in Re Commitment of Lonnie James

Opinion issued October 7, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00734-CV
———————————
IN RE COMMITMENT OF LONNIE JAMES, Appellant
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 0579726-0101Z
MEMORANDUM OPINION
In this case, the State filed a petition seeking to have appellant, Lonnie James,
civilly committed under Texas’s Sexually Violent Predators Act (“SVP Act” or “the
Act”). See TEX. HEALTH & SAFETY CODE §§ 841.001–.153. A jury determined that
James is a sexually violent predator, and the trial court signed an order of civil
commitment.
In three issues on appeal, James contends that (1) the State presented factually
insufficient evidence to support the jury’s finding that he is a sexually violent
predator; (2) the trial court erred by granting the State’s motion for partial directed
verdict before he rested his case-in-chief; and (3) the trial court erred by refusing to
instruct the jury that it could return a verdict in his favor—that is, a verdict that he
was not a sexually violent predator—by a 10-2 vote instead of a unanimous vote.
We affirm.
Background
James has nine convictions for sexually violent offenses. He was convicted of
rape in California in 1978, received five years’ probation, and was ordered to
participate in inpatient sex offender treatment. He was also convicted of rape in
Tarrant County in 1984 and was sentenced to confinement for fifteen years. He
served approximately five years of this sentence. The complainants for both of these
offenses were adults. In 1991, while he was still on parole, James was convicted in
Harris County of three counts of aggravated kidnapping and four counts of
aggravated sexual assault of a child arising out of three different incidents with four
child complainants. The trial court assessed James’s punishment at confinement for
thirty years for each offense, with the sentences to run concurrently.
In May 2018, as James’s confinement for the 1991 convictions was coming
to an end, the Harris County District Attorney’s Office and the Special Prosecution
2
Unit filed a petition seeking to have James civilly committed as a sexually violent
predator under the SVP Act. The State alleged that James “is a repeat sexually
violent offender who suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence” and requested that the trial court
commit him for “treatment and supervision.”
Three witnesses testified at trial: Dr. Randall Price, a forensic psychologist;
Dr. Sheri Gaines, a psychiatrist; and James. Dr. Price and Dr. Gaines both reviewed
extensive records, including records describing the details of James’s past
convictions, and interviewed James. Dr. Price also completed three actuarial
measures designed to determine James’s level of psychopathy and risk for
reoffending and committing another sexually violent offense. Both witnesses
testified concerning the facts of each of James’s offenses, which they considered
relevant in determining whether James has a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence. They both testified about risk
factors for reoffending that they had identified when reviewing records and
interviewing James, as well as protective factors that operate to decrease that risk.
Dr. Price and Dr. Gaines both diagnosed James as having “other specified
paraphilic disorder, nonconsensual sex with adults and children” and “other
specified personality disorder with antisocial traits.” Both experts testified that, in
3
their professional opinion, James has a behavioral abnormality as defined by the
SVP Act.
James also testified during both the State’s case-in-chief and his own case-in-
chief. During the State’s case-in-chief, James admitted that he had pleaded guilty to
nine sexually violent offenses; that he had been hospitalized for sex offender
treatment and then placed on probation after the California offense; that he received
a fifteen-year sentence following his conviction of the Tarrant County offense; and
that he was currently serving a thirty-year sentence following his conviction of the
seven Harris County offenses. Although James admitted, with respect to the Harris
County offenses, that he kidnapped three of the four child complainants and that he
intended to have sex with these complainants, he denied sexually abusing any of the
child complainants. With respect to the California and Tarrant County offenses,
James admitted having sex with the two adult complainants but testified that it was
consensual. James testified similarly concerning his convictions and his denials of
the conduct underlying the convictions during his own case-in-chief.
Before James rested his case-in-chief, the parties and the trial court held an
off-the-record discussion concerning several issues, including the jury charge. On
the record, James objected to the trial court granting a directed verdict on the first
element of the State’s burden of proof—whether James was a repeat sexually violent
offender because he had been convicted of more than one sexually violent offense
4
and a sentence had been imposed for at least one of the offenses. James argued that
resolution of this question was “within the purview of the jury” and that “[a]ny
finding on the part of the Court might unfairly bias the jury as to their answering of
the second question,” whether James has a behavioral abnormality as defined by the
SVP Act. The trial court stated, “It’s pretty much a foregone conclusion based upon
the evidence that no reasonable juror could disagree with the fact that he is a multiple
offender and has been sentenced at least once for one of those crimes enumerated in
the charge.” The following exchange occurred between the trial court and the State:
The State: I just want to make sure the record is clear that we did ask
the Court for that directed verdict on the first element.
The Court: I think you could ask for it after the close of evidence here.
The State: Yes.
The Court: But if you are making that request right now, I will grant
that.
The State: Yes, Your Honor, we are—we’ve already rested. I think
we are entitled to make a motion at any time—
The Court: I believe so.
The State: —before the jury is instructed, but I will formally ask for
that directed verdict at this time.
The Court: All right. That motion is granted as to the directed verdict.
After the trial court granted the partial directed verdict, James briefly continued
testifying. He once again acknowledged that he had multiple convictions for sexually
violent offenses and denied that he had committed any improper sexual conduct.
5
During the charge conference, James acknowledged that a “yes” verdict under
the SVP Act—that is, a verdict that a defendant is a sexually violent predator—must
be unanimous, but he argued that the Act does not specifically require that a “no”
verdict—that is, a verdict that a defendant is not a sexually violent predator—must
be unanimous. He therefore requested a “10-2” instruction, or an instruction that the
jury could answer “no” to the question whether James is a sexually violent predator
by a vote of only ten jurors. The trial court stated that it believed both “yes” and “no”
votes should be unanimous, and it refused to give James’s requested instruction.
The jury charge contained one question: “Do you find beyond a reasonable
doubt that LONNIE JAMES is a sexually violent predator?” The charge instructed
the jury that a person is a “sexually violent predator” if the person (1) is a repeat
sexually violent offender, and (2) suffers from a behavioral abnormality that makes
the person likely to engage in a predatory act of sexual violence. The charge defined
“repeat sexually violent offender” and stated: “The Court has granted a directed
verdict that Respondent, LONNIE JAMES, has been convicted of more than one
sexually violent offense and a sentence was imposed for at least one of the offenses.
Therefore, he is a ‘repeat sexually violent offender’ as defined above.” The charge
also instructed the jury to answer “yes” or “no” to the question and stated:
A “yes” answer must be based on a belief beyond a reasonable doubt.
If you do not find beyond a reasonable doubt that the evidence supports
a “yes” answer, then answer “no.” Your verdict must be unanimous.
That means that all twelve of the jurors must agree to the answer.
6
The jury answered “yes” to the question, and the presiding juror certified that the
verdict was unanimous.
The trial court signed a civil commitment order under the SVP Act and a final
judgment ordering that James is a sexually violent predator and that he is to be civilly
committed. James filed a motion for new trial, which was overruled by operation of
law. This appeal followed.
Factual Sufficiency of Evidence
In his first issue, James argues that the State failed to present factually
sufficient evidence to support the jury’s finding that he is a sexually violent
predator.1
1
The State argues that because the burden of proof at trial in SVP cases is beyond a
reasonable doubt, factual sufficiency reviews of the evidence in SVP cases should
be abolished, as the Court of Criminal Appeals has done in criminal cases. See, e.g.,
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that Jackson
v. Virginia standard is only standard appellate court should apply in determining
whether evidence is sufficient to support each element of criminal offense beyond
reasonable doubt). James argues that we should follow the factual sufficiency
analysis that the Fort Worth Court of Appeals conducted in In re Commitment of
Stoddard. See 601 S.W.3d 879, 891–98 (Tex. App.—Fort Worth 2019), rev’d, 619
S.W.3d 665 (Tex. 2020). After James and the State had filed their appellate briefs
in this case, the Texas Supreme Court granted review and decided In re Commitment
of Stoddard. In that case, the supreme court expressly declined to abolish factual
sufficiency review in SVP cases. See In re Commitment of Stoddard, 619 S.W.3d at
676 (“[W]e hold that the ‘right of courts of appeals to review for factual sufficiency’
under the standard expressed herein ‘must continue undisturbed.’”) (quoting Pool
v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)). The court also held that the
factual-sufficiency analysis conducted by the intermediate court in Stoddard did not
comport with the appropriate appellate standard of review. Id. at 678. We therefore
follow the Texas Supreme Court’s guidance in Stoddard and conduct a factual
7
A. Standard of Review
A person is a sexually violent predator under the SVP Act if the person (1) is
a repeat sexually violent offender, and (2) suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence. TEX. HEALTH
& SAFETY CODE § 841.003(a). A person is a repeat sexually violent offender if the
person is convicted of more than one sexually violent offense and a sentence is
imposed for at least one of the offenses. Id. § 841.003(b); id. § 841.002(8) (defining
“sexually violent offense” to include offense for aggravated sexual assault of child
and aggravated kidnapping “if the person committed the offense with the intent to
violate or abuse the victim sexually”). The SVP Act defines “behavioral
abnormality” as “a congenital or acquired condition that, by affecting a person’s
emotional or volitional capacity, predisposes the person to commit a sexually violent
offense, to the extent that the person becomes a menace to the health and safety of
another person.” Id. § 841.002(2). The Act defines “predatory act” as “an act
directed toward individuals, including family members, for the primary purpose of
victimization.” Id. § 841.002(5). The factfinder shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. Id. § 841.062(a).
sufficiency review of the evidence under the standards articulated by the supreme
court.
8
A commitment proceeding under the SVP Act is the “unusual civil case
incorporating the ‘beyond a reasonable doubt’ burden of proof typically reserved for
criminal cases.” In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020).
The burden of proof at trial “necessarily affects appellate review of the evidence.”
Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Regardless of the burden of
proof at trial, however, “the jury remains ‘the sole judge of the credibility of
witnesses and the weight to be given to their testimony.’” Id. (quoting Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).
A factual sufficiency review “is premised on consideration of the entire
record.” Id. In Stoddard, the Texas Supreme Court stated:
The assumption that the factfinder resolved disputed evidence in favor
of the finding if a reasonable factfinder could do so remains. However,
rather than “disregard” disputed evidence that a reasonable factfinder
could not have credited in favor of the finding, the court must determine
whether, in light of the entire record, that evidence “is so significant
that a factfinder could not reasonably have formed a firm belief or
conviction” that the finding was true. By logical extension, in an SVP
case where the burden of proof is beyond a reasonable doubt, the
evidence is factually insufficient if, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited
in favor of the SVP finding, along with the undisputed facts that do not
support the finding, is so significant that the factfinder could not have
found beyond a reasonable doubt that the statutory elements were met.
Id. at 674–75 (quoting J.F.C., 96 S.W.3d at 266). Mere disagreement with the jury
as to the proper evidentiary weight and credibility of the evidence cannot be the basis
9
of a reversal on factual insufficiency grounds. Id. at 677. We may not substitute our
judgment for that of the jury. Id.
Thus, the appellate standard for conducting a factual sufficiency review of a
finding that a person is a sexually violent predator “is whether, in light of the entire
record, the disputed evidence a reasonable factfinder could not have credited in favor
of the verdict, along with undisputed facts contrary to the verdict, is so significant
that the factfinder could not have found beyond a reasonable doubt that the statutory
elements were met.” Id. at 678. If we reverse for factual insufficiency, we must
“detail why [we have] concluded that a reasonable factfinder could not have credited
disputed evidence in favor of the finding.” Id.
B. Trial Testimony
Dr. Randall Price is a forensic psychologist and licensed sex offender
treatment provider, and he is board certified in forensic psychology and clinical
neuropsychology. After reviewing the relevant records (including police reports and
prison records), interviewing James, reviewing the depositions of James and Dr.
Gaines, and scoring relevant actuarial measures designed to assist in determining an
individual’s risk of reoffending, Dr. Price concluded that James has a behavioral
abnormality as defined in the SVP Act that makes him likely to engage in a predatory
act of sexual violence. Dr. Price relied on James’s sexual offending history in
arriving at this opinion, and he discussed this history with James during their
10
interview. James has a total of nine sex-related convictions. The facts underlying
each of these convictions were relevant to Dr. Price’s opinion, and he testified
concerning the facts of each offense.
James’s first sex offense occurred in San Diego in 1976, when James was
twenty-one years old. James was acquainted with the complainant, a twenty-one-
year-old neighbor, who he had met approximately one month before the sexual
assault occurred. A week after the complainant had a baby, James stopped by her
house and asked to use her phone. She invited him inside and allowed him to see her
new baby. James then physically and sexually assaulted her, threatened her life and
that of the baby, and then left. James pleaded guilty to the offense of rape in 1978,
and he was placed on probation for five years and ordered to a state hospital for
eighteen months for sex offender treatment, anger management treatment, and
alcohol abuse treatment. During his interview with Dr. Price, James stated that he
“thought it was consensual at the time.”
After being released from sex offender treatment in California, James moved
to Tarrant County, Texas. His next sex offense occurred there in 1983,
approximately two years after he completed probation for the California offense.
James, who was around twenty-eight at the time, followed a twenty-five-year-old
neighbor up the stairs to her apartment, pushed her inside, dragged her by her hair
to the bedroom, hit her in the head, and sexually assaulted her. James pleaded guilty
11
to the offense of rape in 1984, and he received a fifteen-year sentence. He served
nearly five years of this sentence before being paroled in 1988. When asked about
this offense, James told Dr. Price that “it was consensual.” Dr. Price testified that
James had not accepted responsibility for either of these offenses because “[h]e
maintains they are consensual.” Dr. Price considered this offense significant because
it occurred after his conviction for the California offense, indicating that his
conviction and the treatment he received following the first offense “did not lead to
him controlling his urges.” He testified that James “reoffended in spite of treatment
and sanction; and that is significant in the risk he poses.”
James was still on parole for this second offense when the next sex offenses—
the ones for which he was incarcerated at the time of this SVP proceeding—occurred
in Harris County in 1990. In January 1990, James, who was thirty-five years old,
was dating a woman who had a six-year-old niece and two-year-old nephew living
with her. James dropped his girlfriend off at work and, while still parked in the
parking lot, forced his girlfriend’s niece to perform oral sex on him. James pleaded
guilty to the offense of aggravated sexual assault of a child, and the trial court
assessed his punishment at confinement for thirty years. During his interview with
Dr. Price, James denied having any kind of sexual contact with this complainant.
The day after the assault on his girlfriend’s niece, James abducted two girls—
a five-year-old girl and her three-year-old sister—who lived in the same apartment
12
complex as people he knew. The girls waved to James from a window in their
apartment, and he pulled them through the window and drove them to a local motel
where he forced them to perform oral sex on them and attempted vaginal intercourse
with them. James pleaded guilty to two counts of aggravated kidnapping and two
counts of aggravated sexual assault of a child, and the trial court assessed his
punishment at confinement for thirty years for each count, to run concurrently. The
indictments for the aggravated kidnapping offenses alleged that James kidnapped
both girls with the intent “to violate and abuse the [complainants] sexually.” During
his interview with Dr. Price, James admitted to kidnapping these girls and taking
them to a motel. He told Dr. Price, “My intent was to have sex with them,” but he
denied having sex with the girls. He further stated that he “took them back close to
their home and let them out” of his car.
Eight days after he sexually assaulted the two sisters, James kidnapped and
assaulted an eight-year-old girl who he did not know. While driving, James saw this
complainant walking along the side of the road and he asked her if she had seen his
daughter.2 James stopped at a park and forced her to perform oral sex on him. They
spent the night in his car, and then James took her to a motel where he again forced
her to perform oral sex and had vaginal intercourse with her. James dropped her off
on the side of the road and told her someone would give her a ride home. James
2
James does not have a daughter.
13
pleaded guilty to the offenses of aggravated kidnapping and aggravated sexual
assault of a child, and the trial court assessed his punishment at confinement for
thirty years for both offenses, to run concurrently.
During his interview with Dr. Price, James stated that he “was under a lot of
stress about his ex-girlfriend” and acknowledged taking this complainant to a motel.
James at first told Dr. Price that he “never thought about having sex like that,” but
then he admitted that this complainant “gave [him] oral sex one time.” In his
deposition, James denied any kind of sexual contact with this complainant. Dr. Price
testified that the fact that this complainant was a stranger to James was significant
because when the victim is a stranger “that represents more of a risk for sexually
reoffending than if the offender knows the victim” because it is “usually a lot harder
to gain access to the victim” and it “increases the potential pool of victims in the
future.” Dr. Price testified that James has accepted “at least some responsibility for
this.”
Dr. Price defined “sexual deviance” as “abnormal sexual behavior,” and he
stated that James is sexually deviant because he “has an interest and is aroused by
nonconsensual sex by having sex with a victim that doesn’t want to.” Dr. Price used
the Diagnostic and Statistical Manual, Fifth Edition, to diagnose James with “other
specified paraphilic disorder,” specifically “nonconsensual sex with both adults and
14
children.”3 He testified that sexually assaulting women and any kind of sexual
conduct with children qualifies as sexually deviant acts. He testified that there was
some evidence that James still had this interest because he had reported to Dr. Gaines
that, while in the hospital in 2006 after having a prostatectomy, he saw a movie that
depicted a sexual assault and this aroused him. Dr. Price testified that paraphilic
disorder is a chronic condition that cannot be cured, only managed.
Dr. Price also diagnosed James with “other specified personality disorder”
with traits of antisocial personality disorder. A personality disorder is a “pervasive
and chronic” set of traits or behaviors that are dysfunctional and cause problems for
either the person or other people. He defined “antisocial” in this context as “a set of
traits and behaviors that are not pro social” and are not “in tune with or consistent
with the basic values of our society.” James has several antisocial traits, including
“a failure to conform to social norms with respect to lawful behaviors,” “an element
of conning of others,” “a reckless disregard for the safety of others,” and a lack of
remorse, as demonstrated by his denial of the offenses. Dr. Price did not diagnose
James with antisocial personality disorder because that diagnosis requires evidence
of a conduct disorder prior to age fifteen, and he did not have any evidence that
3
Dr. Price testified that a diagnosis of pedophilia was not appropriate for James
because that diagnosis requires sexual interest in children that persists for at least
six months, and that was not present here. There was evidence that James’s sexual
interest in children “was present and very strong for eight days but not for six
months,” and James did not self-report a sexual interest in children.
15
James had started acting out prior to that age. According to Dr. Price, there is a
consensus in the professional literature that there are “two pathways to being a sex
offender”: sexual deviance and antisociality. Both are present with James. He agreed
that James’s sexual offending history is evidence of his personality disorder, stating,
“it’s persistent of violating the law in spite of the consequences.”
As part of his evaluation of James, Dr. Price completed several actuarial
measures including the PCL-R, the psychopathy checklist revised. “Psychopathy” is
a “clinical construct” that is similar to antisocial personality traits and is related to
recidivism. The PCL-R considers twenty psychopathic traits and is scored on a scale
from 0 to 40. Dr. Price scored James at 20, which is below the threshold for being
considered a psychopath. Compared to other criminal offenders, James “would fall
at the 40th percentile which would mean that he’s higher than 40 percent of other
criminal offenders and, of course, that means that 60 percent are higher than him.”
Dr. Price did not conclude that James is a psychopath, but he does have some
psychopathic traits including lack of remorse, lack of empathy, poor behavioral
controls, promiscuous sexual behavior, impulsivity, and failure to accept
responsibility. Although many sex offenders exhibit denial about their offenses,
James displayed “extreme levels of denial,” minimizing his behavior, his motive, or
the effect his behavior had on the complainants. An extreme level of denial is a risk
factor for reoffending.
16
Dr. Price also completed the Static-99R, which contains a list of ten risk
factors that have been empirically studied in sex offenders and assesses the
likelihood of a sex offender to reoffend. It’s impossible to predict whether an
individual will sexually reoffend in the future, but this actuarial measure “gives us
totally objective information that forms a baseline that you then adjust based on the
individual.” Dr. Price agreed that the Static-99R does not address all factors that are
relevant to an individual’s risk for reoffending, such as whether an individual
commits an offense while on parole, “and it only captures factors that are static,
which means they don’t change,” such as the number of past sex-related offenses.
After assessing James, Dr. Price gave him a score of 3 on this measure, which, when
compared with other sex offenders, means that James is in the “average range” for
reoffending.4
After interviewing James, Dr. Price also considered the Risk for Sexual
Violence Protocol (“RSVP”), which is a research-based “checklist of other risk
4
Dr. Price compared James’s score to several different groups of sex offenders and
considered what percentage of offenders later reoffended, meaning that they were
convicted of another sex-related offense. Because “reoffending” is defined only as
a later conviction and does not consider unreported sex offenses, the numbers are
considered an underestimate of “actual reoffending.” In the “routine sample” of sex
offenders, on average, 7.9% of offenders with a score of 3 on the Static-99R
reoffended within five years. In the “high-risk, high-needs” group of sex offenders,
14% of offenders with a score of 3 reoffended within five years and 22.9%
reoffended within ten years. And in the “Texas Norms” group of sex offenders,
which has a “very small” sample size, 3.8% of offenders with a score of 3 in Texas
reoffended within five years.
17
factors” that addresses factors known to increase the risk for reoffending. This
measure includes some “dynamic factors,” including successfully undergoing sex
offender treatment and maintaining steady employment, which means it accounts for
things that the individual can do to decrease the risk of reoffending. At trial, Dr.
Price listed for the jury the risk factors that James possesses, which are covered by
the Static-99R, the RSVP, and other clinical research: he had never lived with a
partner for two years;5 nonsexual violence associated with the last offense; pattern
of reoffending; having unrelated victims; having strangers as victims; chronic sexual
violence spanning a long time period; diverse forms of sexual assault; escalation of
sexual offenses; use of physical coercion; use of psychological coercion; extreme
denial of sexual offending; attitudes that support or condone sexual violence;
problems with stress or coping; sexual deviance; problems with substance abuse;
problems with intimate relationships; employment history; reoffending while on
parole; reoffending after sex offender treatment; violating community supervision
by committing a new offense; alcohol use during at least one offense; deficient
acceptance of responsibility; deficient victim empathy; and choice of victims from
a wide age range.
5
Dr. Price did not recall whether James reported that he had lived with a partner for
two-and-a-half years. He agreed that if James had done so, that would reduce his
score on the Static-99R from a 3 to a 2. James testified that, before moving to Texas,
he lived with a partner for around two-and-a-half years.
18
Balanced against an individual’s risk factors are the individual’s protective
factors, or “anything that tends to decrease the risk of reoffending.” James’s
protective factors included his age (sixty-four at the time of trial); poor medical
health; good adjustment to incarceration, including no sexual offenses while in
prison;6 he obtained college degrees while incarcerated; lack of a male victim; no
major mental illnesses; he is not “a prototypical psychopath”; he does not meet all
criteria for antisocial personality disorder; he has “[a] fairly reasonable plan for his
release,” involving seeking acceptance into a program for homeless veterans; he has
a reported low sex drive and a reported lack of interest in sex at all; and he has an
accepting attitude towards sex offender treatment for sex offenders. At times, James
acknowledged to Dr. Price that he needs sex offender treatment, but other times he
said that he did not. He also told Dr. Price that he did not consider himself to be a
sex offender. When balancing the risk factors and protective factors, Dr. Price
opined that James had a “moderately high” risk for sexual reoffending.
Dr. Price also considered James’s medical and substance abuse history. He
considered James’s past alcohol abuse significant because alcohol use can lower the
6
Dr. Price testified that the fact that James has had no sexual offenses while in prison
does not change his ultimate opinion because prison is a “[t]otally different situation
than being in the free world.” Although women can be on prison staff, no children
are present in prison, and the environment is highly structured and under near-
constant surveillance, which can “curtail and inhibit assaultive behavior of a sexual
variety in thousands of inmates,” although sexual assaults do still occur in prison.
19
individual’s inhibitions and behavioral control and can increase “the chances of
acting out on some predisposition that they might have that leads to reoffending.”
While James was hospitalized in California and while incarcerated for his first
conviction in Texas, he participated in substance abuse treatment. He also has a
conviction for driving while intoxicated, and the records that Dr. Price reviewed
indicated that James had been drinking during the 1976 offense and around the time
of the 1990 offenses. Dr. Price considered James’s diagnosis of prostate cancer and
the subsequent removal of his prostate in 2006, but this did not change his opinion
that James has a behavioral abnormality that makes him likely to reoffend because
the prostate “is not physiologically involved with sex drive.” He also considered
James’s knee problems, which makes his gait unsteady and decreases his mobility,
but this did not change his opinion because “you don’t need to have a lot of mobility
to commit some sex offenses” and some of James’s offenses involved him “sexually
offending with his hand.”
Dr. Sheri Gaines, a psychiatrist, also reviewed relevant records, interviewed
James, and evaluated him. Dr. Gaines did not score any actuarial measures herself,
but she used the scores completed by Dr. Price as part of the basis for her opinion.
Dr. Gaines, like Dr. Price, opined that James has a behavioral abnormality as defined
by the SVP Act.
20
Dr. Gaines considered the facts of each of James’s offenses when reaching
her conclusion. With respect to the California offense, the fact that it occurred a long
time ago “shows a pattern of behavior, that shows behavior that persisted throughout
decades.” She also considered the physical violence, the verbal threats that James
made to this complainant, and the fact that this complainant was a young adult, as
opposed to the child complainants for James’s most recent convictions. Although
James completed sex offender treatment after this offense, he later reoffended, which
is a risk factor for future reoffending. With respect to the Tarrant County offense,
Dr. Gaines testified that many of the risk factors from the first offense were present
with this offense, as well as a “lack of insight and the denial, saying that it was
consensual,” and a lack of remorse and callousness towards the complainant.
With respect to the 1990 offenses, Dr. Gaines identified several facts that were
relevant to her opinion, including the age of the complainants contrasted with
James’s first two offenses, a pattern of behavior, “the escalation of the offenses and
even a spree of these last seven convictions,” three of the complainants were
strangers to James, parts of some of the offenses occurred in a public place, and the
kidnapping constituted an “additional offense.” James admitted that he kidnapped
three of the children, but he never admitted to Dr. Gaines that he had committed any
sex crimes. She testified that this was significant because “denial is a risk factor for
repeating negative behaviors.”
21
Dr. Gaines testified that James’s sexual deviancy is “nonconsent, perpetrating
sexual acts on nonconsensual victims, adults, and children,” and she diagnosed him
with “other specified paraphilic disorder, nonconsent with adults and children.” She
testified that this is a chronic, lifelong condition that “can sometimes be controlled
with various kinds of treatment, but it does not go away on its own.” She stated that
this disorder has affected James’s volitional capacity because he has “been unable
to abide by laws or ethical rules or rules of society,” and he continues to have risk
factors, “including the denial of committing the offenses.” Dr. Gaines also diagnosed
James with “[o]ther specified personality disorder with antisocial traits.” The
“antisocial component” of this disorder for James is his pattern of illegal behavior,
a lack of remorse, denial, and deception. She also considered James’s past history
with alcohol abuse as a risk factor, and she testified that it was “concerning” that
James does not believe that he needs treatment for substance abuse.
During her interview with James, Dr. Gaines asked him if he needed sex
offender treatment, and he stated that he did not believe that he needs it. She stated
that James had “poor insight” into his paraphilic disorder, he does not understand
why he sexually offended, and he does not exhibit empathy or remorse for his
victims. He acknowledged that when he kidnapped the child complainants he
intended to have sex with them, but he could not explain what led to this thought.
This also concerned Dr. Gaines because “[i]n order to change a problematic
22
behavior, someone has to identify that behavior first . . . and then start working on
how to change it.”
Dr. Gaines also identified several protective factors for James, including his
age because “the literature indicates that after the age of 60, there’s a pretty steep
decline in reoffending.” James’s age did not change Dr. Gaines’s opinion about
likelihood of reoffending “given all these risk factors we’ve been talking about, the
decades of offending.” James had also obtained college degrees while in prison and
had adjusted well to the prison environment without having many disciplinary
issues. He also has family members, friends, and members of his religious
community who correspond with him and provide a support system for him. James
also has balance and mobility problems, and he reported that his prostate cancer has
affected his libido. These factors did not change Dr. Gaines’s opinion because
neither the ability “to run around from place to place” nor a sex drive is necessary to
commit a sexual offense.
James also testified. He acknowledged that he had nine prior convictions for
sex-related offenses. The State questioned James about the details of each of these
offenses, and although he admitted pleading guilty to these offenses and being
convicted of them, he denied sexually assaulting any of the complainants. With
respect to the two adult complainants, in California and in Tarrant County, he
testified that he had consensual sex with both of them. James also denied sexually
23
assaulting any of the child complainants in 1990, but he admitted to kidnapping three
of the complainants with the intent to have sex with them. He denied being sexually
attracted to children.7 Aside from the court-ordered treatment after his California
conviction, James has not participated in sex offender treatment, and he does not
believe that he is a sex offender. He denied having a sex drive or thoughts about sex.
He also denied having a problem with alcohol abuse.
C. Analysis
In arguing that the jury’s finding that he is a sexually violent predator is not
supported by factually sufficient evidence, James relies heavily on the Fort Worth
Court of Appeals’ analysis in In re Commitment of Stoddard, which has since been
reversed by the Texas Supreme Court. See Stoddard, 619 S.W.3d at 676–78. He also
compares many of the facts in this case, such as his scores on the actuarial measures
and his lack of unadjudicated sexual offenses, to the facts in Stoddard and argues
that this Court should, as the Fort Worth Court did, find that the State presented
factually insufficient evidence to support the jury verdict.
7
James offered inconsistent testimony on this matter. When he was questioned by his
counsel, James denied being sexually attracted to children and stated that he never
told anyone that, when he kidnapped the child complainants, he intended to have
sex with them. He testified that that thought did not cross his mind. He stated that
he “would not want anybody’s kids to go through what I put them through,” that his
actions were “definitely wrong,” and that he “deserved to do these 30 years for what
I did.” When later asked if he believed he needed sex offender treatment, he stated,
“Well, I could use it because I did kidnap the girls with the intent to have sex with
them; so there’s nothing wrong with having treatment programs to see why I even
did that.”
24
When faced with a similar argument, the Texarkana Court of Appeals declined
to engage in such a comparison between facts in different cases. See In re
Commitment of Metcalf, 602 S.W.3d 609, 623 (Tex. App.—Texarkana 2020, pet.
denied). The court stated:
Comparing isolated facts appearing in other reported SVP commitment
cases, such as the seriousness of the underlying offenses or scores on
risk assessment guidelines and psychopathy checklists, should not be
part of [the factual sufficiency] review. First, isolating and comparing
individual pieces of evidence unduly emphasizes that evidence while
discounting the remaining evidence present in both cases, which is
contrary to the factual sufficiency review standard. Further, the
evidence presented in other cases was not before the jury in this case,
and the factual sufficiency standard of review does not include
considering evidence not before the jury.
Id.; see Stoddard, 619 S.W.3d at 678 (noting that intermediate court had compared
Stoddard “to other adjudicated SVPs with predicate offenses and criminal histories
that were more sustained and egregious than Stoddard’s” and concluded that
Stoddard was not “worst of the worst” of sex offenders, but SVP Act does not require
State to prove that offender is one of “the worst of the worst” to obtain verdict that
individual is sexually violent predator). We therefore consider only the evidence
presented before the jury in this case.
The jury heard evidence that James has been convicted of nine sexually
violent offenses, and it heard evidence of the details of these offenses. Dr. Price and
Dr. Gaines discussed the details of these offenses, which they considered when
formulating their opinions on whether James has a behavioral abnormality, and they
25
discussed the risk factors for reoffending that they observed in connection with
James’s offenses. Among other risk factors, both Dr. Price and Dr. Gaines
considered it significant that James committed a new sexual offense in Tarrant
County after undergoing sex offender treatment in California and that he committed
the 1990 offenses after being paroled following his Tarrant County conviction.
James also committed offenses over a period spanning fourteen years, he offended
against both women and young children, he used physical violence against the adult
complainants, he threatened the complainants, and he engaged in several different
sexual acts with the complainants. Both experts also discussed the significance of
James’s denial of the sexual components of his offenses and his insistence that he is
not a sex offender and does not need sex offender treatment. This level of denial,
which Dr. Price characterized as “extreme,” is a risk factor for reoffending. Both
experts diagnosed James as having “other specified paraphilic disorder,
nonconsensual sex with adults and children” and “other specified personality
disorder with antisocial traits.”
Dr. Price discussed the actuarial measures that he scored for James, as well as
the shortcomings of those measures and why he believed James had a greater risk
for reoffending despite his “average” scores on the measures. The experts agreed
that James is not a psychopath. But he did display some psychopathic traits, which
combined with his paraphilic disorder and deviant sexual interests concerned Dr.
26
Price. Both Dr. Price and Dr. Gaines acknowledged that James has several
“protective” factors that could decrease his risk of reoffending, such as his age and
his medical history, but both doctors explained why the existence of the protective
factors present here did not change their ultimate opinion that James has a behavioral
abnormality as defined by the SVP Act. Both experts also acknowledged that James
had adjusted well to prison and did not have any major disciplinary cases or new
sexual offenses since being incarcerated in 1991, but they discounted the
significance of that as a major protective factor due to the highly controlled and
surveilled nature of confinement in prison.
James also testified, and while he acknowledged that he had nine convictions
and admitted that he had kidnapped three of the four child complainants, he denied
committing any sexual offenses against any of the complainants. He also denied
having a sex drive and denied having any thoughts about sex. As the factfinder, it
was within the province of the jury to weigh the evidence, judge the credibility of
the witnesses’ testimony, and resolve any conflicts in the evidence. See In re
Commitment of Williams, 539 S.W.3d 429, 440–41 (Tex. App.—Houston [1st Dist.]
2017, no pet.); In re Commitment of Stuteville, 463 S.W.3d 543, 552 (Tex. App.—
Houston [1st Dist.] 2015, pet. denied); see also Stoddard, 619 S.W.3d at 668 (stating
that, in conducting factual sufficiency review in SVP case, we “may not usurp the
jury’s role of determining the credibility of witnesses and the weight to be given
27
their testimony”). Additionally, the jury was free to believe all, part, or none of a
witness’s testimony. In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex.
App.—Beaumont 2002, pet. denied). We may not substitute our judgment for that
of the jury. See Stoddard, 619 S.W.3d at 677.
We presume that the jury resolved any disputed evidence in favor of its
finding that James is a sexually violent predator. See id. at 668, 674 (stating that we
“must presume that the factfinder resolved disputed evidence in favor of the finding
if a reasonable factfinder could do so”). The disputed evidence a reasonable
factfinder could not have credited in favor of the jury’s verdict, along with
undisputed facts contrary to the verdict, is not so significant in light of the entire
record such that the jury could not have found beyond a reasonable doubt that James
is a sexually violent predator. See id. at 678. We therefore hold that the State
presented factually sufficient evidence to support the jury’s finding that James has a
behavioral abnormality as defined by the SVP Act and is a sexually violent predator.
We overrule James’s first issue.
Partial Directed Verdict
In his second issue, James contends that the trial court erred by granting the
State’s motion for a partial directed verdict on whether James is a repeat sexually
violent offender before James had rested his case-in-chief.
28
A civil commitment proceeding under the SVP Act “is subject to the rules of
procedure and appeal for civil cases,” but if a conflict exists between the SVP Act
and the rules of civil procedure, the SVP Act controls. TEX. HEALTH & SAFETY CODE
§ 841.146(b); In re Commitment of Talley, 522 S.W.3d 742, 749–50 (Tex. App.—
Houston [1st Dist.] 2017, no pet.). In civil cases generally, a party has a right to a
jury trial to determine questions of fact. In re Commitment of Harris, 541 S.W.3d
322, 330 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The SVP Act grants a
defendant the right to a jury trial. See TEX. HEALTH & SAFETY CODE § 841.061(b);
Talley, 522 S.W.3d at 749. In a jury trial in an SVP case, the jury shall determine
whether, beyond a reasonable doubt, the person is a sexually violent predator. TEX.
HEALTH & SAFETY CODE § 841.062(a); Harris, 541 S.W.3d at 330.
Uncontroverted questions of fact need not be and should not be submitted to
the jury for its determination. Harris, 541 S.W.3d at 330 (quoting Clark v. Nat’l Life
& Accident Ins. Co., 200 S.W.2d 820, 822 (Tex. 1947)). The Texas Rules of Civil
Procedure allow for directed verdicts. See TEX. R. CIV. P. 268; see Harris, 541
S.W.3d at 330 (“A partial directed verdict is a procedure for removing parts of a civil
case from the jury when there are no fact issues to resolve.”); Talley, 522 S.W.3d at
750 (stating that partial directed verdict is “a mechanism for removing parts of a case
from the factfinder”); see also In re Commitment of Perdue, 530 S.W.3d 750, 753
(Tex. App.—Fort Worth 2017, pet. denied) (“A directed verdict does not violate the
29
right to a trial by jury because it is a procedure that depends on a trial court’s
conclusion that there are no issues of fact to be determined.”).
In an SVP Act proceeding, “[a]bsent evidence that challenges the evidence
that the defendant has been convicted of more than one sexually violent offense and
for which a sentence was imposed for one of them, a person’s status as a sexually
violent offender is a legal determination appropriate for partial directed verdict.”
Talley, 522 S.W.3d at 750. “When undisputed evidence demonstrates that a person
is a repeat sexually violent offender, reasonable jurors can make only one finding as
to that element—a conclusion that remains true whether the burden of proving the
element is by a preponderance of the evidence or beyond a reasonable doubt.”
Harris, 541 S.W.3d at 330. Thus, in SVP Act cases, the trial court may grant a partial
directed verdict on the question whether a person is a repeat sexually violent offender
when there is no probative evidence raising a fact issue to the contrary. Id.; Talley,
522 S.W.3d at 750–51 (upholding trial court’s directed verdict when defendant
admitted to multiple convictions and sentences for sexually violent offenses in
requests for admission and at trial and State introduced records establishing prior
convictions and sentences, and therefore this element “was conclusively established
and not a contested issue for the jury to determine”).
James acknowledges the precedent from this Court holding that trial courts
may grant partial directed verdicts on the question whether the defendant is a repeat
30
sexually violent predator, but he argues that the trial court in this case prematurely
granted the directed verdict before he had rested his case-in-chief, depriving him of
the “full opportunity” to present his case and thus automatically requiring reversal.
In support, James cites, among other cases, the Texas Supreme Court’s decision in
Tana Oil & Gas Corp. v. McCall, in which the court stated, “Ordinarily, a directed
verdict should not be granted against a party before the party has had a full
opportunity to present its case and has rested.” See 104 S.W.3d 80, 82 (Tex. 2003);
see also Wedgeworth v. Kirskey, 985 S.W.2d 115, 116–17 (Tex. App.—San Antonio
1998, pet. denied) (stating that purpose of motion for directed verdict is to show trial
court that cause of action does not exist and that “[t]his can only be done after the
plaintiff has had full opportunity to present their evidence” and stating that trial court
commits reversible error if it grants directed verdict on its own motion before
plaintiff has presented all his evidence); Nassar v. Hughes, 882 S.W.2d 36, 38 (Tex.
App.—Houston [1st Dist.] 1994, writ denied) (“[T]he trial court may properly direct
a verdict if no evidence is presented to support the cause of action. However, if done
before the plaintiff has presented all his evidence, it is reversible error.”).
In Tana Oil, two attorneys sued Tana Oil & Gas and claimed that the
company, by suing them and their client in another county, had tortiously interfered
with their agreement to represent a client in a different suit against the company. See
104 S.W.3d at 81. The only actual damages that the attorneys sought “were the value
31
of the time they spent in defending themselves as well as the costs they incurred.”
Id. The trial court impaneled a jury, but during the testimony of the McCalls’ first
witness, the court granted Tana Oil’s motion for directed verdict. Id. at 81–82. The
next day, the trial court signed an order granting the directed verdict “because ‘as a
matter of law, Plaintiffs [the McCalls] have not and cannot establish all the elements
of this cause of action, viz., Plaintiffs have neither pled nor demonstrated that
Plaintiffs suffered any actual damage or loss.’” Id. at 82.
The Texas Supreme Court concluded that even if the McCalls could have
proved that Tana Oil tortiously interfered with their relationship with their client,
“they would not be entitled to the only damages they claimed.” Id. The court then
noted that a trial court typically should not grant a directed verdict “against a party
before the party has had a full opportunity to present its case and has rested.” Id. The
court stated, however:
[T]he McCalls were not harmed by the trial court’s irregular procedure
because their action for tortious interference failed not for want of
evidence but because proof of all their claims would not have entitled
them to the only damages they sought. We emphasize that the McCalls
did not merely fail to plead a viable damage claim; rather they
affirmatively limited their claim to damages they could not recover as
a matter of law.
Id. The supreme court ultimately concluded, “In such a situation, the trial court did
not err in dismissing the case.” Id.
32
James argues that the “Tana Oil exception” to the general rule of automatic
reversal when a trial court grants a directed verdict before the party has finished its
case-in-chief applies only when “the opposing party’s claim or defense could not be
established as a matter of law,” “has nothing to do with an assessment of the trial
evidence,” and has no application to this case. James argues that he was not barred
as a matter of law from challenging the repeat-sexually-violent-offender element of
the State’s burden of proof, but the trial court’s granting of a directed verdict on this
element in favor of the State before he had rested his case-in-chief “foreclosed any
further evidence (including James’s testimony)” on this matter. He argues that the
proper remedy for the trial court’s error is to reverse the judgment and remand for a
new jury trial.
The general rule is that a trial court should not render a directed verdict against
a party before that party has had a full opportunity to present the party’s case and
has rested. Tana Oil, 104 S.W.3d at 82; Stearns v. Martens, 476 S.W.3d 541, 546
(Tex. App.—Houston [14th Dist.] 2015, no pet.); State Office of Risk Mgmt. v.
Martinez, 300 S.W.3d 9, 11 (Tex. App.—San Antonio 2009, pet. denied). Here, the
State moved for a directed verdict on whether James was a repeat sexually violent
offender because he had been convicted of more than one sexually violent offense
and a sentence was imposed for at least one of the offenses. The trial court granted
the directed verdict during James’s testimony as part of his case-in-chief. Because
33
the trial court did not wait to grant the directed verdict until after James had rested
his case-in-chief, we conclude that the trial court erred. See Tana Oil, 104 S.W.3d at
82; Stearns, 476 S.W.3d at 546; State Office of Risk Mgmt., 300 S.W.3d at 11.
James argues that because this case does not fall within the Tana Oil
exception, the general rule that a premature directed verdict constitutes reversible
error applies, and this Court need not conduct a harm analysis. Under the unique
facts of this case, we disagree.
As part of its burden of proof, the State was required to prove that James was
a repeat sexually violent offender. See TEX. HEALTH & SAFETY CODE § 841.003(a)
(providing that person is sexually violent predator under SVP Act if person “is a
repeat sexually violent offender” and “suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence”). A person
is a repeat sexually violent offender if the person “is convicted of more than one
sexually violent offense and a sentence is imposed for at least one of the offenses.”
Id. § 841.003(b). The SVP Act defines which offenses are considered sexually
violent offenses, and this definition includes aggravated sexual assault of a child and
aggravated kidnapping when the offense is committed “with the intent to violate or
abuse the victim sexually.” Id. § 841.002(8)(A), (B); see TEX. PENAL CODE
§ 20.04(a)(4) (providing that person commits offense of aggravated kidnapping if he
“intentionally or knowingly abducts another person with the intent to . . . inflict
34
bodily injury on him or violate or abuse him sexually”); id. § 22.021(a) (setting out
elements of aggravated sexual assault).
To meet its burden of proof, the State introduced both testimonial and
documentary evidence in its case-in-chief. Both Dr. Price and Dr. Gaines testified
that James had convictions for nine sexually violent offenses: a conviction for rape
in 1978; a conviction for rape in 1984; convictions for three counts of aggravated
kidnapping in 1991; and convictions for four counts of aggravated sexual assault of
a child in 1991. James pleaded guilty to all these offenses. He was placed on
probation for the 1978 rape offense, but he received and served prison sentences for
each of the other offenses. The trial court admitted copies of the judgments and
sentences for each offense. The trial court also admitted copies of the indictments
for the 1991 offenses, which alleged that, with respect to the aggravated kidnapping
offenses, James committed the offense with the intent to violate and abuse the
respective complainants sexually.
James also testified as part of the State’s case-in-chief. James acknowledged
that, at the time of trial, he was incarcerated and was serving sentences for seven
offenses: four convictions for aggravated sexual assault of a child and three
convictions for aggravated kidnapping. These convictions involved four different
complainants. He also admitted that this was not his first time in prison and that he
had previously been incarcerated for a rape conviction. He further admitted that he
35
had another prior rape conviction in California, that he had been placed on probation,
and that he had participated in a hospital treatment program after that conviction.
The State questioned James extensively about the details of each of these offenses.
Although James denied that he had committed the sexual offenses—stating that he
had consensual sex with the two adult complainants and admitting that he kidnapped
three of the child complainants with the intent of having sex with them but denying
that he sexually assaulted them—he unequivocally admitted that he had been
convicted of nine different offenses.8
James also testified as the only witness in his own case-in-chief. James again
acknowledged that he had pleaded guilty to the offense of rape in California in 1978
and to the offense of rape in Tarrant County in 1984, although he again stated that
he did not rape these complainants. James also again acknowledged that he pleaded
8
James denied that he was guilty of the sexually violent offenses, but this does not
create a fact issue on the pertinent question whether he was convicted of the offenses
and had a sentence imposed for at least one of them. See In re Commitment of Black,
522 S.W.3d 2, 5 (Tex. App.—San Antonio 2017, pet. denied) (“Even if there was
evidence at Black’s civil commitment proceeding showing he did not actually intend
to commit a sexual assault when he committed burglary, it is undisputed that he was
convicted of committing burglary with the intent to commit sexual assault. . . . We
hold Black’s testimony is not probative evidence of the material fact of whether he
was ‘convicted’ of burglary with the intent to commit sexual assault.”); In re
Commitment of Barrientos, No. 01-17-00649-CV, 2018 WL 3384563, at *4 (Tex.
App.—Houston [1st Dist.] July 12, 2018, pet. denied) (“Although he denies
committing either offense, Barrientos’s denials of guilt do not raise a question of
fact as to whether he was convicted of these offenses and sentenced for at least one
of them.”). The evidence is undisputed that James has been convicted of nine
sexually violent offenses and that he had a sentence imposed for at least one of them.
36
guilty to seven offenses in 1991. He offered explanations for why he pleaded guilty
to all these offenses even though he claimed that he did not commit these offenses.
James’s testimony on these issues occurred before the State moved for a directed
verdict on the repeat sexually violent offender element of its case.9
Although the trial court granted a directed verdict in favor of the State on the
question whether James was a repeat sexually violent offender before James had
rested his case-in-chief, this occurred after he had admitted—during both the State’s
case-in-chief and his own—that he had been convicted of nine sexually violent
offenses and had a sentence imposed for at least one of them. The State’s other
witnesses—Dr. Price and Dr. Gaines—also testified that James had convictions for
nine sexually violent offenses, and the trial court admitted the judgments and
sentences for each offense. It was therefore undisputed that James had been
convicted of more than one sexually violent offense and a sentence had been
imposed for at least one of the offenses. See TEX. HEALTH & SAFETY CODE
§ 841.003(b) (defining “repeat sexually violent offender”); Harris, 541 S.W.3d at
331 (“But if there are no disputed facts regarding this element, the person’s status as
a repeat sexually violent offender is appropriate for partial directed verdict.”);
9
Even after the trial court granted the directed verdict, James acknowledged that he
had been incarcerated for the rape offense that occurred in Tarrant County. The State
asked, “And yet after being incarcerated for that second rape, you did commit these
other offenses?” James responded, “Unfortunately, yes.” He then stated that none
of the allegations against him were true.
37
Talley, 522 S.W.3d at 750–51 (“Because Talley admitted to his repeat offender
status in his pleadings, this element was conclusively established and not a contested
issue for the jury to determine.”). James therefore had an opportunity to present a
defense on this issue, but not only did he not challenge the State’s proof that he had
been convicted of more than one sexually violent offense, he affirmatively admitted
it during his testimony before the trial court granted the directed verdict.
Under the facts of this case, we conclude that the trial court’s error in granting
a directed verdict before James rested his case-in-chief was harmless.10 See State
Office of Risk Mgmt., 300 S.W.3d at 11–12 (noting that while “it is generally
reversible error for the trial court to direct a verdict without allowing the plaintiff to
10
We note that the Fourteenth Court of Appeals has held that when a case does not
fall within the Tana Oil exception, the trial court commits reversible error in
granting a directed verdict against a defendant before he had an opportunity to
present his case-in-chief. See Stearns v. Martens, 476 S.W.3d 541, 546–47 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). In Stearns, a divorce proceeding, one of
the issues was whether shares in a company were the petitioner’s separate property.
Id. at 545. The trial court granted a directed verdict in favor of the petition on this
issue after the petitioner rested her case-in-chief and before the respondent had a
chance to present any of his case-in-chief. Id. at 547. The Fourteenth Court noted
that the case did not fall within the Tana Oil exception because “none of [the
potential bases for affirming the directed verdict] rely on [the respondent’s]
purported affirmative limitation of his claims to damages he cannot recover as a
matter of law.” Id. The Fourteenth Court held that the trial court committed
reversible error when it granted a directed verdict against the respondent “before he
had an opportunity to present his case-in-chief.” Id. Here, although James had not
yet finished his case-in-chief at the time the trial court granted the directed verdict,
James had already admitted during his case-in-chief (as well as when he testified
during the State’s case-in-chief) that he had nine convictions for sexually violent
offenses and that a sentence had been imposed for at least one of those offenses.
Stearns is therefore distinguishable from the present case.
38
present all of its evidence,” Texas Supreme Court had, in Tana Oil, “held that a
procedural error in granting a directed verdict before the close of evidence did not
require reversal where no harm was shown”); TEX. R. APP. P. 44.1(a) (providing that,
in civil case, no judgment may be reversed on appeal on ground that trial court made
error of law unless court of appeals concludes error probably caused rendition of
improper judgment or probably prevented appellant from properly presenting case
to court of appeals).
We overrule James’s second issue.
Jury Charge Error
In his third issue, James argues that the trial court erred by refusing to instruct
the jury that, while its determination that he is a sexually violent predator was
required to be unanimous, it could determine that he was not a sexually violent
predator by a non-unanimous, 10-2 verdict.
As noted above, the SVP Act provides that “a civil commitment proceeding
is subject to the rules of procedure and appeal for civil cases,” but “[t]o the extent of
any conflict between [the SVP Act] and the rules of procedure and appeal for civil
cases, [the SVP Act] controls.” TEX. HEALTH & SAFETY CODE § 841.146(b). Texas
Rule of Civil Procedure 292(a), which governs jury verdicts in civil cases, states that
“a verdict may be rendered in any cause by the concurrence, as to each and all
answers made, of the same ten or more members of an original jury of twelve.” TEX.
39
R. CIV. P. 292(a). Health and Safety Code section 841.062(b) provides that “[a] jury
determination that the person is a sexually violent predator must be by unanimous
verdict.” TEX. HEALTH & SAFETY CODE § 841.062(b). There is “no question” that
for a jury to find that a person is a sexually violent predator, it must do so
unanimously. In re Commitment of Jones, 602 S.W.3d 908, 912 (Tex. 2020). Thus,
because section 841.062(b) conflicts with Rule 292(a), section 841.062(b) controls.
Id.However, section 841.062(b) “addresses only the number of votes needed for
a ‘yes’ verdict—that is, a verdict for the State finding ‘that the person is a sexually
violent predator.’” Id. (quoting TEX. HEALTH & SAFETY CODE § 841.062(b)). The
statute is silent “about the number of votes needed for a ‘no’ verdict,” or a verdict
declining to find that the defendant is a sexually violent predator. Id. As the Texas
Supreme Court noted, if the Legislature had intended for section 841.062(b) to apply
to both “yes” and “no” verdicts, “it could easily have done so, for example, by
requiring unanimity for a ‘determination of whether the person is a sexually violent
predator.’” Id. The supreme court concluded that because the plain language of
section 841.062(b) applies only to “yes” verdicts under the SVP Act, Rule 292(a)
applies to “no” verdicts. Id. at 913. A unanimous jury verdict is therefore required
to find that a defendant is a sexually violent predator, but only ten votes are necessary
to reach a verdict declining to find that the defendant is a sexually violent predator.
40
Id. “Consequently, a defendant who requests that the jury be instructed to that effect
is entitled to the submission of such an instruction.” Id.
Here, James requested that the trial court instruct the jury in the charge that,
while a “yes” answer to the question whether James was a sexually violent predator
was required to be unanimous, a “no” answer only required the votes of ten jurors.
The trial court overruled this request and instructed the jury that its verdict was
required to be unanimous. We conclude that the trial court’s refusal to include
James’s requested instruction was erroneous. See id. We therefore turn to whether
this error was harmful.
Texas Rule of Appellate Procedure 44.1(a) provides:
(a) No judgment may be reversed on appeal on the ground that the
trial court made an error of law unless the court of appeals
concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting
the case to the court of appeals.
TEX. R. APP. P. 44.1(a). A jury’s unanimous verdict finding that a defendant is a
sexually violent predator demonstrates that the trial court’s error in refusing to
submit the requested 10-2 instruction did not affect the jury’s verdict. Jones, 602
S.W.3d at 914. “[W]e must presume that the jurors voted the way they did because
they were conscientiously convinced of the result they reached.” Id. at 915. When
the members of a jury unanimously come to the conclusion that a defendant is a
41
sexually violent predator, “an instruction explaining that a vote of ten of the jurors
was sufficient for a verdict declining to find that [the defendant is a sexually violent
predator] would not have changed the outcome” of the case. Id.
In this case, the jury unanimously determined that James is a sexually violent
predator. We therefore conclude that the trial court’s failure to submit James’s
requested 10-2 instruction did not probably cause the rendition of an improper
judgment, and the trial court’s error was harmless. See id.; In re Commitment of Hill,
621 S.W.3d 336, 346 (Tex. App.—Dallas 2021, no pet. h.) (concluding that because
jury unanimously found defendant was sexually violent predator, “an instruction
explaining that a vote of ten jurors was sufficient for a verdict declining to find Hill
is a sexually violent predator would not have changed the outcome of this case”); In
re Commitment of K.H., 609 S.W.3d 247, 257 (Tex. App.—Houston [14th Dist.]
2020, pet. denied) (concluding that trial court erred by not giving requested 10-2
instruction, but “because the jury unanimously found that appellant was a sexually
violent predator, the error did not probably cause the rendition of an improper
judgment”).
We overrule James’s third issue.
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Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Justices Kelly, Guerra, and Farris.
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