in Re: The Commitment of Anthony Bernard Wiley ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-20-00039-CV
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IN RE: THE COMMITMENT OF ANTHONY BERNARD WILEY
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. 186,685-C; Honorable Charles Barnard, Presiding
December 7, 2021
ORDER ON SECOND MOTION FOR EN BANC RECONSIDERATION
Before QUINN, C.J., and PIRTLE and PARKER and DOSS, JJ.
On August 11, 2021, this court affirmed a jury finding that Appellant, Anthony
Bernard Wiley, is a sexually violent predator. 1 Wiley’s motion for rehearing was denied
on August 31, 2021, and his Motion for En Banc Reconsideration or to Recuse was denied
on November 4, 2021. Pending before this court is Appellant’s Second Motion for En
See In re Commitment of Wiley, No. 07-20-00039-CV, 2021 Tex. App. LEXIS 6609, at *12 (Tex.
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App.—Amarillo Aug. 11, 2021, no pet. h.) (mem. op.).
Banc Reconsideration or to Recuse filed by Wiley. 2 The issue of recusal was heretofore
certified to the four justices of this court and pursuant to Rule 16.3 of the Texas Rules of
Appellate Procedure, the request was denied. The court now considers the portion of
Wiley’s second motion by which he requests en banc reconsideration of our prior opinion.
The request is denied with these additional comments.
Wiley contends this court incorrectly determined that he is a repeat sexually violent
offender under the Civil Commitment of Sexually Violent Predator’s Act. 3 Without
presenting any new arguments, he again maintains the evidence is insufficient to show
that he has “more than one sexually violent offense” because he maintains that his
burglary conviction is not a sexually violent offense.
The Act defines a “sexually violent offense” as an offense under section 21.02
(continuous sexual abuse of a child), section 21.11(a)(1) (indecency with a child younger
than seventeen), section 22.011 (sexual assault), or section 22.021 (aggravated sexual
assault) of the Penal Code. See TEX. HEALTH & SAFETY CODE ANN. § 841.002(8)(A). The
Act also defines a sexually violent offense as an offense under section 30.02 (burglary)
of the Penal Code “if the offense is punishable under Subsection (d) of that section and
the person committed the offense with the intent to commit” an offense listed in paragraph
(A) or (B). 4 See id. at § 841.002(8)(C). Wiley disputes that his 1995 burglary conviction
qualifies as a sexually violent offense. For the third time, we disagree.
2 As Wiley has acknowledged, Rule 41.2(c) of the Texas Rules of Appellate Procedure provides
that en banc consideration is not favored. TEX. R. APP. P. 41.2(c).
3 TEX. HEALTH & SAFETY CODE ANN. §§ 841.001-151 (West 2017 & Supp. 2021).
4 Paragraph (B) referencing section 20.04 of the Penal Code relates to aggravated kidnapping.
2
Pursuant to Wiley’s July 1995 conviction, without the effective consent of the
owner, Wiley entered a habitation, and committed or attempted to commit aggravated
sexual assault. The record speaks for itself, and that offense—the offense of burglary,
punishable under subsection (d) of section 30.02 of the Texas Penal Code is, by
definition, a sexually violent offense. It is simply not any more complicated than that.
Wiley’s Second Motion for En Banc Reconsideration is denied.
Per Curiam
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