Russell v Texas

2-21-2013 Texas:

Russell v Texas
No. 02-11-00478-CR.

JUDGMENT
This court has considered the record on appeal in this case and holds that there was no error in the trial court's judgment. It is ordered that the judgment of the trial court is affirmed.

In two points, Appellant Edward Lynn Russell appeals his conviction on eleven counts of violating a civil commitment requirement as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.085(a) (West 2010). We will affirm.

In February 2008, Russell agreed to a final judgment identifying him as a sexually violent predator as defined in health and safety code section 841.003 and ordering him to be civilly committed for outpatient treatment and supervision in accordance with chapter 841 of the health and safety code. See id. §§ 841.001-.151 (West 2010 & Supp. 2012).

In addition to addressing Russell's treatment and supervision, the order of civil commitment required him to "reside in supervised housing at a Texas residential facility under contract with the Council on Sex Offender Treatment (Council) or at another location or facility approved by the Council"; to "submit to tracking under a global positioning satellite (GPS) monitor or other monitoring system provided"; to "exactingly participate in and comply with the specific course of treatment provided by the Council"; and to "comply with all written requirements of the Council and case manager."2 The commitment order also contained the following notice: "EDWARD RUSSELL shall strictly comply with the commitment requirements of Health & Safety Code § 841.082 and this Order of Commitment, or will be charged with a felony of the third degree, which may be enhanced to a more severe punishment."

At the outset of his commitment and treatment, Russell reviewed and agreed to abide by all of the rules and requirements contained in the following documents: "Civil Commitment Requirements: Standard Requirements of the Treatment Program"; "Council on Sex Offender Treatment Supervision Requirements"; "Council on Sex Offender Treatment Additional Supervision Requirements"; and "Council on Sex Offender Treatment Global Positioning Tracking Service Requirements for MTD." In 2009 and 2010, Russell signed additional documents evidencing his agreement to abide by various requirements of his commitment.

... ... ...

Further, the case managers did not have the power to determine or define what did and did not constitute "criminal conduct," as Russell argues. That responsibility lies with the legislature. Exercising that authority, it has determined that "[a] person commits an offense if, after having been adjudicated and civilly committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement imposed under Section 841.082." Id. § 841.085(a). Subsection four of section 841.082 requires the sexually violent predator's "participation in and compliance with a specific course of treatment provided by the office and compliance with all written requirements imposed by the case manager or otherwise by the office." Id. § 841.082(a)(4). Russell's order of civil commitment included this requirement.

Nor could Russell's case managers have unilaterally determined whether he "violated" the civil commitment order for failing to comply with a civil commitment requirement. Although the case managers were tasked with reporting Russell's violation of a commitment requirement, and the indictment accused Russell of violating a commitment requirement, it was the jury that had the ultimate responsibility of determining whether Russell committed a "violation" of his commitment order. See Tex. Code Crim. Proc. Ann. art. 21.01 (West 2009) (providing that the indictment accuses the person named therein of some act or omission which, by law, is declared to be an offense), art. 36.13 (West 2007) (providing that the jury is the exclusive judge of the facts); see also Tex. Health & Safety Code Ann. § 841.085(a). According to the record, including the trial court's charge to the jury at the guilt phase, that is precisely what happened in this case. Russell had both notice of the charges against him and an opportunity to be heard. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976) (addressing due process argument).

We overrule Russell's first point and affirm the trial court's judgment.

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