Stevenson, Eric Dwayne ( 2015 )

PD-0122-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/25/2015 10:29:42 AM
Accepted 8/25/2015 11:17:38 AM
August 25, 2015 ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS 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 POST-SUBMISSION SUPPLEMENTAL BRIEF
§§§
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. 04656510
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 .......................................................................... 2
STATE’S SUPPLEMENTAL RESPONSE ................................................... 3
CONCLUSION AND PRAYER ................................................................... 6
CERTIFICATE OF SERVICE ..................................................................... 7
CERTIFICATE OF COMPLIANCE .............................................................. 8
i
INDEX OF AUTHORITIES
CASES PAGES
Ex parte Webb,
270 S.W.3d 108 (Tex. Crim. App. 2008) .................................................. 5
In re Commitment of Stevenson
2013 WL 5302591 (Tex. App. - Beaumont September 19, 2013) ............. 2
Stevenson v. State,
2015 WL 221816 (Tex. App. – Fort Worth Jan. 15, 2015) ........................ 2
STATUTES
Tex. Health & Safety Code Ann. § 841.082 ........................................ 4, 5, 6
Tex. Health & Safety Code Ann. § 841.085(a) ........................................ 4, 6
RULES
Tex. R. App. P. 9.4(e) ................................................................................. 8
Tex. R. App. P. 9.4(i) .................................................................................. 8
Tex. R. App. P. 18.1(a)(2) ........................................................................... 5
ii
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 by
• Engaging in contact with family members, casual relations or
friends who had not been approved by his program specialist or
treatment advisor;
• Failing to abide with his GPS tracking requirements by
separating from his miniature tracking device; and
• Failing to make progress in his sexually violent predator
treatment program resulting in his discharge.
(C.R. I:104-11). The jury found the repeat offender notice to be true, and
sentenced him to seventeen years’ confinement and a $5000 fine for each
1
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, 2015)
(not designated for publication).
This Court granted the appellant’s petition for discretionary review on
April 29, 2015. The State filed its brief on July 16, 2015. This cause was
submitted on August 5, 2015. See Stevenson v. State
(http://www.search.txcourts.gov/Case.aspx?cn=PD-0122-15&coa=coscca).
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. (R.R. IV:38, 42, VIII:State’s Exhibits #1 & 2). 1 The appellant
began his civil commitment on December 27, 2011, when he was assigned
to a transitional living center in Fort Worth. (R.R. IV:37, 55).
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) (not designated for publication).
2
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 remove his GPS device or have contact with his
girlfriend. (R.R. IV:49-51, IV:150-151).
STATE'S SUPPLEMENTAL RESPONSE
The appellant’s conviction should be reformed to reflect a single
count of violating his civil commitment requirements due to recent
legislative changes to the civil commitment statutes.
In the 2015 session, the Texas Legislature revised the statutory
language for criminally prosecuting sexually violent predators for violating
their civil commitment requirements as follows:
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(a)(1), (2), (4), or (5).
See 2015 Tex. Sess. Law Serv. Ch. 845 (S.B. 746) §19 (to be codified at
Tex. Health & Safety Code Ann. § 841.085(a)). The Legislature also
revised the civil commitment requirements as follows:
Before entering an order directing a person's civil commitment, the
3
judge shall impose on the person requirements necessary to ensure
the person's compliance with treatment and supervision and to
protect the community. The requirements shall include:
(1) requiring the person to reside where instructed by the office;
(2) prohibiting the person's contact with a victim of the person;
(3) requiring the person's participation in and compliance with the
sex offender treatment provided by the office and compliance with
all written requirements imposed by the office;
(4) requiring the person to:
(A) submit to tracking under a particular type of tracking
service and to any other appropriate supervision; and
(B) refrain from tampering with, altering, modifying, obstructing,
or manipulating the tracking equipment; and
(5) prohibiting the person leaving the state without prior
authorization from the office.
See 2015 Tex. Sess. Law Serv. Ch. 845 (S.B. 746) §13 (to be codified at
Tex. Health & Safety Code Ann. § 841.082(a)). These statutory changes
eliminated the criminal prosecution of civilly committed sexually violent
predators for:
• Possessing or using alcohol, inhalants or a controlled
substance;
• Failing to participate or comply with the sex offender treatment
program;
• Failing to comply with written requirements imposed by the
4
office or the case manager;
• Changing their residence without authorization from the judge;
and
• Violating any other requirement determined necessary by the
judge.
See former Tex. Health & Safety Code Ann. § 841.082. These statutory
changes apply to the appellant because his conviction was not final on
June 17, 2015. 2 See 2015 Tex. Sess. Law Serv. Ch. 845 (S.B. 746) §§41
& 44.
The 2015 statutory changes do not completely invalidate the
appellant’s conviction because one of his violations remains a valid basis
for criminal prosecution. The appellant was convicted of violating the
requirements of his civil commitment by:
1. Engaging in contact with family members, casual relations or
friends who had not been approved by his program specialist or
treatment advisor;
2. Failing to abide with his GPS tracking requirements by
separating from his miniature tracking device; and
3. Failing to make progress in his sexually violent predator
2 A conviction in which an appeal has been taken is not final until the Court
of Appeals has issued its mandate to the trial court. Ex parte Webb, 270
S.W.3d 108, 111 (Tex. Crim. App. 2008). Mandate does not issue before
the Court of Criminal Appeals rules on a petition for discretionary review.
Tex. R. App. P. 18.1(a)(2).
5
treatment program resulting in his discharge.
(C.R. I:104-11).
The State acknowledges that violations #1 and 3 are no longer valid
bases for a criminal prosecution; however, violation #2 (tampering with,
obstructing or manipulating his tracking equipment by separating from it;
thereby, removing himself from any tracking) remains a valid basis for
criminal prosecution. See Tex. Health & Safety Code Ann. §§ 841.082(a),
841.085(a). Thus, the appellant’s convictions should be reformed to reflect
this single criminal violation of his civil commitment requirements.3
CONCLUSION AND PRAYER
The appellant’s convictions for violating the civil commitment
requirements for sexually violent predators should be reformed to reflect a
single criminal violation.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
3 Reformation of the appellant’s convictions to reflect a single criminal
violation of his civil commitment requirements renders moot his ground for
review that his multiple convictions violate his protection against double
jeopardy.
6
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. 04656510
COAAppellatealerts@tarrantcountytx.gov
LISA MCMINN
State Prosecuting Attorney
Austin, Texas
CERTIFICATE OF SERVICE
True copies of the State's post-submission supplemental brief have
been electronically served on opposing counsel, the Hon. 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 25th day of August, 2015.
/s/ Steven W. Conder
STEVEN W. CONDER
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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 827 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/supplemental
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