                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-17-00150-CV


IN RE: THE COMMITMENT OF
MAURICE BLUITT

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         FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. D372-S-13193-16

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                                     OPINION

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      While Appellant Maurice Bluitt was incarcerated in a Colorado prison, the

State of Texas initiated proceedings to have him civilly committed as a sexually

violent predator. See Tex. Health & Safety Code Ann. § 841.081 (West 2017).

Because we hold that Appellant had a statutory right to appear in person at the

civil commitment trial, we reverse the trial court’s judgment and remand the case

to the trial court for further proceedings consistent with this opinion.
                                  Background

I. Appellant has a criminal history including sexually violent offenses.

      In the late 1980s, Appellant was indicted in Texas for aggravated sexual

assault of a child under the age of 14. In a plea bargain, Appellant pleaded guilty

to the lesser charge of sexual assault and was placed on deferred adjudication

probation for two years, which he successfully completed.

      In 1996, Appellant was charged with kidnapping and sexually assaulting a

woman in Colorado. In 1998, he pleaded guilty to the kidnapping charge in

exchange for a four-year term of probation, which he was permitted to serve in

Texas. But it was not long before he was arrested again. In 1999, Appellant was

charged in Tarrant County with indecency with an eight-year-old child by contact.

Appellant was convicted of the crime as charged and sentenced to 20 years’ in

the custody of the Texas Department of Criminal Justice (TDCJ).

      In January 2016, when TDCJ released Appellant on parole, he was placed

in the custody of Colorado authorities for a probation revocation proceeding in

connection with his 1998 kidnapping conviction. Eight months later, while the

instant case was pending, the Colorado court revoked Appellant’s probation, and

he was sent to a Colorado prison to serve his ten-year sentence.           And so

throughout the pendency of these civil commitment proceedings, Appellant has

been incarcerated in Colorado.




                                        2
II. After TDCJ released Appellant to Colorado’s custody, the State of Texas
    petitioned to civilly commit Appellant.

      Approximately two months after Appellant was placed in custody in

Colorado, on March 31, 2016, the State filed a petition to civilly commit Appellant

as a sexually violent predator. See id. But because Appellant was incarcerated

in Colorado at the time, the State sought to abate the proceedings indefinitely.

Appellant, through counsel, filed a response opposing the abatement. In his

response, Appellant cited the statutory requirement that a trial must be

conducted in a sexually-violent-predator proceeding within 270 days after the

petition is served. See id. § 841.061(a)(1) (West 2017). The trial court denied

the motion to abate.

      Prior to trial, Appellant’s trial counsel struggled to effectively and regularly

communicate with Appellant.       The Colorado prison in which Appellant was

located required a court order before it would allow any verbal communications

between Appellant and his attorney. Even after such an order was obtained, the

prison still hindered their ability to communicate by, for instance, requiring that

calls be supervised by a guard.

      Soon Appellant’s ability to appear in person for the trial became a concern

for both counsel and the trial court. In email correspondence with the attorneys,

the trial court inquired of the State how it planned to “get [Appellant] from

Colorado to Texas.”     An attorney for the State responded that he had been

unable to find any authority to bring Appellant to Texas for the proceeding and



                                         3
suggested that Appellant might participate in the trial through videoconferencing

instead.

      Following this email correspondence, in November 2016, Appellant filed a

motion to dismiss the commitment proceeding on two grounds: (1) that if the

State could not bring Appellant to Texas for the trial, his “absolute right” to

appear in person would be violated, and (2) the inability to effectively

communicate with his attorney violated his right to effective assistance of

counsel. The State responded by arguing that Appellant was not entitled to

appear in person at trial, and the State then formally requested that the trial court

allow him to appear through videoconferencing.

      The trial court denied Appellant’s motion to dismiss and granted the State’s

request to allow his participation in trial through videoconferencing. In its order,

the court required that a fax machine be available in the event “there [was] a

need to send facsimile copies of any documents to [Appellant] to review during

the trial” and also provided that Appellant should be afforded the opportunity to

communicate with his counsel whenever necessary by telephone “or other

appropriate means.”

      On the day of the first trial setting, January 9, 2017, Appellant appeared

through videoconferencing and requested a continuance.              In his request,

Appellant agreed to waive his right to proceed to trial within 270 days of being

served with the petition. See id. § 841.061(a)(1). The trial court granted the

continuance and reset the trial to begin April 17, 2017. The trial court also noted


                                         4
on the record that the State intended to seek permission from the Colorado trial

court to allow a Tarrant County official to transport Appellant to Texas for the

April trial.

III. The trial court conducted the trial without Appellant present.

       The State’s efforts to secure Appellant’s transportation to Texas for trial

ultimately proved unsuccessful, and on the morning of the first day of trial,

Appellant refused to appear by videoconferencing.         Appellant’s trial counsel

articulated that Appellant objected to appearing by video and to the trial being

conducted in his absence.      The trial court denied Appellant’s objection after

noting on the record that a live video connection with the Colorado prison had

been arranged. The trial court continued to deny repeated objections raised by

Appellant’s trial counsel throughout the proceeding regarding his client’s physical

absence from trial.

       At the end of the trial, the jury found that Appellant was a sexually violent

predator, and the trial court entered a final judgment civilly committing him. This

appeal followed.

                                    Discussion

       Appellant’s two issues on appeal relate to the effects of his imprisonment

in Colorado on his ability to participate in the civil commitment proceedings and

to effectively communicate with his attorney. In his first issue, Appellant argues

that the trial court violated his statutory and constitutional rights by conducting

the trial without him being physically present. In his second issue, Appellant


                                         5
argues that he was effectively denied his right to the assistance of counsel

throughout the proceedings.       Because we find that the statute governing

sexually-violent-predator civil commitments guarantees the right to appear in

person at trial, we sustain that part of Appellant’s first issue and do not reach his

second issue. See Tex. R. App. P. 47.1.

I. How to civilly commit a sexually violent predator

      In 1999, the Texas Legislature first recognized the existence of “a small

but extremely dangerous group of sexually violent predators” with behavioral

abnormalities that are not amenable to traditional mental illness treatment

modalities and that make them likely to engage in repeated predatory acts of

sexual violence.    Tex. Health & Safety Code Ann. § 841.001 (West 2017).

Accordingly, the legislature enacted chapter 841 of the health and safety code to

provide a mechanism for the civil commitment of sexually violent predators.

      A. Notice to TDCJ and an assessment of the person

      Pursuant to chapter 841, within two years of an inmate’s anticipated

release date, TDCJ is required to notify a multidisciplinary team of the anticipated

release of any person serving a sentence for a sexually violent offense. Tex.

Health & Safety Code Ann. § 841.021 (West 2017). The team, composed of

individuals from various state agencies, including a mental health professional, a

licensed sex offender treatment provider, and a licensed peace officer, then

conducts a two-part assessment of the inmate. Id. § 841.022 (West 2017).




                                         6
      First, the team assesses whether the person is a repeat sexually violent

offender and whether he is likely to commit a sexually violent offense after

release. Id. § 841.022(c)(1). The team then notifies TDCJ of its assessment

and, if appropriate, recommends the assessment of the person for a behavioral

abnormality.    Id. § 841.022(c)(2).      If the team recommends a behavioral-

abnormality assessment, the second part of the assessment takes place.

      Within 60 days of that recommendation, TDCJ must consult an expert to

ascertain if the person suffers from a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. Id. § 841.023(a) (West

2017). Based upon the expert’s opinion, if TDCJ determines that he does suffer

from a behavioral abnormality, TDCJ must give notice to the attorney

representing the state for the county in which the person was most recently

convicted of a sexually violent offense. Id. § 841.023(b).

      B. The civil commitment proceeding

      After receiving TDCJ’s notice, the state’s attorney has 90 days to file a

petition for civil commitment. Id. § 841.041(b)(1) (West 2017). Once filed, the

trial court is required to conduct a trial within 270 days. Id. § 841.061(a) (West

2017).

      The statute expressly grants the person certain rights during the

proceeding, including “the right to appear at the trial,” the right to a jury trial, and

the right to the effective assistance of counsel. Id. § 841.061(b), (d), § 841.144

(West 2017). And if a jury trial is conducted, “[t]he number and selection of


                                           7
jurors” are governed by chapter 33 of the code of criminal procedure.          Id.

§ 841.146(a) (West 2017). Chapter 33 includes a provision that a defendant

“must be personally present at the trial” except in trials of misdemeanors that do

not risk a jail sentence. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006)

(emphasis added).

      To receive a civil commitment order, the State must show beyond a

reasonable doubt that the person (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. Tex. Health & Safety Code Ann. § 841.003

(West 2017) (defining “sexually violent predator”), § 841.062(a) (West 2017)

(imposing a “beyond a reasonable doubt” burden of proof). The jury’s verdict

must be unanimous. Id. § 841.062(b).

      C. The terms of civil commitment

      If the factfinder determines that the person is a sexually violent predator,

the trial court must enter a civil commitment order. Id. § 841.081(a) (West 2017).

But before entering the order, the trial court may impose certain requirements,

including requirements that the person reside where instructed by the Texas Civil

Commitment Office (TCCO), that the person participate in and comply with a sex-

offender treatment program, and that the person submit to tracking and any other

appropriate supervision.   Id. § 841.082 (West Supp. 2017).        Once the civil

commitment order is entered, it is immediately effective, and treatment and




                                        8
supervision will begin once the person is released from a secure correctional

facility. Id. § 841.081.

      When the person is released from TDCJ’s custody, TCCO is responsible

for providing the appropriate and necessary supervision and treatment.            Id.

§ 841.007 (West 2017). TCCO accomplishes this through a tiered program that

provides the opportunity for the person to transition from a total-confinement

facility, to less restrictive housing and supervision, and then to an eventual

release from commitment, depending on the person’s behavior and treatment.

Id. § 841.0831 (West 2017). TCCO is required to transfer the person to less

restrictive housing and supervision if doing so is in the best interest of the person

and conditions can be imposed to adequately protect the community.                Id.

§ 841.0834 (West Supp. 2017). But TCCO may also transfer the person back to

a more restrictive tier if it later determines that such a transfer is necessary for

further treatment and to protect the community. Id.

      D. Review of commitment

      Any order of civil commitment must be periodically reviewed. If a civilly-

committed person does not petition for his release sooner, the statute requires a

“biennial” examination.    Id. §§ 841.101–.102, .121 (West 2017).           As it is

instructive in this case, we will address the biennial review process.

      In this process, the trial court judge reviews an updated report prepared by

an expert regarding the committed person’s status. Id. § 841.102. The statute

expressly provides that the committed person is not entitled to be present at the


                                         9
review, although he is entitled to be represented through counsel.               Id.

§ 841.102(b).

      After reviewing the expert’s report, the trial court may either issue an order

concluding the review or set a hearing for the purpose of determining whether the

terms of commitment should be modified or whether probable cause exists to

believe that the person’s behavioral abnormality has changed to the extent that

he is no longer likely to engage in a predatory act of sexual violence.          Id.

§ 841.102. If the trial court sets a hearing to determine whether probable cause

exists, this essentially becomes a de novo proceeding. Id. § 841.103(c) (West

2017).   The committed person is entitled to “all constitutional protections” he

enjoyed in the first proceeding. Id. Either side can request a jury, and the State

must once again meet its burden beyond a reasonable doubt. Id. And—most

significant to this case—the statute expressly provides that the committed person

is entitled to “be present” at the biennial-review probable cause hearing. Id.

II. Chapter 841 guarantees the right to physically appear at trial.

      Because liberty issues with serious constitutional implications are present

during these proceedings, chapter 841 affords many protections similar to

criminal trials. See Kansas v. Hendricks, 521 U.S. 346, 364, 117 S. Ct. 2072,

2083 (1997) (acknowledging the use of some traditionally criminal procedural

safeguards in state civil commitments). One of the enumerated statutory rights—

the meaning of which is the central issue in this case—is “the right to appear at




                                        10
the trial.” This right is found in section 841.061, entitled “Trial,” which provides, in

pertinent part:

            (b) The person or the state is entitled to a jury trial on
      demand. A demand for a jury trial must be filed in writing not later
      than the 10th day before the date the trial is scheduled to begin.

            (c) The person and the state are each entitled to an
      immediate examination of the person by an expert. All components
      of the examination must be completed not later than the 90th day
      before the date the trial begins.

             (d) Additional rights of the person at the trial include the
      following:

                    (1) the right to appear at the trial;

                   (2) except as provided by Subsection (f), the right to
             present evidence on the person’s behalf;

                   (3) the right to cross-examine a witness who testifies
             against the person; and

                   (4) the right to view and copy all petitions and reports in
             the court file.

Tex. Health & Safety Code Ann. § 841.061(b)–(d) (emphasis added). On appeal,

the State argues that subsection (1) entitles the person to appear through

counsel but not to be physically present at trial.        Appellant argues that the

statute’s guarantee of a “right to appear at the trial” means that the person is

entitled to be physically present. We agree with Appellant.

      Our primary objective in statutory construction is to give effect to the

legislature’s intent. Chesser v. LifeCare Mgmt. Servs., LLC, 356 S.W.3d 613,

619 (Tex. App.—Fort Worth 2011, pet. denied) (citing State v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006)). First and foremost, we look to the words of the


                                          11
statute. Id. at 619–20 (citing Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85

(Tex. 2006)).   We construe the statute’s words according to their plain and

common meaning, unless a contrary intention is apparent from the context or

unless such a construction leads to absurd results. Id. at 620 (citing City of

Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008)); see also Tex. Gov’t

Code Ann. § 311.011(a) (West 2013) (“Words and phrases shall be read in

context and construed according to the rules of grammar and common usage.”).

      To support its position, the State points out that section 841.061(d) uses

the phrase “right to appear” rather than “right to be present.” The State then

directs our attention to section 841.103(c), involving the biennial-review process,

where the statute provides that the person “is entitled to be present” at the

probable cause hearing. See Tex. Health & Safety Code Ann. § 841.103(c)

(emphasis added). 1 Thus, the State argues, the plain language of the statute

demonstrates that the legislature chose to afford the person only a right to

appear at the initial commitment hearing but to afford the person the right to be

present at any subsequent probable cause hearing.

      But such a reading would lead to an absurd result. See Chesser, 356

S.W.3d at 620. It would afford a person greater rights two years after his liberty

has been taken than he would be entitled to when his liberty is first placed at risk.


      1
       Yet another section expressly provides that at the biennial review, the
person “is not entitled to be present.” See Tex. Health & Safety Code Ann.
§ 841.102(b).


                                         12
      Appellant points out another absurdity. The State’s interpretation ignores

section 841.146, which directly incorporates code of criminal procedure

chapter 33’s provisions regarding a criminal defendant’s right to be present at

voir dire. Tex. Health & Safety Code Ann. § 841.146 (providing that if a jury trial

is conducted in a sexually-violent-predator civil commitment proceeding, “the

number and selection of jurors” is governed by chapter 33 of the code of criminal

procedure).    The court of criminal appeals has interpreted article 33.03 as

granting an unwaivable right to be present during voir dire. Miller v. State, 692

S.W.2d 88, 91–93 (Tex. Crim. App. 1985) (construing article 33.03’s allowance

for the trial court to proceed with trial “after the jury has been selected” in the

event the defendant voluntarily absents himself from the trial). And we agree

with our sister court that the incorporation of chapter 33 into chapter 841 means

that a person facing civil commitment under chapter 841 is entitled to be

physically present during voir dire. See In re Commitment of Young, 410 S.W.3d

542, 553 (Tex. App.—Beaumont 2013, no pet.). Again, it seems absurd that the

legislature would, on the one hand, provide a person with the right to be

physically present during voir dire, but on the other hand, deny the person the

right to be physically present during the trial itself.

      The State points to an additional provision in chapter 841 to contend that

videoconferencing meets the requirements of this statute. Section 841.152(a)

provides that a person’s right “to be present” at the probable cause hearing

during   the   biennial    review   can    be    met      through   closed-circuit   video


                                           13
teleconferencing. Tex. Health & Safety Code Ann. § 841.152(a) (West Supp.

2017). This argument actually provides support to the contrary. The legislature,

fully aware of videoconferencing technology, chose to allow it specifically in the

context of the biennial review, but did not make a similar provision in the context

of the initial commitment hearing. We decline the State’s invitation to read an

entire provision into the initial civil commitment trial process that is not present.

See In re Ford Motor Co., 442 S.W.3d 265, 287 (Tex. 2014) (orig. proceeding)

(applying the well-established presumption that the legislature “omitted words it

intended to omit”); Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.) (declining to “add”

language to a statute because the legislature had demonstrated elsewhere that it

“clearly knew” how to use such language), cert. denied, 530 U.S. 1244 (2000).

      The State also urges us to apply the general precedent of civil caselaw

holding that an inmate does not have an automatic right to appear personally in

court. See, e.g., In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Alternatively,

the State suggests that Appellant “appeared” for purposes of the statute by filing

an answer or any other pleadings.       Not only does this argument ignore the

statutory language that Appellant had the right to appear at the trial, the state’s

argument makes little sense in the context of this type of civil proceeding.

Although civil in nature, a civil commitment proceeding is a far cry from the

traditional civil lawsuit. The State’s argument ignores the significant difference

between a civil commitment proceeding where personal liberty is at stake and a

general civil case which seeks only monetary or other compensation. See, e.g.,


                                         14
Ringer v. Kimball, 274 S.W.3d 865, 868 (Tex. App.—Fort Worth 2008, no pet.)

(holding that inmate did not have a right to appear in person to prosecute

contract claim against his former attorneys); In re R.C.R., 230 S.W.3d 423, 426–

27 (Tex. App.—Fort Worth 2007, no pet.) (holding that pro se inmate must be

given alternative means to appear in civil action pertaining to lien and levy

against inmate’s bank account). Under this statutory scheme, there is no method

by which Appellant could have forfeited his right to a trial by failing to appear or

file an answer.

       For these reasons, we hold that the legislature guaranteed the right to be

physically present at trial to persons facing civil commitments as sexually violent

predators. Because the trial court proceeded to trial without affording Appellant

his right to be physically present, we hold that the trial court erred and we sustain

Appellant’s first issue. 2

III. Appellant’s absence from the trial caused him harm.

       Having found error, we must determine whether the error probably caused

rendition of an improper judgment or probably prevented Appellant from properly

presenting the case to this court.     Tex. R. App. P. 44.1(a); Romero v. KPH



       2
      Because we hold that the right to be physically present at trial is statutorily
guaranteed, we do not reach Appellant’s constitutional arguments. See Tex. R.
App. P. 47.1. We do however note our concern that proceeding to trial without
the person’s physical presence could present constitutional concerns. Cf.
Hendricks, 521 U.S. at 356–60, 117 S. Ct. 2079–81 (evaluating Kansas’s civil
commitment statutory scheme in light of substantive due process concerns).


                                         15
Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).         Based on the record

before us, it seems clear that Appellant’s absence caused him harm.

      At the outset, the trial court highlighted Appellant’s absence, leaving the

false impression that Appellant’s failure to appear by video at trial was simply a

matter of Appellant’s indifference to participation. At the beginning of voir dire,

the trial court instructed the jury as follows:

      Mr. Bluitt is not present in court today. Mr. Bluitt is in Colorado. We
      had made arrangements for Mr. Bluitt to appear by video
      conferencing where he would be able to see you and you would be
      able to see him and he would be able to hear what anyone was
      saying. However, Mr. Bluitt has chosen not to participate by video
      conferencing. And that is his choice.

[Emphasis added.]

      We first note our concern with the trial court’s statement.               After

commenting to the jury that Appellant had “chosen not to participate,” the trial

court refused to allow Appellant’s counsel to explain to the jury the reason that

Appellant had made such a “choice,” i.e., that Appellant insisted upon his right to

appear in person. Because the trial court’s comment did nothing to explain the

circumstances surrounding Appellant’s “choice,” it left open the negative

inference that Appellant did not appear simply because he did not care. Had the

jury made such an inference without the trial court’s assistance is one thing, but it

is quite another for the trial court to comment on Appellant’s exercise of a right in

such a way that encourages a negative impression for the jury. This is why the

law does not permit commentary on the defendant’s decision not to testify or his



                                           16
exercise of a privilege claim in a criminal proceeding. See Tex. R. Evid. 513

(prohibiting the court or counsel from commenting upon a privilege claim); Griffin

v. California, 380 U.S. 609, 614–15 (1965) (“What the jury may infer, given no

help from the court, is one thing. What it may infer when the court solemnizes

the silence of the accused into evidence against him is quite another.”). Here,

the trial court could have avoided the potential of creating a false impression with

the jury by saying nothing at all, especially since the jury later heard evidence of

Appellant’s incarceration in Colorado which was the primary stumbling block in

securing his presence at trial.

      The residual effect of the trial court’s comment is quite apparent in the

record when reviewing the statements made by the venire panel throughout the

remainder of voir dire regarding Appellant’s absence from trial.            Several

members of the venire panel voiced concern—even irritation—that Appellant was

not present. Twelve indicated outright that they would feel so strongly about

Appellant’s absence that they could not be fair to him. For example:

   • “I feel that first of all, he is not even here today. You know, I had changed
     my plans to be here today. It just has a bad feeling already that I’m pretty
     sure that I would not be fair and impartial.”

   • “[T]he idea that he is not here even sort of makes me think already that the
     guy is guilty.”

   • “Yeah, there’s no way [I could be a fair juror] already in my mind.”

   • “Is he incarcerated? Is he hospitalized now?” When the prosecutor asked
     how his being incarcerated could affect her view, she admitted, “I would be
     biased, let’s just say that, biased towards his guilty [sic].”



                                        17
   • When asked if he could consider Appellant’s testimony offered through a
     taped deposition the same as he would live testimony, another
     venireperson admitted that he “would view a deposition as a lower form of
     evidence than were he here in person” and felt it “would make him less
     credible.” Two other veniremembers agreed with him.

   • “I’m struggling with such a serious matter, trying not to read into the fact
     that the Defendant is not taking the time or able to take the time to
     represent - - to be part of it. I - - I just struggle with that a little bit. I’ll be
     honest.”

   • “If he’s being accused of something, I want to be up front, I want to be here
     I want people to see me, you know. And I understand that assuming you
     just said he is probably still in prison, but he can be handcuffed and flown
     out here, I guess, and that would make a difference for me.”

      While some, if not all, of these veniremembers were stricken, these

statements—made within the hearing of the entire venire panel—provide insight

into how the trial court’s instruction and Appellant’s absence were viewed by

potential jurors in the case. When the trial court refused to allow Appellant’s trial

counsel to explain that Appellant wanted to attend but attempts to have him

transported back to Texas for trial had failed, the likelihood for a distinctly false

impression to be formed in the jurors’ minds was further compounded.

      Additionally, the State’s sole live witness relied upon and highlighted

Appellant’s demeanor, the very factor that the jury was deprived of evaluating for

themselves. While Appellant’s videotaped deposition was played for the jury,

Dr. Darrel Turner, a clinical psychologist, appeared live, and in his testimony

regarding his evaluation of Appellant, Dr. Turner emphasized Appellant’s

demeanor as it appeared to Dr. Turner during his three-hour interview of

Appellant and during the videotaped deposition.              Dr. Turner testified that


                                           18
Appellant’s demeanor was “markedly different” during the interview from his

demeanor as reflected in the recorded deposition. He expanded, saying that

when he met with Appellant, Appellant looked “physically different,” and “much

more . . . cocky, much less subdued.” He described his surprise upon receiving

and reviewing the video of the deposition because “it really did look like a

different person . . . that I had spoken with who was very, very, very sure of

himself and very cocky.” He opined that Appellant appeared in the deposition

video to be “making an effort to present himself as a bit more meek than he was

. . . when [Dr. Turner] met with him.” Dr. Turner noted that this difference was

diagnostically significant in determining that Appellant had antisocial personality

disorder.

      The State further emphasized Appellant’s demeanor in its closing

argument. Although it initially cautioned the jury, “It doesn’t matter that he’s in

Colorado.   It’s completely irrelevant to whether or not he has a behavior

abnormality,” the State went on to argue that the jury was able to observe

Appellant’s demeanor in his video deposition, even noting that that may have

been the only thing that was “helpful” about watching the deposition.

      With such stress placed on his demeanor, Appellant was placed at a

severe disadvantage by being precluded from attending the trial in person and

allowing the jurors to judge his demeanor for themselves. It is axiomatic that a

key role of the jury is to judge the demeanor of the witnesses and the parties

before it. See, e.g., Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761


                                        19
(Tex. 2003) (noting the “familiar principle that the jury is the sole judge of the

credibility of witnesses”). 3

       Having found harmful error, we reverse the trial court’s judgment.

IV. We remand for proceedings consistent with this opinion.

       Chapter 841 requires that the civil commitment trial take place within 270

days after the petition is filed, see Tex. Health & Safety Code Ann. § 841.061(a),

but it also allows the trial court to continue the trial “if the person is not

substantially prejudiced by the continuance and . . . on the request of either party

and a showing of good cause . . . or on the judge’s own motion in the due

administration of justice,” id. § 841.063(a) (West 2017). At the first trial setting,

Appellant agreed to waive the 270-day requirement.              We remand these

proceedings to the trial court to determine the extent of that waiver, see Tex. R.

App. P. 43.2(d), or if a continuance should be granted on any other grounds.




       3
        Furthermore, even if Appellant had availed himself of the
videoconferencing option offered, we are not convinced that Appellant would
have had adequate ability to communicate with his counsel during the
proceedings. We acknowledge that the trial court stated that it would allow
Appellant to communicate with his counsel by phone, videoconference, or
facsimile, whenever requested. But it is unclear how Appellant could have both
privately and contemporaneously communicated with his attorney under such
circumstances, leaving some doubt as to the efficacy of videoconferencing in
affording Appellant the ability to assist in his own defense.


                                         20
                                    Conclusion

      Having determined that Appellant was entitled to appear in person at the

civil commitment trial, we reverse the trial court’s judgment and remand this case

to the trial court for further proceedings consistent with this opinion. See id.


                                                     /s/ Bonnie Sudderth

                                                     BONNIE SUDDERTH
                                                     CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and BIRDWELL, JJ.

DELIVERED: July 12, 2018




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