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
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“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.
31
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
39
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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