PD-0122-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/16/2015 11:18:18 AM
July 16, 2015 Accepted 7/16/2015 11:56:50 AM
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA
CLERK
OF TEXAS
ERIC DWAYNE STEVENSON, §
APPELLANT §
§
v. § NO. PD-0122-15
§
THE STATE OF TEXAS, §
APPELLEE §
ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02-13-
00537-CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS
DISTRICT OF TEXAS.
§ § §
STATE'S BRIEF ON THE MERITS
§ § §
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR
Chief, Post-Conviction
STEVEN W. CONDER, Assistant
Criminal District Attorney
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
State Bar No. 04556510
COAAppellatealerts@tarrantcountytx.gov
LISA MCMINN
State Prosecuting Attorney
Austin, Texas
TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................ ii
STATEMENT OF THE CASE ................................. 1
STATEMENT OF FACTS ................................... 3
SUMMARY OF STATE’S REPLIES ........................... 7
STATE’S REPLY TO APPELLANT’S FIRST GROUND FOR REVIEW:
DOUBLE JEOPARDY ..................................... 9
A Allowable Units of Prosecution ................. 11
B. Units of Prosecution Shown ..................... 15
C. Conclusion ..................................... 16
STATE’S REPLY TO APPELLANT’S SECOND GROUND FOR REVIEW:
TRIAL COURT JURISDICTION ........................... 17
STATE’S REPLY TO APPELLANT’S THIRD GROUND FOR REVIEW:
DENIAL OF MOTION TO QUASH INDICTMENT ............... 21
STATE’S REPLY TO APPELLANT’S FOURTH GROUND FOR REVIEW:
DENIAL OF DIRECTED VERDICT ......................... 24
STATE’S REPLY TO APPELLANT’S FIFTH GROUND FOR REVIEW:
EXCLUSION OF EVIDENCE .............................. 27
CONCLUSION AND PRAYER ............................... 30
CERTIFICATE OF SERVICE .............................. 30
CERTIFICATE OF COMPLIANCE ............................ 31
i
INDEX OF AUTHORITIES
CASES PAGES
Arbuckle v. State,
132 Tex. Crim. 371, 105 S.W.2d 219
(Tex. Crim. App. 1937).............................. 18
Bays v. State,
396 S.W.3d 580 (Tex. Crim. App. 2013)............... 28
Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991)............... 19
Brown v. Ohio,
432 U.S. 161, 97 S.Ct. 2221
53 L.Ed.2d 187 (1977)............................... 10
Crabtree v. State,
389 S.W.3d 820 (Tex. Crim. App. 2012)............... 28
Ex parte Benson,
459 S.W.3d 67 (Tex. Crim. App. 2014)................ 10
Fletcher v. State,
214 S.W.3d 5 (Tex. Crim. App. 2007)................. 17
Gonzales v. State,
304 S.W.3d 838 (Tex. Crim. App. 2010)............... 12
Hardy v. State,
187 S.W.3d 232 (Tex. App. -- Texarkana
2006, pet. refused)................................. 29
Huffman v. State,
267 S.W.3d 902 (Tex. Crim. App. 2008)............... 11
ii
In re Commitment of Fisher,
164 S.W.3d 637 (Tex. 2005).......................... 18
In re Commitment of Lowe,
151 S.W.3d 739 (Tex. App. - Beaumont
2004, pet. denied).............................. 19, 26
In re Commitment of Richards,
202 S.W.3d 779 (Tex. App. – Beaumont
2006, pet. denied).................................. 18
In re Commitment of Stevenson,
2013 WL 5302591 (Tex. App. – Beaumont
September 19, 2013, no pet.)..................... 3, 18
Jones v. State,
323 S.W.3d 885 (Tex. Crim. App. 2010)....... 11, 13, 14
Long v. Castle Tex. Prod. Ltd. P'ship,
426 S.W.3d 73 (Tex. 2014)........................... 18
Miller v. State,
333 S.W.3d 352 (Tex. App. - Fort Worth
2010, pet. refused)................................. 22
Rodriquez v. State,
227 S.W.3d 842 (Tex. App. – Amarillo
2007, no pet.)...................................... 28
Rotenberry v. State,
245 S.W.3d 583 (Tex. App. - Fort Worth
2007, pet. refused)................................. 22
Smith v. Doe,
538 U.S. 84, 123 S.Ct. 1140
155 L.Ed.2d 164 (2003).............................. 13
iii
Smith v. State,
2014 WL 4460420 (Tex. App. – Beaumont
September 10, 2014, no pet.) ......................... 23
Speights v. State,
___ S.W.3d ___, 2015 WL 3988969
(Tex. Crim. App. July 1, 2015)...................... 10
Stevenson v. State,
2015 WL 221816 (Tex. App. – Fort Worth
January 15, 2015, pet. granted)...................... 1
Thomas v. State,
454 S.W.3d 660 (Tex. App. – Texarkana
2014, pet. refused)................................. 12
Young v. State,
341 S.W.3d 417 (Tex. Crim. App. 2011)............... 12
CONSTITUTION & STATUTES
U.S. Const. amend. V .................................. 9
Tex. Code Crim. Proc. art. 11.07 §3(a) ............... 20
Tex. Health & Safety Code §841.081(a) ............ 19, 26
Tex. Health & Safety Code §841.085(a) ............ passim
Tex. Health & Safety Code §841.146(b) ................ 18
Tex. Penal Code §12.42(a)-(d) ................ 20, 28, 29
RULES
Tex. R. App. P. 9.4(e) ............................... 31
iv
Tex. R. App. P. 9.4(i) ............................... 31
Tex. R. App. P. 25.1(h) .............................. 18
Tex. R. Evid. 401 ................................ 28, 29
v
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ERIC DWAYNE STEVENSON, §
APPELLANT §
§
V. § NO. PD-0122-15
§
THE STATE OF TEXAS, §
APPELLEE §
ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02-13-
00537-CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS
DISTRICT OF TEXAS.
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was convicted of three counts of
violating the civil commitment requirements for
sexually violent predators. (C.R. I:109-11). The jury
found the repeat offender notice to be true, and
sentenced him to seventeen years’ confinement and a
$5000 fine for each count. (C.R. I:116-18).
The Court of Appeals for the Second District of
Texas overruled the appellant’s five points of error
and affirmed his conviction. Stevenson v. State, 2015
WL 221816 at *1-2 (Tex. App. – Fort Worth January 15,
1
2015, pet. granted) (not designated for publication).
On April 29, 2015, this Court granted the
appellant’s petition for discretionary review on the
following issues:
1. Are the appellant’s convictions in each count
the same offense for double jeopardy purposes?
2. Did the trial court have jurisdiction because
the appeal from his commitment order was still
pending at the time of trial?
3. Did the trial court improperly deny the
appellant’s motion to quash his indictment
because the appeal from his commitment order
was still pending at the time of trial?
4. Did the trial court improperly deny the
appellant’s motion for directed verdict because
the appeal from his commitment order was still
pending at the time of trial?
5. Did the trial court improperly exclude evidence
that his commitment order was still on appeal?
Stevenson v. State, No. PD-0122-15 (notice).
2
STATEMENT OF FACTS
On September 14, 2011, the appellant was found by a
jury to be a sexually violent predator. (R.R. IV:38,
42, VIII:State’s Exhibit #2). The trial court entered
a final judgment and order of civil commitment for
outpatient treatment against him. (R.R. IV:38, 42,
VIII:State’s Exhibits #1 & 2). 1 The trial court ordered
that the appellant’s civil commitment begin upon his
release from the Texas Department of Criminal Justice.
(R.R. IV:38, 42, VIII:State’s Exhibit #2).
Under the terms of his civil commitment, the
appellant was ordered to:
• Reside in a residential facility under contract
with the Office of Violent Sex Offender
Management;
• Participate in and comply with the course of
treatment provided by the Office;
1 The Court of Appeals for the Ninth District of Texas
affirmed the appellant’s final judgment and civil
commitment order on September 19, 2013. See In re
Commitment of Stevenson, 2013 WL 5302591 (Tex. App. –
Beaumont September 19, 2013, no pet.) (not designated
for publication).
3
• Comply with all written requirements of the
Office and his case manager; and
• Submit to tracking under a global positioning
satellite (GPS) monitor or other monitoring
system and not tamper with, alter, modify,
obstruct or manipulate the GPS monitor
frequency and comply with all written monitor
system requirements.
(R.R. IV:38, 42, VIII:State’s Exhibit #1).
On December 27, 2011, the appellant was assigned to
a transitional living center in Fort Worth for his
outpatient treatment program. (R.R. IV:37, 55). The
appellant received the supervision requirements that:
• He wear a wearable miniature tracking device
(WMTD) twenty-four hours a day, seven days a
week;
• He remain on home confinement twenty-four hours
a day, seven days a week, unless given
permission to leave; and
• He not have any contact with family members,
casual relations, or friends unless approved by
his case manager and treatment provider.
(IV:37, 39-44, VIII:State’s Exhibit #3 [requirements 1
& 10], State’s Exhibit #4 [requirement 28]).
The appellant received his treatment program
4
conditions and requirements that:
• He could be terminated from the program if he
failed to make progress;
• He could be discharged from the program if he
did not follow the rules of civil commitment,
including supervision and treatment; and
• He was required to actively participate in and
successfully complete the Outpatient Sexually
Violent Predator Treatment Program.
(R.R. IV:143-45, VIII:State’s Exhibit #5 [requirements
1, 4 & 8]).
On February 26, 2012, the appellant removed his
tracking device and left the transition center without
permission. (R.R. IV:45-46, 47-48). He was located
his girlfriend’s apartment. (R.R. IV:94-95). The
appellant had not been approved to have contact with
family or friends, or to meet with his girlfriend.
(R.R. IV:49-51, IV:150-151).
The appellant had not been making progress in his
treatment. (R.R. IV:166-67). Specifically:
• He had a difficult time being open;
• He was not cooperative;
5
• In group sessions, he would laugh, make light of
the conversation, and did not appreciate the
seriousness of the discussion; and
• He commented that “people don’t need to get into
his business”.
(R.R. IV:153, 155-57, 167-71).
The appellant was discharged from the outpatient
treatment program after he absconded from the
transition center. (R.R. IV:169-172, VIII:State’s
Exhibit #7). His treatment provider believed that he
lacked commitment to treatment, and is dangerous due to
his highly impulsive nature and his inability to weigh
the consequences of his actions. (R.R. IV:168-71).
6
SUMMARY OF THE STATE'S REPLIES
Double Jeopardy:
Each violation of the civil commitment requirements
is an allowable unit of prosecution. The appellant’s
three convictions do not violate his double jeopardy
protection against multiple punishments.
Jurisdiction:
Civil commitment orders are effective immediately.
A prosecution for violating its requirements may occur
despite a pending appeal of that order.
Indictment:
The pendency of an appeal challenging a civil
commitment order is not relevant to the validity of an
indictment for violation its requirements.
Directed Verdict:
Civil commitment orders are effective immediately.
The conclusion of an appeal challenging that order is
7
not an element of prosecution for violating its
requirements.
Exclusion of Evidence:
The “finality” of a civil commitment order is a
question of law for the trial court. It is not
relevant to any question of fact for the jury.
8
STATE'S REPLY TO APPELLANT'S FIRST GROUND FOR REVIEW:
DOUBLE JEOPARDY
Appellant's Contention:
The appellant contends that his three convictions
are the same offense for double jeopardy purposes.
State's Reply:
Each violation of the civil commitment requirements
is an allowable unit of prosecution. The appellant’s
three convictions do not violate his double jeopardy
protection against multiple punishments.
Arguments and Authorities:
The United States Constitution guarantees that a
person shall not “be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const.
amend. V. This guarantee protects a defendant against:
(1) A second prosecution for the same offense
after acquittal;
9
(2) A second prosecution for the same offense
after conviction; and
(3) Multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225,
53 L.Ed.2d 187 (1977); Speights v. State, ___ S.W.3d
___, 2015 WL 3988969 at *2 (Tex. Crim. App. July 1,
2015).
What constitutes the “same offense” for multiple
punishment purposes is strictly a matter of legislative
intent; that is, how many different offenses or units
of prosecution did the Legislature contemplate for
which an accused should be susceptible to punishment.
Speights v. State, 2015 WL 3988969 at *2. A “units of
prosecution” analysis consists of two parts:
(1) What the allowable unit of prosecution is?
(2) How many units have been shown?
Speights v. State, 2015 WL 3988969 at *2; Ex parte
Benson, 459 S.W.3d 67, 73-74 (Tex. Crim. App. 2014).
Absent an explicit statement defining the allowable
unit of prosecution, the best indicator of legislative
10
intent is the focus or “gravamen” of the offense.
Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App.
2010).
A. Allowable Units of Prosecution
The Texas Health and Safety Code provides that a
person commits a criminal offense if, after having been
adjudicated and civilly committed as a sexually violent
predator, he violates a civil commitment requirement
imposed under section 841.082(a). Tex. Health & Safety
Code §841.085(a).
Under the “eighth grade grammar” approach for
determining legislative intent, the statutory language
that constitutes the “gravamen” of an offense is the
subject, the main verb, and the direct object. See
Jones v. State, 323 S.W.3d at 890-91; Huffman v. State,
267 S.W.3d 902, 906 (Tex. Crim. App. 2008). In section
841.085(a), the subject of the statute is “a person”,
the verb is “violates”, and the direct object is “a
civil commitment requirement”. See Tex. Health &
Safety Code §841.085(a). Thus, the “gravamen” of
11
section 841.045 is the defendant violating his civil
commitment requirements or the nature of his conduct.
In “nature of conduct” offenses, each separately
defined act within a statute typically evinces a
legislative intent that the act be construed to
constitute separate offenses and not merely different
manners and means for committing a single offense.
Gonzales v. State, 304 S.W.3d 838, 847 (Tex. Crim. App.
2010). Thus, multiple violations of the civil
commitment requirements constitute multiple offenses or
units of prosecution.
While the Court has not yet addressed this precise
issue, an apt comparison can be made to the sexual
offender registration cases where each violation of the
sexual offender registration requirements can be a
separate unit of prosecution. See Young v. State, 341
S.W.3d 417, 426-27 (Tex. Crim. App. 2011) (each failure
to comply with the change of residence notification is
a separate offense); Thomas v. State, 454 S.W.3d 660,
664 n.1 (Tex. App. – Texarkana 2014, pet. refused)
12
(each change of address is an allowable unit of
prosecution since a sex offender has a duty to report a
change of address to the proper authorities both before
and after a move). 2 See also Jones v. State, 323 S.W.3d
at 889 (in “false statement to obtain property or
credit” cases, the “gravamen” is the act of making a
materially false statement; thus, multiple false
statements give rise to multiple offenses even if made
in connection with only one credit application).
Additionally, the express language in section
841.085(a) criminalizes the violation of “a civil
commitment requirement”. See Tex. Health & Safety Code
§841.085(a). A legislative reference to an item in the
singular suggests that each instance that item occurs
is a separate unit of prosecution. Jones v. State, 323
S.W.3d at 891. As this Court pointed out:
2 Contrary to the appellant’s claim, nothing in Smith v.
Doe appears to limit the units of prosecution which
might arise from a defendant’s failure to comply with
his sexual offender registration requirements. See
Smith v. Doe, 538 U.S. 84, 101-02, 123 S.Ct. 1140,
1152, 155 L.Ed.2d 164 (2003).
13
[O]ther jurisdictions have employed what is
sometimes known as the “a/any test”: The use of
“a” before the proscribed conduct means that
the statute unambiguously proscribes each
instance of the conduct while the use of “any”
is ambiguous, and may or may not proscribe each
instance of conduct, depending on the context
of the entire statute. One court has criticized
the employment of this test while another has
cautioned that the “test” is a “valuable but
nonexclusive means to assist courts in
determining the intended unit of prosecution”
that should not be applied “mechanistically.”
We do not adopt the “a/any” test as a strict
rule, but we find it to be a helpful tool in
statutory analysis. The presence of “a” before
the term “materially false or misleading
statement” in §32.32 is at least some
indication that each “materially false or
misleading statement” constitutes a separate
unit of prosecution.
Jones v. State, 323 S.W.3d at 891-92 (citations
omitted). Thus, the Legislature’s use of “a” before
the term “civil commitment requirement” in section
841.085(a) indicates that each violation constitutes a
separate unit of prosecution.
In sum, this offense’s “gravamen” is each unique
violation of a civil commitment requirement; as such,
each violation is an allowable unit of prosecution.
14
B. Units of Prosecution Shown
The appellant’s civil commitment required that:
• He wear a wearable miniature tracking device
(WMTD) twenty-four hours a day, seven days a
week;
• He remain on home confinement twenty-four hours
a day, seven days a week, unless given
permission to leave;
• He not have any contact with family members,
casual relations, or friends unless approved by
his case manager and treatment provider; and
• He actively participate and make progress in
his outpatient treatment program.
(VIII:State’s Exhibit #3 [requirements 1 & 10], State’s
Exhibit #4 [requirement 28], State’s Exhibit #5
[requirements 1 & 8]).
The evidence showed that:
• On February 26, 2012, the appellant removed his
tracking device and left the transition center
without approval. (R.R. IV:45-46).
• The appellant was found at his girlfriend’s
apartment when he had not been approved for
contact with his girlfriend. (R.R. IV:49-51,
94-95, 150-51).
• The appellant was discharged from the treatment
program for lack of progress; specifically, he
15
was not cooperative and did not treat the
program seriously. (R.R. IV:153, 155-57, 167-
72, VIII:State’s Exhibit #7).
Thus, the evidence supports the jury’s finding that the
appellant violated at least three requirements of his
civil commitment. (C.R. I:105-11, R.R. V:35-36).
C. Conclusion
The appellant’s conviction for three separate
violations of his civil commitment requirements does
not violate his double jeopardy protection against
multiple punishments because each violation was an
allowable unit of prosecution and supported by the
evidence.
The appellant’s first ground for review should be
denied.
16
STATE'S REPLY TO APPELLANT'S SECOND GROUND FOR REVIEW:
TRIAL COURT JURISDICTION
Appellant's Contention:
The appellant contends that the trial court lacked
jurisdiction over this prosecution because his appeal
from his civil commitment order was still pending.
State's Reply:
Civil commitment orders are effective immediately.
A prosecution for violating its requirements may occur
despite a pending appeal of that order.
Arguments and Authorities:
In criminal cases, a conviction from which an
appeal has been taken is not considered to be a final
conviction until that conviction is affirmed by the
appellate court and mandate is issued. Fletcher v.
State, 214 S.W.3d 5, 6 (Tex. Crim. App. 2007). This
criminal-case finality rule derives from specific
17
statutory authority. See Arbuckle v. State, 132 Tex.
Crim. 371, 105 S.W.2d 219 (Tex. Crim. App. 1937)
(referencing Tex. Penal Code 1925 arts. 61-63). 3
A sexually violent predator commitment proceeding,
however, is not criminal matter. In re Commitment of
Fisher, 164 S.W.3d 637, 653 (Tex. 2005) (sexually
violent predator commitment proceedings are a civil
matter). A civil commitment proceeding is subject to
the rules of procedure and appeal for civil cases. In
re Commitment of Richards, 202 S.W.3d 779, 787 (Tex.
App. – Beaumont 2006, pet. denied); Tex. Health &
Safety Code §841.146(b).
In civil cases, a judgment’s finality is context-
dependent. See Long v. Castle Tex. Prod. Ltd. P’ship,
426 S.W.3d 73, 78 (Tex. 2014). Filing a notice of
appeal does not automatically suspend the enforcement
of a civil judgment. Tex. R. App. P. 25.1(h). This
3 The State does not dispute that the appellant’s civil
commitment appeal was still pending when he violated
its requirements. See In re Commitment of Stevenson,
2013 WL 5302591 (Tex. App. – Beaumont September 19,
2013, no pet.) (not designated for publication).
18
Court should instead look at the statutory language.
The Texas Health and Safety Code expressly states:
The commitment order is effective immediately
on entry of the order.
Tex. Health & Safety Code §841.081(a). This language
suggests that the Legislature intended for the civil
commitment requirements to have immediate effect and
immediate consequences for any violation. See In re
Commitment of Lowe, 151 S.W.3d 739, 743 (Tex. App. -
Beaumont 2004, pet. denied) (a civil commitment order
is effective even while the case is on appeal).
Legislative interpretation does not generally allow the
Court to ignore express statutory language. See Boykin
v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)
(where the statute is clear and unambiguous, the
Legislature must be understood to mean what it has
expressed, and it is not for the courts to add or
subtract from such a statute).
Furthermore, section 841.085 does not use the term
“final”; rather, it states “after having been
19
adjudicated and civilly committed as a sexually violent
predator under this chapter”. See Tex. Health & Safety
Code §841.085(a). By contrast, other criminal
statutes, such as the repeat offender statutes and the
habeas corpus statute refer to “final convictions” or a
defendant being “finally convicted”. See Tex. Penal
Code §12.42(a)-(d); Tex. Code Crim. Proc. art. 11.07
§3(a). The absence of any “finality” language
reinforces that the Legislature intended for the civil
commitment requirements to have immediate effect.
In sum, given the civil commitment order’s
immediate effect, the trial court had jurisdiction over
this prosecution despite the order’s pending appeal.
The appellant’s second ground for review should be
denied.
20
STATE'S REPLY TO APPELLANT'S THIRD GROUND FOR REVIEW:
DENIAL OF MOTION TO QUASH INDICTMENT
Appellant's Contention:
The appellant contends that the trial court
improperly denied his motion to quash his indictment
because his civil commitment order was pending appeal.
State's Reply:
The pendency of an appeal challenging a civil
commitment order is not relevant to the validity of an
indictment for violation its requirements.
Arguments and Authorities:
The appellant filed a pre-trial motion to quash his
indictment because his civil commitment order was
pending appeal when he violated its requirements.
(C.R. I:50-52). The trial court denied this motion.
(R.R. II:10).
In evaluating the denial of a motion to quash, an
21
indictment should be analyzed to determine whether it
states on its face the facts necessary to allege that
an offense was committed, to bar a subsequent
prosecution for the same offense, and to give the
accused notice of the precise offense with which he has
been charged. Rotenberry v. State, 245 S.W.3d 583, 586
(Tex. App. - Fort Worth 2007, pet. refused). The
indictment herein, on its face:
• Identifies the appellant as the defendant;
• Identifies the sexually violent predator
judgment and civil commitment by date and cause
number; and
• Identifies how and when the appellant
intentionally or knowingly violated its
requirements.
(C.R. I:6-8). Thus, it provided the appellant with the
requisite notice.
Whether a defendant must comply with a civil
commitment order still pending appeal is not relevant
to the issue of whether an indictment should be
quashed. See Miller v. State, 333 S.W.3d 352, 358
22
(Tex. App. - Fort Worth 2010, pet. refused)
(appellant's defense that he was confined when he
violated the civil commitment order was irrelevant to
whether the trial court should have granted a motion to
quash); Smith v. State, 2014 WL 4460420 at *1 (Tex.
App. – Beaumont September 10, 2014, no pet.) (not
designated for publication) (argument that defendant
was not required to comply with civil commitment order
still pending appeal is a defensive theory and not
relevant to whether indictment should be quashed).
Thus, the trial court properly denied the appellant’s
motion to quash his indictment.
The appellant’s third ground for review should be
denied.
23
STATE'S REPLY TO APPELLANT'S FOURTH GROUND FOR REVIEW:
DENIAL OF MOTION FOR DIRECTED VERDICT
Appellant's Contention:
The appellant contends that the trial court
improperly denied his motion directed verdict.
State's Reply:
Civil commitment orders are effective immediately.
The conclusion of an appeal challenging that order is
not an element of prosecution for violating its
requirements.
Arguments and Authorities:
The appellant moved for a directed verdict on the
basis that his civil commitment order was not final
since it was still pending appeal when he violated its
requirements. (R.R. V:8-10). The trial court denied
this motion. (R.R. V:10).
The civil commitment violation prosecution statute
24
does not use the term “final” or “finally” in
describing the civil commitment order. See Tex. Health
& Safety Code §841.085(a). It simply requires that the
State prove that the defendant had been adjudicated and
civilly committed as a sexually violent predator when
he violated his commitment requirements. See Tex.
Health & Safety Code §841.085(a).
The State proved both these elements by showing
that:
• The appellant was adjudicated as a sexually
violent predator and civilly committed on
September 14, 2011. (R.R. IV;38, 42,
VIII:State’s Exhibits #1 & 2).
• The appellant violated its requirements when:
He removed his tracking device and left
the transition center without approval.
(R.R. IV:45-46);
He was located at his girlfriend’s
apartment with whom he had not been
approved to have contact. (R.R. IV:49-51,
94-95, 150-51); and
He was discharged from the treatment
program for not being cooperative or
treating the program seriously. (R.R.
IV:153, 155-57, 167-72, VIII:State’s
25
Exhibit #7).
Thus, the trial court properly denied the appellant’s
motion for directed verdict.
Furthermore, as previously addressed, the statutory
language clearly indicates that the Legislature
intended for the civil commitment requirements to have
immediate effect and immediate consequences for any
violation. See Tex. Health & Safety Code §841.081(a);
In re Commitment of Lowe, 151 S.W.3d at 743.
The appellant’s fourth ground for review should be
denied.
26
STATE'S REPLY TO APPELLANT'S FIFTH GROUND FOR REVIEW:
EXCLUSION OF EVIDENCE
Appellant's Contention:
The appellant contends that the trial court
improperly excluded evidence that his civil commitment
order was pending appeal.
State's Reply:
The “finality” of a civil commitment order is a
question of law for the trial court. It is not
relevant to any question of fact for the jury.
Arguments and Authorities:
The trial court excluded evidence that the
appellant’s civil commitment order was pending appeal
when he violated its requirements on the State’s
relevance objection. (R.R. IV:68, 79).
Evidence is relevant if it has any tendency to make
the existence of a fact that is of consequence to the
27
determination of the action more probable or less
probable than it would be without the evidence. Tex.
R. Evid. 401. Statutory interpretation, however, is a
question of law. Bays v. State, 396 S.W.3d 580, 584
(Tex. Crim. App. 2013). Questions of law are to be
determined by the trial court and not by a jury.
Crabtree v. State, 389 S.W.3d 820, 853 n.39 (Tex. Crim.
App. 2012).
Since the legal status of the appellant’s civil
commitment order was a question of law, the trial court
properly excluded evidence that the commitment order
was pending appeal as irrelevant to any issue before
the jury. Compare Rodriquez v. State, 227 S.W.3d 842,
844 (Tex. App. – Amarillo 2007, no pet.) (trial court
properly denied the jury opportunity to decide whether
a New Mexico offense was substantially similar to
various statutory crimes mandating a life sentence
under Texas Penal Code §12.42(c)(2)(B) since whether
they are substantially similar is a question of law
involving the interpretation of the respective
28
statutes); Hardy v. State, 187 S.W.3d 232, 236 (Tex.
App. -- Texarkana 2006, pet. refused) (comparing two
statutes to determine their similarity under Texas
Penal Code §12.42(c)(2)(B) is a question of law to be
determined by the trial court and not the jury).
Furthermore, as previously addressed, the State is
not required to prove “finality”. See Tex. Health &
Safety Code §841.085(a) (State must prove that
defendant had been adjudicated and civilly committed as
a sexually violent predator when he violated his
commitment requirements). Thus, evidence regarding the
civil commitment order’s appellate status is irrelevant
to any consequential fact for the jury consideration in
determining whether the appellant violated the order’s
requirements. See Tex. R. Evid. 401.
The appellant’s fifth ground for review should be
denied.
29
CONCLUSION AND PRAYER
The Court of Appeals properly upheld the
appellant’s conviction and sentence. Therefore, the
State prays that its judgment be upheld.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR
Chief, Post-Conviction
/s/ Steven W. Conder
STEVEN W. CONDER, Assistant
Criminal District Attorney
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
State Bar No. 24073106
COAAppellatealerts@tarrantcountytx.gov
LISA MCMINN
State Prosecuting Attorney
Austin, Texas
CERTIFICATE OF SERVICE
True copies of the State's brief have been
electronically served on opposing counsel, the Hon.
30
Scott Walker (scott@lawyerwalker.com), 222 W. Exchange
Avenue, Fort Worth, Texas 76164; and the State
Prosecuting Attorney, the Hon. Lisa McMinn
(information@spa.texas.gov), P.O. Box 13046, Austin,
Texas 78711-3046, on this, the 16th day of July, 2015.
/s/ Steven W. Conder
STEVEN W. CONDER
CERTIFICATE OF COMPLIANCE
This document complies with the typeface
requirements of Tex. R. App. P. 9.4(e). It has been
prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This
document complies with the word-count limitations of
Tex. R. App. P. 9.4(i). It contains approximately 3557
words, excluding those parts exempted, as computed by
Microsoft Office Word 2010.
/s/ Steven W. Conder
STEVEN W. CONDER
c18.stevenson eric dwayne.br/cca
31