Stevenson, Eric Dwayne

PD-0122-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
June 23, 2015 Transmitted 6/23/2015 12:56:10 PM
Accepted 6/23/2015 2:02:59 PM
ABEL ACOSTA
Case No. PD-0122-15 CLERK
___________________________________________________

IN THE TEXAS COURT OF CRIMINAL APPEALS
___________________________________________________

ERIC DWAYNE STEVENSON v. THE STATE OF TEXAS
___________________________________________________

On Discretionary Review
of Appeal No. 02-13-00537-CR
in the Second Court of Appeals of Texas
at Fort Worth
___________________________________________________

APPELLANT’S BRIEF

___________________________________________________

Scott Walker
STATE BAR # 24004972
222 W. Exchange Avenue
Fort Worth, TX 76164
(817) 478-9999
(817) 977-0163 Facsimile
scott@lawyerwalker.com
Attorney for Appellant

Oral Argument Not Permitted

1
 IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Hon. Robb Catalano Criminal
District Court 3
Tarrant County, Texas

Appellant: Eric Dwayne Stevenson

Trial Counsel: Stephanie Patten
1300 W. University Drive, 602
Fort Worth, Texas 76102

Steve Gordon
201 Moneda Street
Fort Worth, Texas 76117

Appellate Scott Walker
Attorney for Appellant: Attorney at Law
222 W. Exchange Avenue
Fort Worth, Texas 76164

Appellee: The State of Texas

Trial Attorney for Lloyd E. Whelchel &
Appellee: Catherine P. Simpson
Tarrant County Assistant
District Attorneys
401 W. Belknap
Fort Worth, Texas 76196

Appellate Attorney for Debra Windsor (appeal)
Appellee: Assistant Tarrant County
District Attorney
401 W. Belknap
Fort Worth, Texas 76196

Lisa McMinn (discretionary
review)
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
2
 TABLE OF CONTENTS
PAGE
IDENTITY OF JUDGE, PARTIES, AND COUNSEL. . . . . 2
TABLE OF CONTENTS. . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 7
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . 8
QUESTIONS FOR REVIEW
QUESTION NUMBER ONE: (The convictions on Count
I, Count II, and Count III are for the same
offense for double jeopardy purposes).
QUESTION NUMBER TWO: The trial court had
no jurisdiction in this case because the
prior jurisdictional judgment was on appeal
and was, therefore, not a final judgment.
QUESTION NUMBER THREE: The trial court
erred by denying Appellant’s motion for
directed verdict.
QUESTION NUMBER FOUR: The trial court erred
by denying Appellant’s motion to quash the
indictment.
QUESTION NUMBER FIVE: The trial court erred
by sustaining the State’s relevance motion
to Appellant’s proffered evidence that the
commitment order was on appeal. . . . . . . 8
STATEMENT OF FACTS . . . . . . . . . . . . . . . 9
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 9
ARGUMENT . . . . . . . . . . . . . . . . . . . . 11
PRAYER . . . . . . . . . . . . . . . . . . . . . 40
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 40
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 41

3
 INDEX OF AUTHORITIES

CASES

Austin v. State,
P.D. 14 (Tex.Crim.App., delivered March 18, 2015).37

Bohannan V. State,
2014 Tex.App.Lexis 11825 (Tex. App.—Beaumont,
delivered October 29, 2014, no pet.). . . . . 34, 38

Boykin v. State,
818 S.W.2d 782 (Tex.Crim.App. 1991). . . . . . . .31

Duckett v. State,
454 S.W.2d 755 (Tex.Crim.App. 1970) . . . . . . . 14

Ex Parte Jimenez,
361 S.W.3d 679 (Tex.Crim.App. 2012). . . . . . . 32

Ex Parte Manuel Cavazos,
203 S.W.3d 333 (Tex.Crim.App. 2006). . . . . .13, 15

Fletcher v. State,
214 S.W.3d 5 (Tex.Crim.App. 2007). . . . . . . . .33

Giesberg v. State,
984 S.W.2d 245 (Tex.Crim.App. 1998). . . . . . . .38

Gongora v. State,
916 S.W.2d 570 (Tex.App.—Houston 1st dist.
1996, PDRR) . . . . . . . . . . . . . . . . . 12, 15

Gonzalez v. State,
8 S.W.3d 640 (Tex.Crim.App. 2000). . . . . . . . .14

Holberg v. State,
38 S.W.3d 137 (Tex.Crim.App. 1987) . . . . . . . .20

Jordan v. State,
36 S.W.3d 871 (Tex.Crim.App. 2001) . . . .20, 21, 23

4
Lopez v. State,
108 S.W.3d 293 (Tex.Crim.App. 2003) . . . . . 13, 15

Milburn v. State,
201 S.W.3d 749 (Tex.Crim.App. 2006) . . . . . . .21

Mobley v. State,
2008 WL 4414254 (Tex.App.—Texarkana 2008,
no pet.) . . . . . . . . . . . . . . . . . . . . .13

Rabb v. State,
730 S.W.2d 751 (Tex.Crim.App. 1987) . . . . . . . 20

Smith v. Doe,
538 U.S. 84, 101, 123 S.Ct. 1140, 155
L.Ed.2d 164 (2003) . . . . . . . . . . . . . . . .18

Smith v. State,
2014 Tex.App.Lexis 10117 (Tex.App.—Beaumont.
Delivered September 10, 2014, no pet.). . . . 36, 37

State v. Baker,
761 S.W.2d 465 (Tex.App.—Eastland, 1988,
no pet.) . . . . . . . . . . . . . . . . . . 12, 15

State v. Johnson,
219 S.W.3d 386 (Tex.Crim.App. 2007). . . . . . . 30

Stevenson v. State,
2015 Tex. App. LEXIS 387 (Tex.App.—Fort Worth
2015). . . . . . . . . . . . . . . . . . . . . . 29

Tamez v. State,
980 S.W. 2d 845 (Tex.Crim.App. 1998) . . . . . . 22

5
 STATUTES
Tex.Health and Safety Code,
Chapter 841. . . . . . . . . . . . . . . . . 28, 32

Tex.Health and Safety Code,
§841.085 . . . . . . . . . . . . . . . . . . . 13

Tex.Health and Safety Code,
§841.062. . . . . . . . . . . . . . . . . . . . .28

Tex.Health and Safety Code,
§841.062(a). . . . . . . . . . . . . . . . . . . 31

Tex.Health and Safety Code,
§841.081(a). . . . . . . . . . . . . . . . . 29, 30

Tex.Health and Safety Code,
§841.082. . . . . . . . . . . . . . . . . . . . 28

Tex.Health and Safety Code,
§841.085(a). . . . . . . . . . . 29, 30, 32, 34, 36

Rules
Tex. R. App. P.,
11. . . . . . . . . . . . . . . . . . . . . . . 28

Tex. R. App. P.
25.2(g) . . . . . . . . . . . . . . . . . . 20, 24

Other Authorities

Acts 1999, 76th Leg., ch. 1188, § 4.01. . . . . . . 31

Acts 2007, 80th Leg., ch. 1219, § 8. . . . . . . . 31

6
 PD-0122-15

IN THE TEXAS COURT OF CRIMINAL APPEALS

ERIC DWAYNE STEVENSON v. THE STATE OF TEXAS

On Discretionary Review
Of Appeal No. 02-13-00537-CR
In the Second Court of appeals of Texas
at Fort Worth
___________________________________________________

APPELLANT’S BRIEF
___________________________________________________

TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
This appeal has resulted from a criminal
prosecution for violation of civil commitment
requirements for sexually violent predators. (C.R.
Vol. 1, p. 123). The jury was charged on three
separate counts of the same offense. (C.R. Vol. 1,
p. 104). Appellant was found guilty on all three
counts by a jury. The jury assessed punishment at

7
seventeen years on each count. (C.R. Vol. 1, p. 123-
138).

STATEMENT REGARDING ORAL ARGUMENT

This Court’s order granting Mr. Stevenson’s

discretionary review petition stated that oral

argument would not be permitted.

QUESTIONS PRESENTED

QUESTION NUMBER ONE: The convictions on Count

I, Count II, and Count III are for the same offense

for double jeopardy purposes.

QUESTION NUMBER TWO: The trial court had no

jurisdiction in this case because the prior

jurisdictional judgment was on appeal and was,

therefore, not a final judgment.

QUESTION NUMBER THREE: The trial court erred

by denying Appellant’s motion for directed verdict.

QUESTION NUMBER FOUR: The trial court erred by

denying Appellant’s motion to quash the indictment.

QUESTION NUMBER FIVE: The trial court erred by

sustaining the State’s relevance objection to

8
Appellant’s proffered evidence that the commitment

order was on appeal.

STATEMENT OF FACTS

After being found to be a sexually violent

predator, the Appellant was sent to a halfway house

in Tarrant County. After a short time, he decided

to remove his ankle monitor, leave the facility, and

visit his child and the child’s mother. (R.R. Vol.

4, p. 45-49). He was arrested some four hours later

at the home of his child and the child’s mother.

(R.R. Vol. 4, p. 94). Based on this, he was

subsequently charged with several counts of

violation of a civil commitment order by a sexually

violent predator. (C.R. Vol. 1, p. 5-7).

SUMMARY OF THE ARGUMENT

The convictions on Count I, Count II, and Count

III are for the same offense for double jeopardy

purposes. Appellant was convicted of three separate

counts of the same offense. (C.R. Vol. 1, p. 123-

139). Therefore, two of the three counts are barred

9
under the double jeopardy provisions of the Texas

and Federal Constitutions.

Furthermore, the trial court had no jurisdiction

in this case because the prior jurisdictional

judgment was on appeal and was, therefore, not a

final judgment. The said jurisdictional judgment

which found that Appellant was a sexually violent

predator was on appeal at the time this case was

tried. The mandate issued on December 3, 2013, which

was five weeks after the trial of this case.

Therefore, the trial court had no jurisdiction to

hear the case, and the convictions should be

reversed. For these same reasons, the trial court

erred in denying Appellant’s motion to quash the

indictment, denying Appellant’s motion for directed

verdict, and by sustaining the State’s relevance

objection to Appellant’s proffered evidence that the

commitment order was on appeal.

Also, the elements of the non-penal-code

10
criminal offense defined in Section 841.085(a) of

Chapter 841 of the Texas Health and Safety Code

are that a person violates a civil commitment

requirement “after having been adjudicated and

civilly committed as a sexually violent predator.”

It cannot be said that there is any evidence (or

that there is legally sufficient evidence) to

support a person’s conviction under Section

841.085(a) when the evidence conclusively and

undisputedly establishes that this person was not

an “adjudicated” sexually violent predator when he

allegedly violated a civil commitment requirement.

And this person cannot have this status of an

“adjudicated” sexually violent predator until his

commitment order is final.

ARGUMENT QUESTION NUMBER ONE

QUESTION NUMBER ONE RESTATED: The convictions

on Count I, Count II, and Count III are for the same

offense for double jeopardy purposes.

11
 APPLICABLE LAW: Due to the fact that the

statute that allows for civil commitment for sexually

violent predators is relatively new, there are no

cases specifically on point. Therefore, the Court

of Appeals used a case that has nothing to do with a

civil commitment order in order to overrule

Appellant’s first issue, stating that each separate

violation of the commitment order is a separate

offense. The case was a loan fraud case and is in

no way on point. However, there are cases involving

analogous situations. The law relating to double

jeopardy when multiple convictions are handed down

at the same time, as in this case, is well-developed.

For example, two separate convictions for possession

of marijuana and delivery of the same marijuana is a

violation of the double jeopardy provisions of the

Texas and United States Constitutions. Gongora v.

State, 916 S.W.2d 570, 577 (Tex.App.—Houston 1st

Dist. 1996, PDRR), State v. Baker, 761 S.W.2d 465,

467 (Tex.App.—Eastland, 1988, no pet.), Lopez v.

12
State, 108 S.W.3d 293, 300 (Tex.Crim.App. 2003).

Also, two separate convictions for Burglary of a

Habitation when there is two victims but only one

unlawful entry is also barred by the double jeopardy

provisions of the Texas and United States

Constitutions. Ex Parte Manuel Cavazos, 203 S.W.3d

333,337 (Tex.Crim.App. 2006). An unpublished

memorandum opinion out of the Texarkana Court of

Appeals cited Cavazos for the same proposition. The

case, while not authoritative, could be helpful.

Mobley v. State, 2008 WL 4414254 (Tex.App.—Texarkana

2008, no pet.).

A double jeopardy complaint that a defendant was

convicted of the same offense multiple times during

the same trial can be raised for the first time on

appeal, as is cited below:

. . . because of the fundamental nature of double
jeopardy protections, a double jeopardy claim
may be raised for the first time on appeal . .
. when the undisputed facts show the double
jeopardy violation is clearly apparent on the
face of the record and when enforcement of usual
rules of procedural default serves no legitimate

13
 state interest. Gonzalez v. State, 8 S.W.3d
640, 643 (Tex.Crim. App. 2000).

The Court in Gonzalez went on to say that when the

two disputed convictions occurred in the same court,

on the same day, before the same judge, and were

based on the same evidence, as was the case in

Duckett v. State, 454 S.W.2d 755 (Tex.Crim.App.

1970), there is clearly no state interest that would

be served by requiring an objection in order to

preserve the jeopardy issue. Gonzalez v. State, 8

S.W.3d 640, 643 (Tex.Crim. App. 2000).

When multiple convictions result from one

trial for similar or identical offenses, the question

of whether the double jeopardy provisions are

violated is determined by looking at the legislative

intent as to the allowable unit of prosecution.

The allowable unit of prosecution for burglary

is the unlawful entry, while the allowable unit of

prosecution for an assaultive offense is each

complainant, as is cited below:

14
 The allowable unit of prosecution for an
assaultive offense is each complainant. . .
Burglary, however, is not an assaultive offense;
rather, its placement within Title 7 indicates
that the legislature determined burglary to be
a crime against property. Thus, the complainant
is not the appropriate allowable unit of
prosecution in a burglary; rather, the allowable
unit of prosecution in a burglary is the unlawful
entry. Applicant’s convictions violate double
jeopardy because he was punished multiple times
for a single unlawful entry. Ex Parte Manuel
Cavazos, 203 S.W.3d 333,337 (Tex.Crim.App.
2006).

The following is another example: The allowable unit

of prosecution in a drug case is the illegal

substance. Gongora v. State, 916 S.W.2d 570, 577

(Tex.App.—Houston 1st Dist. 1996, PDRR), State v.

Baker, 761 S.W.2d 465, 467 (Tex.App.—Eastland, 1988,

no pet.), Lopez v. State, 108 S.W.3d 293, 300

(Tex.Crim.App. 2003).

ARGUMENT: The convictions on Count I, Count

II, and Count III were for the same offense for

double jeopardy purposes. Appellant was convicted

of three separate counts of violation of civil

commitment requirements for sexually violent

predators. Again, there are no Texas cases that

15
explore the allowable unit of prosecution in a

violation of civil commitment requirements for

sexually violent predators. However, it would appear

that the allowable unit of prosecution would be the

violation of one or more of the rules contained in

the commitment order. The State will probably argue

that each separate violation constitutes the

allowable unit of prosecution. However, there is

nothing contained in the statute that would indicate

that the legislature intended multiple punishments

for each separate violation of the order.

Chapter 841 of the Health and Safety Code

provides the regulations for civil commitment of

sexually violent predators. Section 841.085

contains the criminal penalty for the offense:

(a) 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(b) An
offense under this section is a felony of the
third degree. . . (Texas Health and Safety Code
§841.085).

16
Above-mentioned Section 841.082 provides a list of

seven requirements that must be included in the

order. There is an eighth requirement listed, which

is any other requirements determined necessary by

the judge. Some of the eight mandatory requirements

listed in the statute are written very broadly, which

indicates that the listed requirements could

actually number a lot more than eight. For example:

The requirement four states that the person must

comply with all written requirements imposed by the

case manager or otherwise by the Office of Violent

Sex Offender Management. These requirements could

be numerous. If the legislature intended that each

violation of these numerous requirements could be a

separate offense, it would appear that they would

have specifically stated so. After all, failure to

comply with any one of the requirements would most

likely not be illegal for anyone who had not been

found to be a sexually violent predator under the

statute. It would not be fundamentally fair to

17
impose multiple felony punishments for what would

usually be very minor infractions of the rules.

Doing so would be like allowing multiple convictions

in a probation revocation proceeding because the

probationer violated multiple conditions of

probation. A 2003 United States Supreme Court case

contains language that substantiates this argument.

The Court stated that a sex offender who fails to

comply with the reporting requirements may be

subjected to a criminal prosecution for that failure.

Smith v. Doe, 538 U.S. 84, 101,102, 123 S.Ct. 1140,

155 L.Ed.2d 164 (2003). The language is that if one

fails to comply with the requirements, he or she may

be subjected to a [one] criminal prosecution.

‘Criminal prosecution’ is singular which indicates

only one single prosecution for multiple violations.

The multiple punishments in this case violate double

jeopardy, and two of the three convictions should be

vacated.

18
 In the instant case, Trial Counsel did not object

to the jeopardy violation. However, the jeopardy

violation is clear from the face of the record, and

there is no State interest in requiring an objection

in order to preserve error when the two convictions

happened on the same day, in the same court, and in

front of the same judge. Two of the cases are barred

under double jeopardy provisions. Therefore, the

cases should be reversed.

ARGUMENT QUESTION NUMBER TWO

QUESTION NUMBER TWO RESTATED: The trial court

had no jurisdiction in this case because the prior

jurisdictional judgment was on appeal and was,

therefore, not a final judgment.

APPLICABLE LAW: It is well-settled that a

jurisdictional challenge may be raised for the first

time on appeal. Rabb v. State, 730 S.W.2d 751, 752

(Tex.Crim.App. 1987), Holberg v. State, 38 S.W.3d

137, 139 n.9 (Tex.Crim.App. 1987). When a criminal

conviction is on appeal, the judgment is not a final

19
judgment until the appellate court affirms the

conviction and issues its mandate. Jordan v.

State, 36 S.W.3d 871, 875 (Tex.Crim.App. 2001). A

trial court does not have jurisdiction over a case

until the mandate has issued. (Tex. Rules App.

Proc., §25.2 (g).

Due to the fact that the statute which allows

for civil commitment for sexually violent predators

is relatively new, there are no cases specifically

on point. However, there are cases involving

analagous situations. The law is clear that

convictions must be final convictions in order to be

used for enhancement purposes. The courts have

followed this rule even when the word ‘final’ is not

included in the applicable statute. Jordan v. State,

36 S.W.3d 871, 873 (Tex.Crim.App. 2001). Also,

convictions must be final convictions before the

convictions can preclude a person from getting

probation. Jordan v. State, 36 S.W.3d 871, 874

20
(Tex.Crim.App. 2001), Milburn v. State, 201 S.W.3d

749 (Tex.Crim.App. 2006).

Probably the most analagous situation deals with

DWI cases that are felony offenses because the

defendant has two prior DWI convictions. The prior

convictions must be final convictions. If a prior

DWI conviction is on appeal, it is not a final

conviction. Jordan v. State, 36 S.W.3d 871, 875

(Tex.Crim.App. 2001). However, the burden is on the

defendant to demonstrate that a judgment which seemed

regular on its face was not in fact final at the

relevant point in time, by showing that a motion for

new trial or a notice of appeal had been filed.

Milburn v. State, 201 S.W.3d 749, 753 (Tex.Crim. App.

2006). A prior DWI conviction used to enhance a

misdemeanor DWI to that of a felony is jurisdictional

because the felony court would not have jurisdiction

over the DWI without the enhancement conviction.

Tamez v. State, 980 S.W. 2d 845, 847 (Tex.Crim.App.

1998). Likewise, in a criminal prosecution for a

21
violation of a commitment order of a sexually violent

predator, the trial court would not have jurisdiction

over the case absent the civil commitment judgment.

The existence of the civil commitment is an essential

element of the offense, just as the prior DWI

convictions are essential elements of a felony DWI

prosecution. Tamez v. State, 980 S.W.2d 845, 847

(Tex.Crim.App. 1998).

ARGUMENT: The trial court had no jurisdiction

in this case because the prior jurisdictional

judgment was on appeal and was, therefore, not a

final judgment. The prosecution may argue that the

civil commitment order is not a criminal conviction,

and, therefore, the law as to the finality of

criminal convictions is inapplicable. However, such

an argument would not take into account the fact that

the existence of a civil commitment is an essential

element of the offense, just as the prior DWI

convictions are essential elements of a felony DWI

prosecution. The whole purpose of the finality

22
requirements is to stimulate reliability and

uniformity. “The finality concept exists in part to

prevent the necessity of a trial judge being placed

in the position of trying to predict what an

appellate court might do in a pending case and to

prevent their judgments from being overturned

because of subsequent events that occur in a pending

case.” Jordan v. State, 36 S.W.3d 871, 875

(Tex.Crim.App. 2001). The Jordan opinion also

indicates that allowing a felony conviction to occur,

when there is a possibility of acquittal on the

appeal of the underlying judgment, would be

problematic and unjust. In trial, the prosecutor

for the State argued to the trial judge that the

commitment statute states that the commitment order

is effective immediately on entry of the order. It

is true that Section 84.081 states just that.

However, it does not state anything about whether a

pending appeal stays any enforcement rights created

by the statute. When criminal defendants are placed

23
on probation, the conditions of probation are also

effective immediately. Nonetheless, the perfection

of an appeal, followed by the filing of the record,

stays any further actions of the trial court in the

case until the appeals court affirms the conviction

and mandate is issued. (Texas Rules of App. Proc.

§25.2g). This statute exists to stimulate uniformity

and reliability. This legitimate interest is just

as prevalent in the instant case as in probation

cases.

The State would like to argue that the Appellant

failed to preserve the issue for appeal because he

did not get a copy of the notice of appeal of the

commitment order into the record. That argument

would be misplaced because Appellant did get the

notice of appeal admitted during the hearing on his

motion to quash the indictment. (R.R. Vol. 2, p.

4). It was admitted without objection. Appellant

also made multiple attempts to get evidence of the

appeal in the record during trial. Trial Counsel

24
asked a witness if she was aware that Appellant had

filed a notice of appeal of the commitment order.

The trial judge granted the State’s relevancy

objection. (R.R. Vol. 4, p. 68). Again, Appellant

filed a motion to quash the indictment and had a pre-

trial hearing on the motion which was based on the

appeal issue. The trial judge denied the motion.

(R.R. Vol. 2, p.1-10). After the State rested,

Appellant made a motion for directed verdict again

arguing that the commitment order was on appeal and

that the trial court had no jurisdiction. (R.R. Vol.

5, p. 8-10). The commitment order was still on

appeal at the time of this trial and was, therefore,

not a final order. Therefore, the trial court had

no jurisdiction over the case, and the conviction

should be reversed.

ARGUMENT QUESTION NUMBER THREE

Question Number Three Restated: In

addressing Appellant’s evidentiary sufficiency

challenge through his motion for directed

25
verdict on the basis that there was no final

civil commitment order, the Fort Worth Court of

Appeals erred by deciding that “the issuance of

mandate of that order was not a necessary

precondition for imposing criminal sanctions

for its disobedience.”

The trial court erred by denying Appellant’s

motion for directed verdict. (R.R. Vol. 5, p. 8-

10). At the time of the hearing on the motion, the

commitment order was not final because it was on

appeal. Therefore, the trial court had no

jurisdiction over the case, and the motion for

directed verdict should have been granted. The

analysis is the same as in Question Two, and will

not be repeated here. However, even without

considering the jurisdictional argument, the

language of the commitment statute indicates that

criminal penalties are not warranted unless the

person is adjudicated and civilly commited as a

26
sexually violent predator prior to his or her

violations of the commitment order.

It should be noted that John C. Moncure, with

the State Counsel for Offenders, filed an Amicus

Curiae Brief in this Cause. Appellate Counsel is in

agreement with the Amicus Curiae Brief and hereby

adopts the analysis. Out of an abundance of caution,

the remainder of this argument for Question Three is

taken from the Amicus Curiae Brief and is included

herein.

A person is not adjudicated until the appeal on

the matter is completed and mandate has issued.

The criminal penalty provision for imprisoning a

civilly committed person under Chapter 841 is set

out in Section 841.085(a), and it defines the

elements of this criminal offense as:

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.

As originally enacted in 1999, this criminal
27
penalty provision provided that a “person commits

an offense if the person violates a requirement

imposed under Section 841.082.” See Acts 1999.

The Fort Worth Court of Appeals decided that

“the issuance of mandate of [Mr. Stevenson’s civil

commitment] order was not a necessary precondition

for imposing criminal sanctions for its

disobedience” (i.e., he could be criminally

prosecuted for violating this order before it

became final) because this order was “effective

immediately on entry of the order” which could not

be superseded by the filing of a notice of appeal

or by any provision in the rules of civil procedure.

See Stevenson, 2015 Tex. App. LEXIS 387 at *4. It

is true that a person can be civilly committed

immediately upon entry of the civil commitment

order under Section 841.081(a) and thus be

required to abide by all the rules of civil

commitment even before his appeal from that order

becomes final and while his appeal from that order

28
is still pending. However, just because a

commitment order is effective immediately upon

entry, it does not mean that criminal penalties can

be imposed for failure to follow the order.

According to the statute, criminal penalties can be

imposed only after t h e person has the status of an

“adjudicated” sexually violent predator. And that

can happen only when the order becomes final.

The resolution of this question turns on a

construction of the term “adjudicated” in Section

841.085(a), as it is clear from the plain language

of Section 841.085(a,) that a person cannot be

criminally prosecuted for violating a civil

commitment requirement unless he has the status of

an “adjudicated” sexually violent predator when

this violation occurs. Any doubt about the

construction of the term “adjudicated” must be

resolved in Mr. Stevenson’s favor. See State v.

Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App.

2007) (Non-penal-code criminal statutes must be

29
strictly construed with any doubt resolved in the

accused’s favor).

In construing the term “adjudicated,” it is not

dispositive that a civil commitment order is

“effective immediately” upon its entry under

Section 841.081(a,) at which time the person is

considered to be civilly committed, as this only

satisfies Section 841.085(a)’s element that this

person had been “civilly committed as a sexually

violent predator.” This does not mean that the

person also had the status of an “adjudicated”

sexually violent predator. Also, by using the term

“adjudicated,” the Legislature had to have intended

for the person’s status to be something more than

“civilly committed as a sexually violent predator.”

The term “adjudicated” has a very specific meaning,

and it seems obvious that the legislature would be

cognizant of that fact. See Boykin v. State, 818

S.W.2d 782, 785-86 (Tex. Crim. App. 1991). It seems

apparent that the Legislature m e a n t for the term

30
“adjudicated” to include an appeal and issuance of

the appellate court’s mandate. 76th Leg., ch. 1188,

§ 4.01. This criminal penalty provision was amended

to its current version in 2007. See Acts 2007,

80th Leg., ch. 1219, § 8. See id.

Other provisions in Chapter 841 also support

this construction of “adjudicated.” In

describing the Chapter 841 adjudicatory process

in Section 841.062 entitled “DETERMINATION OF

PREDATOR STATUS,” the Legislature provided in

Section 841.062(a) that the factfinder must make

this determination beyond a reasonable doubt.

The Legislature also provided in Section

841.062(a) that a person “is entitled to appeal the

determination [of predator status].” This shows

that the Legislature intended that an appeal be

part of the adjudicatory process under Chapter 841

for determining a person’s predator status.

This is also consistent with this Court’s

decision in Ex Parte Jimenez, 361 S.W.3d 679 (Tex.

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Crim. App. 2012). The issue in Jimenez was whether

the defendant’s felon-in-possession-of-a-firearm

conviction was “void” because the defendant later

successfully challenged in a habeas corpus

proceeding his predicate felony conviction (rape of

a child) that established his status as a

“convicted” felon in the firearm case. See Jimenez,

361 S.W.3d at 681-82. This Court decided that

Jimenez’ felon-in-possession-of-a-firearm

conviction could not be “void” because he had the

status of a “convicted” felon when he possessed the

firearm. See Jimenez, 361 S.W.3d at 682-684.

It is likely that this Court would have

decided this question differently in Jimenez had

the State prosecuted Jimenez on the felon-in-

possession-of-a-firearm charge while Jimenez’

appeal from the judgment in the predicate felony

(rape of a child) was still pending, since this

would prevent Jimenez from having the status of a

“convicted” felon when he possessed the firearm.

32
See Fletcher v. State, 214 S.W.3d 5, 6 (Tex. Crim.

App. 2007) (i.e. A “conviction” from which an appeal

has been taken is not considered a “final

conviction” until the “conviction” is affirmed by

the appellate court, and that court’s mandate of

affirmance becomes final). Similarly, a person

should not be considered to have the status of an

“adjudicated” sexually violent

predator while his civil commitment appeal is still

pending.

Michael Wayne Bohannan’s case should also be

instructive in construing the term “adjudicated.”

Mr. Bohannan was convicted of one count of

violating Section 841.085(a) and was assessed an

enhanced sentence of life in prison, based on

multiple violations of a civil-commitment order

that the Beaumont Court reversed in Bohannan’s

appeal in the civil commitment case, because the

trial court excluded the testimony of Bohannan’s

33
only expert witness. (Bohannan’s civil commitment

case turned almost exclusively on the testimony of

two of the S tate’s expert witnesses.) See Bohannan

v. State, 2014 Tex. App. LEXIS 11825 at **3-6 (Tex.

App.—Beaumont, delivered October 29, 2014, no pet.)

(mem. opinion). All of these violations occurred

during the pendency of Bohannan’s appeal in the

civil commitment case, and some of them even

occurred after the Beaumont Court decided that

Bohannan’s judgment in the civil commitment case

should be reversed. See Bohannan, 2014 Tex. App.

LEXIS 11825 at *4 (The Beaumont Court decided that

Bohannan’s civil commitment judgment should be

reversed on July 22, 2010, and Bohannan’s

indictment in the criminal case alleged that

Bohannan violated this civil commitment judgment on

numerous occasions between February 14, 2009 and

April 24, 2011). The State did not re-prosecute

Bohannan in the civil commitment case upon

issuance of the Beaumont Court’s mandate in that

34
case, apparently because of the life sentence

Bohannan received in the criminal case.

The Legislature could not have possibly

intended for a person like Bohannan to be sent to

prison for life for violating a non-final,

reversed-on-appeal civil commitment order that no

one can be sure should have ever been entered in

the first place, because the trial court prevented

this person from presenting a defense when it

excluded his only expert and because the State

decided not to re-prosecute the civil commitment

case once the State obtained a lengthy prison

sentence in the criminal case. Construing the term

“adjudicated” in Section 841.085(a) to include an

appeal and issuance of the appellate court’s

mandate would prevent this from happening in the

future.

The Beaumont Court recently handed down an

opinion that could be read as deciding that a

person’s status as an “adjudicated” sexually

35
violent predator when he violated the civil

commitment requirements is a defensive issue and

not an element of the offense that the State is

required to prove under Section 841.085(a). See

Smith v. State, 2014 Tex. App. LEXIS 10117 (Tex.

App.—Beaumont, delivered September 10, 2014, no

pet.) (mem. opinion). According to the Beaumont

Court’s opinion in Smith, Smith filed a motion to

quash his indictment, claiming (as Mr. Stevenson

does in this case) that he could not be criminally

prosecuted for violating a civil commitment order

that was non-final and still on appeal. See Smith,

2014 Tex. App. LEXIS 10117 at *3. The Beaumont

Court, however, reframed this issue and decided,

“Smith’s argument that he was not required to

comply with an order that had been appealed is a

defensive theory that is not relevant to whether

the indictment should have been quashed.” See

Austin v. State, No. PD-1431-14 (Tex.Crim.App.,

delivered March 18, 2015) (per curiam opinion not

36
designated for publication) (court of appeals

“erroneously re-framed the issue raised” when it

should have addressed the argument that was

actually raised).

The Beaumont Court’s opinion in Smith should

have no precedential value in deciding the issue

presented here, as this decision did not address

this issue. With respect to the issue that it did

address, no claim has been made in this case that

Mr. Stevenson “was not required to comply with an

order that had been appealed.” The claim is that he

cannot be criminally prosecuted for violating the

order. To the extent that the Beaumont Court’s

decision in Smith could be read to suggest that the

issue presented here is a defensive issue, this

decision is contrary to well-settled law. See

generally Giesberg v. State, 984 S.W.2d 245 (Tex.

Crim. App. 1998) (The case discusses what does and

does not constitute a defensive issue).

Without any analysis or citation to any

37
authority, the Beaumont Court also stated in

Bohannan’s appeal in his criminal case, for

violating the civil commitment order, that Bohannan

violated this civil commitment order “at a time

when Bohannan had the status of a sexually violent

predator.” See Bohannan, 2014 Tex.App. LEXIS 11825

at *6. This statement, however, is dicta and of no

precedential value, as no issue of Bohannan’s

status as a sexually violent predator (much less

an “adjudicated” sexually violent predator) was

ever raised in that case, and this statement was

not necessary to the decision in that case.

ARGUMENT QUESTION NUMBER FOUR

Question Number Four Restated: The trial court

erred by denying Appellant’s motion to quash the

indictment. (R.R. Vol. 2, p.4-11).

At the time of the hearing on the motion, the

commitment order was not final because it was on

appeal. The analysis in this issue is the same as

38
Questions Number Two and Three. Therefore, the

argument will not be repeated.

ARGUMENT QUESTION NUMBER FIVE

Question Number Five Restated: The trial court

erred by sustaining the State’s relevance motion to

Appellant’s proffered evidence that the commitment

order was on appeal. (R.R. Vol. 4, p. 68).

At the time of the trial, the commitment order

was not final because it was on appeal. The analysis

in this issue is the same as Questions Number Two

and Three. Therefore, the argument will not be

repeated.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Eric Dwayne

Stevenson, Appellant, prays that the convictions be

reversed and for whatever other relief he has shown

himself entitled.

Respectfully Submitted,

s/Scott Walker
_________________________
By: Scott Walker, Attorney
222 W. Exchange Avenue

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 Fort Worth, Texas 76063
(817) 478-9999
(817) 977-0163
scott@lawyerwalker.com

CERTIFICATE OF SERVICE

A copy of this brief was delivered to the Office
of the Criminal District Attorney, Tarrant County
Courthouse, 401 W. Belknap, Fort Worth, Texas, and
to the State Prosecuting Attorney, P.O Box 12405,
Austin, Texas 78711 by first class mail on the 23rd
day of June, 2015.

s/Scott Walker
______________________
Scott Walker

CERTIFICATE OF COMPLIANCE

I hereby certify that I have complied with the
font and word count requirements under Texas law
pertaining to the filing of documents in appellate
matters. This document contains 6,235 words.

s/Scott Walker
______________________
Scott Walker

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