COMMITMENT OF MICHAEL G. WAITE ______________________________________________________________________ On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 14-11-12803-CV ______________________________________________________________________ MEMORANDUM OPINION The State of Texas filed a petition to commit Michael G. Waite (Waite) as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2015) (SVP statute). A jury found that Waite is a sexually violent predator and the trial court rendered a final judgment and an order of civil commitment. Waite filed an appeal. In his first four issues, Waite challenges the sufficiency of the evidence to support the jury’s verdict. In his fifth issue, Waite contends that the trial court erred in denying Waite’s motion for continuance. We affirm the trial court’s judgment and order of civil commitment. 1 THE EVIDENCE AT TRIAL Admissions and Testimony of Waite The State read Waite’s responses to the State’s requests for admissions into the record before the jury. In Waite’s responses, Waite admitted pleading guilty to three counts of indecency with a child and he admitted that he used drugs. At trial, Waite testified that he had sexual contact with his twelve-year-old stepdaughter more than fifteen times over a six-month period, and he admitted that he had sex with her. Waite testified at trial that he told his stepdaughter not to tell anyone because if she did he would get in trouble. Waite admitted during his testimony that he knew the sexual activity with his stepdaughter was wrong but he agreed he had a strong urge to continue it and he “didn’t want to stop.” According to Waite, the stepdaughter saw a film about sexual abuse and then told her mother about the sexual contact with Waite. Waite testified that he pleaded guilty to three counts of indecency with a child, and he was sentenced in January 2001 to seven years’ deferred adjudication. Waite explained that his deferred adjudication was modified in December 2002, when he violated the terms of his deferred adjudication by giving a female a ride home from his place of business, and he was ordered to serve thirty days in county jail. According to Waite, his deferred adjudication was modified again in 2006, and 2 he was ordered to serve 150 days in jail. Waite violated his deferred adjudication again in November 2011, when he used pornographic material and viewed some movies with partial nudity in them for sexual stimulation and gratification. Waite testified that at the time of the November 2011 violation he was aware that he could be sent to prison as a result of a violation of his deferred adjudication but he violated the conditions anyway. He was then sentenced to five years in prison and was serving the five year sentence at the time of the commitment trial. Waite also admitted to having sexual contact with other underage girls including another stepdaughter with whom he had sexual contact “about three times[]” when that stepdaughter was “10 or 11.” Waite admitted to having sexual contact with a “10 or 12” year old friend of his daughter. Waite testified that he twice attempted to engage in sex with a dog, once when Waite was “very young[]” and once in his thirties. He also admitted that as a junior high and high school student, and as an adult, he would engage in “frottage[,]” during which he would touch another person for sexual arousal but “make it look like an accident[.]” And, he admitted that during his last marriage, he would “peep” on his stepchildren while they were in the bathroom and that he did so because it was sexually arousing to him. 3 According to Waite, before he went to prison he used drugs, including speed, LSD, and other drugs. Waite testified that he was using speed three to four times a week before he was put on probation. Waite also admitted he was using speed when he sexually offended but he stated that he did not use the drug while on deferred adjudication. Waite testified that he completed a nine-month sex offender treatment program while in prison. Waite agreed that he has basically been in treatment for about ten years. And, Waite agreed that he is sexually attracted to adolescent girls. Upon examination from Waite’s counsel, Waite explained that his health has deteriorated, that he takes blood pressure medication, and the deterioration of his health has resulted in a decreased sex drive. Waite testified that engaging in sexual contact with someone under age eighteen is “not something I ever want to do again.” He further explained that he committed his offenses because he gave himself permission to do it even though he knew it was wrong, and he testified he was sorry for committing the offenses. According to Waite, while he was “out in the free world for 11 years getting therapy[]” he did not commit any sexual offenses, and he has not committed any sexual offenses since the time of his arrest and conviction. He admitted, however, that he violated his probation multiple times. 4 Testimony of Dr. Self Dr. David Self, M.D., a board-certified psychiatrist with a subspecialty in forensic psychiatry, testified for the State. Based on his education, training, and experience, the records he reviewed, and his interview with Waite, Dr. Self believes Waite suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Dr. Self explained the methodology he used and records he reviewed for assessing a behavioral abnormality are consistent with the practice of other experts who do this type of evaluation. He stated that in reaching his opinion he reviewed Waite’s records including a psychological evaluation of Waite made by a psychologist, Waite’s sex offender treatment records, prison records, parole board records, probation records, criminal records, and Waite’s deposition transcript. According to Dr. Self, the facts of Waite’s sexual offenses were important in helping Dr. Self determine whether Waite suffered from a behavioral abnormality. Dr. Self explained that he also relied on Waite’s sexual convictions in forming his opinion and that the details of Waite’s convictions were significant in assisting Dr. Self in determining whether Waite has a behavioral abnormality because they provided “a way to kind of inferentially look into [Waite’s] thoughts and desires and feelings and behaviors.” 5 Dr. Self testified that the records showed that in 1999, Waite was indicted for offenses against Waite’s twelve- or thirteen-year-old stepdaughter, and Waite received seven years’ deferred adjudication. Dr. Self explained that although Waite’s conviction was for touching his stepdaughter’s breasts, Waite admitted to Dr. Self that Waite had sexual intercourse and oral sex with his stepdaughter. According to Dr. Self, Waite admitted to initiating the sexual contact but Waite put “more of the responsibility on the little girl[.]” Waite also admitted to Dr. Self that Waite had engaged in sexual contact with other children, including another stepdaughter. According to Dr. Self, Waite portrayed the sexual contact with his stepdaughters in a way that suggested that the stepdaughters initiated the contact. Waite told Dr. Self that Waite was not using drugs at the time of the offenses, although Dr. Self explained that other records indicated otherwise. Dr. Self testified that the records he reviewed indicated Waite had violated his probation by driving a young woman home by himself, by using pornography and movies in an erotic fashion on occasions, and by engaging in acts of sexual gratification to fantasies about his victims. According to Dr. Self, Waite said that when he engaged in such conduct, he knew he would be punished for it “but he just couldn’t stop himself from doing it.” 6 Dr. Self testified he diagnosed Waite with pedophilic disorder but Waite is not a psychopath. Dr. Self identified the following factors as increasing Waite’s risk of reoffending: Waite has a sexual deviant interest (pedophilia); Waite projects responsibility onto his victims which indicates he has a tolerant attitude towards sexual assault; Waite is sexually preoccupied which is evidenced by the fact he has had sex with a dog; Waite has a history of criminal or deviant sexual conduct, such as “frotteurism, exhibit[]ionism, voyeurism, et cetera[;]” Waite has a history of dependence on methamphetamine and speed, which are drugs associated with impulsivity and aggression; and Waite has difficulty following the terms of his probation and has had marginal response to sex offender treatment. The only positive or protective factor was Waite’s age (sixty-five). But, Dr. Self explained that because pedophiles “hang on longer into the life cycle than do other sex offenders[,]” any “aging out phenomena is not quite as pronounced with [Waite].” Dr. Self testified that nothing in the records he reviewed indicated that Waite had received any disciplinaries for sexual acts, violence, or drugs while incarcerated. However, Dr. Self clarified that it is common for sex offenders to have little or no disciplinaries while in prison because “they are low on the pecking order and they don’t want people to know what they have done. They don’t want to call attention to themselves.” On cross-examination, Dr. Self acknowledged that 7 the records he reviewed indicate that Waite had not committed a new sexual offense since his arrest more than fifteen years prior to the commitment trial, and Dr. Self agreed that Waite is “not a recidivist at this point[.]” Dr. Self explained that he did not perform a Static-99R on Waite, but Dr. Self reviewed Static-99R actuarials scored on Waite by Dr. Turner and Dr. Mauro and that both scores indicated a low risk for re-offense. Dr. Self also explained that the likelihood of people acting on [pedophilia] does decrease with age, but it doesn’t go away[.]” According to Dr. Self, Waite has admitted “he is still attracted to 13-year-old girls[],” and Waite admitted “very recently[]” that he had “intense desires, urges, fantasies about sex with prepubescent children.” Dr. Self also explained to the jury that the fact that [Waite] has very recently continued to project responsibility onto these victims is also troublesome. Dr. Self also stated that he did not think that a “nine-month sex offender treatment at TDCJ is likely to make major changes in somebody[.]” Testimony of Dr. Mauro Dr. Marisa Mauro, Psy.D., a licensed clinical and forensic psychologist, testified on behalf of Waite. Dr. Mauro testified that, in her opinion, Waite does not have a behavioral abnormality. In forming her opinion, Dr. Mauro relied on a five-and-a-half-hour clinical interview she had with Waite, the multidisciplinary 8 team report, the “initial forensic psychological exam pertinent to behavioral abnormality[,]” Waite’s sex offender treatment program initial interview, police records and victim statements, judgments, sex offender treatment records, prison records, and depositions of Waite, Dr. Self, and of herself, and actuarials. Dr. Mauro agreed that records and methods she relied upon in forming her opinion are the types usually relied upon by professionals in her field. Dr. Mauro testified that she diagnosed Waite with a provisional diagnosis of “pedophilic disorder nonexclusive limited to female[,]” that pedophilic disorder is “thought to be[]” a chronic condition, and that a diagnosis of pedophilic disorder can be related to a risk for sexually reoffending. Dr. Mauro testified that even though Waite’s victim at the time of the offense was post-pubescent, Mauro thinks “there is reasonable information to suggest that he is attracted to prepubescent” girls, but that is the reason she gave him a provisional diagnosis. According to Dr. Mauro, she has “not personally seen a case where someone has been able to stay out in the community supporting themselves, keeping a job, staying in treatment for ten years[,]” and that “[h]e’s probably the best” that she has ever seen “on community supervision.” She testified that Waite’s response to treatment has been “extremely positive[,]” and that Waite’s sex offender treatment 9 provider told Mauro that Waite did very well in treatment and graduated from the program. Dr. Mauro testified that she completed the Static-99R, the Static-2002R, and the Hare PCL-R actuarials in evaluating Waite. Mauro explained that on the Static99R she gave Waite a score of “negative three” and on the Static-2002R she gave him a score of “negative one.” She reviewed a copy of Dr. Turner’s completed Static-99R on Waite wherein Dr. Turner scored Waite a “negative one.” Mauro attributed the difference in their scoring of the Static-99R to the fact that Dr. Turner “gave Mr. Waite points” on the two variables of “unrelated victim and stranger victim” which Mauro explained “doesn’t make sense[]” because his conviction was for offenses against Waite’s stepdaughter. According to Dr. Mauro, Waite’s scores on the Static-99R and Static-2002R indicate a low risk of recidivism. Mauro explained that on the Hare PCL-R, which measures psychopathy, she gave Waite a score of “14[]” but the MDT evaluator gave Waite a score of “25.” She testified she does not believe Waite is a psychopath. In addition to the risk factors encompassed in the Static instruments, Dr. Mauro considered Waite’s diagnosis of pedophilia as a factor that elevates Waite’s risk to reoffend. Mauro regarded the following as protective factors: Waite spent ten years “free . . . in the community;” he completed sex offender treatment; his 10 pedophilic disorder has a nonexclusive aspect; he is attracted to adult women as well as prepubescent children and has had other adult sexual relationships; he has family support from his mother; he has a “very good” employment history; and, he demonstrated the ability to maintain employment and support himself even under the conditions of probation. On cross-examination, Mauro agreed that the records she reviewed indicated that Waite had reported that he had performed oral sex twenty to thirty times on the stepdaughter against whom he was convicted of offending. Mauro testified that during her interview of Waite he admitted he also sexually touched two other stepdaughters, as well as a ten-year-old daughter of a friend of his first wife, and a three or four year old girl his wife was babysitting. Although Mauro acknowledged that the records she reviewed indicated that Waite self-reported 750 acts of frottage and 600 victims of his frotteurism, she did not consider his commission of such acts to be “directly pertinent[]” to the question of whether he has a behavioral abnormality because “[t]hat condition itself wouldn’t lead someone to commit a sexually violent offense.” Mauro agreed that Waite had admitted to engaging in peeping and he admitted to attempted sexual behavior with a dog when Waite was “younger” and again in his thirties. 11 Dr. Mauro testified that in her opinion Waite is currently not sexually preoccupied and that the probation violations to which Waite pleaded true (including, among other violations, thoughts about kidnapping and killing someone, fantasizing about a young female customer at his place of employment and then driving her home, and visiting establishments where minors are located) were “not at all[]” concerning to her. Mauro also admitted that Waite’s treatment records indicated that he reported to his probation officer in 2006 that he was very close to reoffending, he reported to his treatment provider in July 2010 that he had fantasies of kidnapping, raping, and killing someone, and that if he reoffends it would be “in a big way.” Dr. Mauro acknowledged that the records she reviewed included a May 2011 progress report from a treatment provider indicating that Waite admitted to his group that he “was minimizing and saying just enough to get by[.]” Mauro also agreed that an August 2010 progress report by a treatment provider indicated that Waite described seeing a woman jogging a couple of years prior and that he thought he would try to persuade her to get into the car and take her to his property and that he would have to build a bomb or storm shelter “so [the neighbors] would not hear the screams[.]” 12 SUFFICIENCY OF THE EVIDENCE In his first two issues, Waite challenges the legal and factual sufficiency of the evidence supporting the jury’s finding that Waite has serious difficulty in controlling his behavior. Specifically, Waite contends that “[t]he fact remains that when [Waite] was out in the free world, he had the opportunity to reoffend every day, yet he chose to remain in sex offender treatment, held a job, and engaged in healthy sexual outlets[,]” and that Waite’s violations of probation “do not equate to the ‘serious difficulty controlling behavior’ standard” required by Kansas v. Crane, 534 U.S. 407, 411-12 (2002). In his third and fourth issues, he argues that because the evidence is legally and factually insufficient to support the jury’s implicit finding that Waite has serious difficulty in controlling his behavior, the evidence is also legally and factually insufficient to support the jury’s finding that Waite has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Under a legal sufficiency review, we assess all the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could find, beyond a reasonable doubt, the elements required for commitment under the SVP statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in 13 the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 887. Under a factual sufficiency review, we weigh the evidence to determine “whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that would compel ordering a new trial.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied). In an SVP case, the State must prove, beyond a reasonable doubt, that a person is a sexually violent predator. Tex. Health & Safety Code Ann. § 841.062(a) (West 2010). A person is a “sexually violent predator” if he is a repeat sexually violent offender and suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003(a) (West Supp. 2015). A “behavioral abnormality” is “a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.” Id. § 841.002(2) (West Supp. 2015). “A condition which affects either emotional capacity or volitional capacity to the extent a person is predisposed to threaten the health and safety of others with acts of sexual violence is an abnormality which causes serious 14 difficulty in behavior control.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—Beaumont 2003, pet. denied). The jury was entitled to draw reasonable inferences from basic facts to determine ultimate fact issues, and to resolve conflicts and contradictions in the evidence by believing all, part, or none of the witnesses’ testimony. In re Commitment of Barbee, 192 S.W.3d 835, 842 (Tex. App.—Beaumont 2006, no pet.). “[P]roof of serious difficulty in controlling behavior[]” is required to civilly commit a respondent under the SVP statute. See Crane, 534 U.S. at 413. Waite’s current difficulty in controlling his behavior can be inferred from his past behavior, his own testimony, and Dr. Self’s testimony. See In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.). Dr. Self’s opinion that Waite has a behavioral abnormality, as defined by the SVP statute, necessarily entails a related finding that he has “serious difficulty controlling his behavior.” See Almaguer, 117 S.W.3d at 505-06; see also In re Commitment of Browning, 113 S.W.3d 851, 862-63 (Tex. App.—Austin 2003, pet. denied). In addition to hearing the details of Waite’s offenses, the jury also heard Waite’s own testimony that he is attracted to and sexually aroused by adolescent girls and that he knew the sexual activity with his stepdaughters and other victims 15 was wrong but he had a strong urge to continue the behavior and that he “didn’t want to stop.” The jury heard Waite admit that he had sexually assaulted other children and attempted sexual acts with a dog. The jury heard Dr. Self’s testimony that Waite “is still attracted to 13-year-old girls[]” and that Waite continued to have sexual fantasies about his victim, even though he knew it was wrong, “he just couldn’t stop himself from doing it[.]” The jury also heard evidence that Waite also recently admitted that he had “intense desires, urges, fantasies about sex with prepubescent children[.]” The jury heard Dr. Self’s testimony about Waite’s risk factors that would increase Waite’s risk of re-offense, and that Waite had a history of “frotteurism, exhibit[]ionism, voyeurism, et cetera[.]” Considering all the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found, beyond a reasonable doubt, that Waite has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The evidence is legally and factually sufficient to support the verdict. See Tex. Health & Safety Code Ann. §§ 841.002(2), 841.003(a); Crane, 534 U.S. at 413; Mullens, 92 S.W.3d at 887. Additionally, weighing all of the evidence, the verdict does not reflect a risk of injustice that compels granting a new trial. See Day, 342 S.W.3d at 213. We overrule issues one through four. 16 MOTION FOR CONTINUANCE In his fifth issue, Waite argues the trial court erred by denying Waite’s motion for a continuance “because his attorneys showed good cause in asking for the continuance when they deemed themselves unable to effectively represent Appellant at trial.” A ruling on a motion for continuance is reviewed on appeal under an abuse of discretion standard. In re Commitment of Winkle, 434 S.W.3d 300, 305 (Tex. App.—Beaumont 2014, pet. denied). In a civil case involving the commitment of a sexually violent predator, the trial may be continued if the person the State is seeking to civilly commit would not be substantially prejudiced. See Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 22, 2003 Tex. Gen. Laws 1505, 1516 (current version at Tex. Health & Safety Code Ann. § 841.063 (West Supp. 2015)).1 The request for a continuance may be made on the request of either party. The party seeking the continuance must make a showing of good cause. Id. The trial court can also continue the case on his own motion in the due administration of justice. Id. Under an abuse of discretion standard, reversible error arises if the trial court’s decision is “‘so arbitrary and unreasonable as to amount to a clear and 1 We note that, although inapplicable to this civil commitment proceeding, the current version of section 841.063 includes subsection (b), which provides that “[t]he judge may not continue a trial conducted under this chapter to a date occurring later than the person’s sentence discharge date.” See Tex. Health & Safety Code Ann. § 841.063(b) (West Supp. 2015). 17 prejudicial error of law.’” BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Waite’s motion for continuance was filed on July 6, 2015, by one of the attorneys assisting Waite’s original lead counsel.2 The motion stated that Waite’s original lead counsel had notified the State Counsel for Offenders (“SCFO”) office on Thursday, July 2, 2015, that the original lead counsel would be unable to attend trial because of medical issues.3 A handwritten note was included with the motion stating “today 07/06/2015 at 7:51 a[.]m[.], [original lead counsel] advised he is ill and will not be able to attend trial.” The motion asserted that original lead counsel’s absence was not the result of Waite’s own fault or negligence, and that original lead counsel conducted all discovery in the matter, was familiar with the “intricacies of the respondent’s case[,]” and was “also the attorney who has been in frequent contact with the respondent and the respondent’s testifying expert in this case, Dr. Marisa Mauro, in regards to her opinion in the matter.” On July 6, 2015, 2 We refer to Waite’s lead counsel prior to trial, an attorney with the State Counsel for Offenders (“SCFO”), as “original lead counsel.” Two additional SCFO attorneys represented Waite at trial and on the Motion for Continuance. We refer to the SCFO attorney that was the lead counsel at trial and at the Motion for Continuance as “trial counsel” and the assisting SCFO attorney that was cocounsel at trial as “co-counsel” or “defense co-counsel.” 3 The motion for continuance did not include a supporting affidavit from original lead counsel regarding his absence. 18 the trial court heard, as part of certain pretrial matters, Waite’s motion for continuance. The motion for continuance was presented and argued by defense trial counsel and co-counsel, each of whom appeared on behalf of Waite. THE COURT: . . . Are there any unresolved pretrial motions? [Defense Trial Counsel]: Yes, Your Honor. First I would like to inform you that this morning we filed a Motion for Continuance. Actually, in the process of being filed. We tried to file it in the clerk’s office, but they wouldn’t allow us to file a paper copy. I have a copy here for you. THE COURT: Okay. Any argument on your motion? [Defense Trial Counsel]: Yes. [Original lead counsel] has been designated as lead attorney on this case. On Thursday he had reported ill from work. We had been unable to get ahold of him throughout the weekend. This morning at 7:51 he notified us that he would not be in and would probably be out for another two days. We did try to contact him via text message, e-mail and telephone over the weekend. ... And fax. [Original lead counsel] has been doing or conducting all the discovery in the case. He’s filed all the pleadings except for one. He’s also been in frequent contact with our testifying expert in this case, Dr. Mauro. I have not had any contact with Dr. Mauro in this case. He’s also the person who’s filed the pretrials in this case and he’s also assigned me only limited duties in this trial. So, I was preparing forward with the duties he had assigned to me. [Co-counsel] is here today. He’s not too familiar with the case. He just started working on it yesterday. [Original lead counsel]’s absence is not through the fault or negligence of Mr. Waite. Mr. Waite at this point feels uncomfortable moving forward in this stage of litigation without [original lead counsel’s] presence. We are respectfully asking that we can have this 19 continued possibly until next Monday to give [original lead counsel] an opportunity to be present for the trial. THE COURT: Okay. Any response? [State’s Counsel]: Yes, Your Honor. This case was filed November 25 of 2014. And under Chapter 841, the Court’s to conduct a trial not later than the 270th day after the date the petition is served on the respondent. I think that date is probably somewhere around August the 30th. But in addition to that, Mr. Waite has a parole plan that’s been approved for halfway house placement. We understand that he could literally be released any day now from prison. This case has already been continued once because of the recusal motion that was filed. The original trial date was April 20th. . . . [W]e feel that for those reasons we must oppose their Motion for Continuance. In addition, obviously you’ve been assigned to hear this case by Judge Underwood. So, there’s been an order signed for you to be here to hear this trial this week. We’re not opposed to doing only the voir dire today and starting with opening statements tomorrow morning. That would allow the afternoon and this evening for additional time for preparation. We’re not opposed to that. But we believe this trial needs to go forward this week. [Defense co-counsel] did appear at a deposition on this case this past Thursday. So, he at least has a little familiarity with the case before yesterday. ... [Defense Trial Counsel]: Okay. I don’t believe the Motion for Recusal should be considered a continuance. We have a duty to file that motion in the best interest of Mr. Waite. And in consideration of the fact that this isn’t a regular civil proceeding, Mr. Waite is facing indefinite civil commitment. I do believe due process would require that we wait for [original lead counsel’s] presence. THE COURT: What was the basis of the first Motion for Continuance? 20 ... [State’s Counsel]: The first Motion for Continuance that was filed . . . when there wasn’t actually a trial setting. I think the stated basis was . . . he had already taken Dr. Self’s deposition and wanted additional time to continue to depose him. . . . They have had the second deposition of Dr. Self at this point. [Defense co-counsel] did alert us on Thursday that [original lead counsel] not being here for trial was at least a possibility. So I think the Defense has had at least a couple of days at the end of last week to get ready for this possibility. And we’re also not opposed to picking a jury today but maybe waiting until Wednesday or Thursday to start the evidence in this trial either. We just feel like this trial needs to get done this week. THE COURT: Okay . . . why don’t we begin with jury selection today and then we will grant a recess until 9:00 a.m. Wednesday. ... [State’s Counsel]: Dr. Self cannot be here Wednesday morning. We’re checking on Thursday. THE COURT: Okay. And what is Dr. Mauro’s schedule? ... [State’s Counsel]: Dr. Self is available Thursday morning. ... [Defense Co-counsel]: We talked with Dr. Mauro and she’s unavailable Thursday. But we are texting and e-mailing [original lead counsel] seeing if he’s available tomorrow[.] [State’s Counsel]: Then I say go with the original plan, pick the jury today and start evidence tomorrow and the doctor can be here 21 tomorrow morning to testify. I understood Dr. Mauro was available tomorrow afternoon. Is that when she was originally supposed to be here? [Defense Co-counsel]: Originally. THE COURT: Okay. Try to call Dr. Mauro and make sure she can be here tomorrow afternoon. According to Waite, the trial court abused its discretion in denying the continuance. Waite contends there was good cause for a continuance because Waite’s trial counsel and defense co-counsel needed time to familiarize themselves with the case, the continuance would not have prejudiced Waite, and the continuance would have been in Waite’s best interest because the continuance would enable him to “receive effective representation” from lawyers familiar with his case.4 Waite contends that the trial court’s ruling was arbitrary because it did not state reasons for the denial of the motion for continuance, and that by setting the trial to begin the next day, the trial court “forced Appellant to accept 4 On appeal, Waite includes a statement in his brief that the denial of his motion for continuance denied him “effective representation[.]” Waite does not frame his issue as an ineffective assistance of counsel claim and does not identify any specific instances of ineffective assistance, nor does he brief an issue pertaining to an alleged ineffective assistance claim. “Although the Texas Supreme Court has extended a right to effective assistance to civil cases involving the termination of parental rights, it has not addressed whether a sexually violent predator may obtain a remedy for ineffective assistance on direct appeal.” In re Commitment of Williams, No. 09-09-00539-CV, 2010 Tex. App. LEXIS 8671, at *3 (Tex. App.—Beaumont Oct. 28, 2010, pet. denied) (mem. op.). 22 representation that deemed itself unable to effectively represent him[.]” In support of his argument that the trial court abused its discretion in denying Waite’s motion for continuance, Waite cites to this Court’s memorandum opinion in In re Commitment of Ortiz, No. 09-09-00013-CV, 2010 Tex. App. LEXIS 5731 (Tex. App.—Beaumont, July 22, 2010, no pet.) (mem. op.). In Ortiz, the SCFO lead counsel for Ortiz appeared on the day of trial and informed the court that her office was changing the designation of counsel and another attorney would be trying the case. 2010 Tex. App. LEXIS 5731, at *1. Shortly after the proceedings commenced, the new SCFO attorneys took the place of the original defending attorneys and SCFO advised the court that lead counsel who had been handling the case up to that point was not going to try the case because of a threat that had been made against her, and she was afraid to try the case. Id. at **1-2. Counsel advised the court that Oritz signed a statement stating that he did not want the original attorneys to try the case. Id. at *2. Counsel advised the court that she and another attorney with SCFO were going to try the case and that they had met with Ortiz the preceding Friday. Id. SCFO requested a seven-day continuance to give the new attorneys time to familiarize themselves with the file and prepare for trial. Id. The trial court denied the request for continuance but noted that the presentation of evidence would not begin until the following day. Id. 23 On appeal, this Court concluded that the trial court’s denial of the motion for continuance was not an abuse of discretion.5 Id. at *7. Generally, the absence of counsel is not good cause for a continuance when a case is called for trial. Tex. R. Civ. P. 253; see also In re N. Am. Refractories Co., 71 S.W.3d 391, 393 (Tex. App.—Beaumont 2001, orig. proceeding). Both civil and criminal courts have upheld the denial of a motion for continuance when lead counsel is unavailable on the day of trial but the defendant is adequately represented by another attorney who is associated with the case. See Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 155-56 (Tex. App.—Austin 1998, no pet.); see also Rosales v. State, 841 S.W.2d 368, 371-72 (Tex. Crim. App. 1992). In Cooper, lead counsel was unavailable on the day of the trial and the defendant was represented by another attorney from the same law firm. Cooper, 962 S.W.2d at 155-56. Nothing in the record indicated that the attorney who 5 In his brief on appeal, Waite relies heavily on one sentence that is contained in our Ortiz memorandum opinion, wherein this Court stated that the facts in Ortiz did not include “a situation in which the original attorney was unavailable on the day of trial and counsel was forced to try the case without the aid of the original attorney in charge.” In re Commitment of Ortiz, No. 09-0900013-CV, 2010 Tex. App. LEXIS 5731, at *6 (Tex. App.—Beaumont, July 22, 2010, no pet.) (mem. op.). We conclude that the holding in Ortiz was not based upon the absence of those facts. 24 represented the defendant at trial was incapable of rendering adequate representation, and the court held that the trial court’s denial of the motion for continuance was not an abuse of discretion. Id. at 156. In Rosales, lead counsel was ill on the day of trial and the defendant was represented by another attorney who had worked on defendant’s case. Rosales, 841 S.W.2d at 372. Finding that the trial court’s denial of the motion for continuance was not an abuse of discretion, the Texas Supreme Court explained that “[f]ailure to grant a motion for continuance where lead counsel had been debilitated does not amount to an abuse of discretion, even if associate counsel ‘was not as familiar with the case as his leading counsel[,]’ at least where the ‘record shows nothing that could have been done for appellant that was not properly done by counsel who managed the case during trial.’” Id. at 373 (citations omitted). In the present case, the State represented to the trial court that defense cocounsel notified the State on Thursday that there was a possibility original lead counsel would not be at trial. As such, the defense trial counsel and co-counsel who tried the case had notice on the Thursday before trial of at least the possibility that the original lead counsel would not be able to attend trial, and they had some time to prepare for that possibility. Defense trial counsel also explained to the trial court that she had been assigned limited duties in the case by Waite’s original lead 25 counsel. According to the State, the defense co-counsel had attended a recent deposition in the case and was familiar with the case. The trial court also heard the argument that Waite could be released “any day now[.]” The trial court instructed the parties that, after voir dire, the court would recess until the next day. Waite points to no specific errors by his attorneys during the trial. On the record before us, we cannot say that the trial court’s denial of the motion for continuance was “‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’” BMC Software Belg., N.V., 83 S.W.3d at 800 (quoting Johnson, 700 S.W.2d at 917). Issue five is overruled. We affirm the trial court’s judgment and order of commitment. AFFIRMED. _________________________ LEANNE JOHNSON Justice Submitted on February 22, 2016 Opinion Delivered May 5, 2016 Before McKeithen, C.J., Horton and Johnson, JJ. 26

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