Opinion issued April 27, 2017




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00572-CV
                           ———————————
             IN RE COMMITMENT OF LESTER G. TALLEY



                   On Appeal from the 185th District Court
                           Harris County, Texas
                        Trial Court Case No. 513958


                            DISSENTING OPINION

     The guarantees of jury trial in the Federal and State Constitutions reflect
     a profound judgment about the way in which law should be enforced
     and justice administered. A right to jury trial is granted to criminal
     defendants in order to prevent oppression by the Government. . . . The
     framers of the constitutions strove to create an independent judiciary
     but insisted upon further protection against arbitrary action. Providing
     an accused with the right to be tried by a jury of his peers gave him an
     inestimable safeguard against the corrupt or overzealous prosecutor and
     against the compliant, biased, or eccentric judge. If the defendant
     preferred the common-sense judgment of a jury to the more tutored but
      perhaps less sympathetic reaction of the single judge, he was to have it.
      Beyond this, the jury trial provisions in the Federal and State
      Constitutions reflect a fundamental decision about the exercise of
      official power—a reluctance to entrust plenary powers over the life and
      liberty of the citizen to one judge or to a group of judges. . . . The deep
      commitment of the Nation to the right of jury trial . . . must . . . be
      respected by the States.[1]

      A jury found appellant, Lester G. Talley, to be a sexually violent predator as

defined in the Sexually Violent Predator Act (the “SVP” Act),2 and the trial court,

in accord with the jury finding, rendered a final judgment and an order of civil

commitment. In his third issue, appellant contends that the trial court erred in

granting the State a directed verdict on the issue of whether he is a “repeat sexually

violent offender.”3 Because the majority errs in holding that the trial court correctly

granted the State a directed verdict and, in doing so, relies on the erroneous precedent

of the Beaumont Court of Appeals, I respectfully dissent.

                                 Right to Trial by Jury

      In his third issue, appellant argues that the trial court erred in granting the

State a directed verdict on the issue of whether he is a “repeat sexually violent

offender” because a jury, when demanded, is “the sole determiner of whether a



1
      Duncan v. Louisiana, 391 U.S. 145, 155–56, 88 S. Ct. 1444, 1451 (1968) (emphasis
      added) (footnote omitted).
2
      See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.151 (Vernon 2010 & Supp.
      2016).
3
      See id. § 841.003(a)(1).

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person is a sexually violent predator,” which necessarily includes a determination of

whether a person is a “repeat sexually violent offender.” See TEX. HEALTH &

SAFETY CODE ANN. §§ 841.003(a) (“A person is a sexually violent predator . . . if

the person:    (1) is a repeat sexually violent offender; and (2) suffers from a

behavioral abnormality . . . .”), 841.061(b) (Vernon Supp. 2016) (entitled to jury

trial on demand), § 841.062(a) (Vernon 2010) (“[J]ury shall determine whether,

beyond a reasonable doubt, the person is a sexually violent predator.”).

      Appellant correctly notes that the SVP Act expressly provides that either the

State or a person accused of being a sexually violent predator is “entitled to a jury

trial on demand.” Id. § 841.061(b). The SVP Act also specifically states that the

jury “shall determine whether, beyond a reasonable doubt, the person is a sexually

violent predator.” Id. § 841.062(a) (emphasis added). And it further provides that a

“jury determination that the person is a sexually violent predator must be by

unanimous verdict.” Id. § 841.062(b).

      Regardless, the majority, relying on the Texas Rules of Civil Procedure and

the erroneous precedent of the Beaumont Court of Appeals,4 holds that the trial court


4
      Notably, this is not an appeal that was originally filed in the Ninth Court of Appeals,
      Beaumont, Texas and then transferred to the First Court of Appeals, Houston,
      Texas. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer
      of cases); cf. In re Commitment of Stuteville, 463 S.W.3d 543, 556–57 (Tex. App.—
      Houston [1st Dist.] 2015, pet. denied) (appeal transferred from Beaumont Court of
      Appeals). In other words, here, we are not faced with a situation in which we are
      bound by the erroneous precedent of the Beaumont Court of Appeals. See TEX. R.
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did not err in directing a verdict in favor of the State because “a person’s status as a

sexually violent offender is a legal determination appropriate for . . . directed

verdict.” However, this reasoning ignores the well-established meaning of the plain

language of the SVP Act, which controls over our rules of civil procedure. See id.

§ 841.146(b) (Vernon Supp. 2016).

      The SVP Act provides, in no uncertain terms, that a person accused of being

a sexually violent predator has a statutory right to a jury trial. Appellant was

“entitled to a jury trial” upon his timely “demand,” and he had the right to have the

jury determine, “beyond a reasonable doubt” that he is a sexually violent predator.

Id. §§ 841.061(b), 841.062(a) (emphasis added). A person is considered to be a

“sexually violent predator” only if it is determined that he: (1) is a repeat sexually

violent offender and (2) suffers from a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence.          Id. § 841.003(a).     Such a

determination “must be by unanimous verdict.” Id. § 841.062(b).

      Although the SVP Act concerns “civil” commitments, the Texas Legislature,

in crafting the statute, invoked well-established and understood constitutional and

criminal-law principles. Given the grave consequences at stake in a SVP Act


      APP. P. 41.3; In re Commitment of Stuteville, 463 S.W.3d at 559–60 (Jennings, J.,
      concurring) (noting Court bound by erroneous precedent of Beaumont Court of
      Appeals); see also In re Commitment of Wirtz, 451 S.W.3d 462, 463 n.1 (Tex.
      App.—Houston [14th Dist.] 2014, no pet.) (in transferred appeal, transferee court
      must decide case in accordance with transferor court precedent).

                                           4
civil-commitment proceeding, it is readily apparent that the legislature chose its

words carefully, and no court is free to ignore the plain meaning of these words.

Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (“We must enforce

the statute ‘as written’ and ‘refrain from rewriting text that lawmakers chose.’”

(quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009))).

By directing the jury to find in favor of the State, the trial court usurped the

fact-finding authority that the legislature has clearly assigned solely to the jury in a

SVP Act civil-commitment proceeding. It, thus, violated appellant’s statutory right

to a trial by jury.

       As noted by Justice Scalia, the right to a jury trial “embodies ‘a profound

judgment about the way in which law should be enforced and justice administered.’”

Carella v. California, 491 U.S. 263, 268, 109 S. Ct. 2419, 2422 (1989) (Scalia, J.,

concurring) (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451

(1968)). He explained:

       It is a structural guarantee that “reflect[s] a fundamental decision about
       the exercise of official power—a reluctance to entrust plenary powers
       over the life and liberty of the citizen to one judge or to a group of
       judges.” A defendant may assuredly insist upon observance of this
       guarantee even when the evidence against him is so overwhelming as
       to establish guilt beyond a reasonable doubt. That is why the Court has
       found it constitutionally impermissible for a judge to direct a verdict for
       the State.

Id. at 268, 109 S. Ct. at 2422 (emphasis added) (citation omitted) (quoting Duncan,

391 U.S. at 156, 88 S. Ct. at 1451). And because “with a directed verdict, ‘the
                                           5
error . . . is that the wrong entity judged’” the facts, the error cannot be harmless. Id.

at 269, 109 S. Ct. at 2423 (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101,

3106 (1986)).

      Respectfully, the majority in concluding otherwise seriously errs.5




                                                  Terry Jennings
                                                  Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Jennings, J. dissenting.




5
      In reaching its holding, the majority also relies on In re Commitment of Bohannan,
      388 S.W.3d 296 (Tex. 2012). However, the sole issue facing the Texas Supreme
      Court in In re Commitment of Bohannan was “what qualifications an expert must
      have to testify regarding whether a person is a sexually violent predator and
      therefore subject to civil commitment for outpatient treatment and supervision.”
      388 S.W.3d at 298. The court was not presented with the question at issue in this
      case, i.e., whether the trial court erred in granting the State a directed verdict on the
      issue of whether appellant is a “repeat sexually violent offender.”

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