                                                                     PD-0122-15
                                                    COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
    June 23, 2015                                 Transmitted 6/23/2015 12:56:10 PM
                                                     Accepted 6/23/2015 2:02:59 PM
                                                                     ABEL ACOSTA
                      Case No. PD-0122-15                                    CLERK
      ___________________________________________________


            IN THE TEXAS COURT OF CRIMINAL APPEALS
      ___________________________________________________


          ERIC DWAYNE STEVENSON v. THE STATE OF TEXAS
      ___________________________________________________


                    On Discretionary Review
                 of Appeal No. 02-13-00537-CR
            in the Second Court of Appeals of Texas
                         at Fort Worth
      ___________________________________________________


                        APPELLANT’S BRIEF

      ___________________________________________________


                                                 Scott Walker
                                         STATE BAR # 24004972
                                       222 W. Exchange Avenue
                                         Fort Worth, TX 76164
                                               (817) 478-9999
                                     (817) 977-0163 Facsimile
                                       scott@lawyerwalker.com
                                       Attorney for Appellant


                    Oral Argument Not Permitted




1
        IDENTITY OF JUDGE, PARTIES, AND COUNSEL


Trial Court Judge:        Hon. Robb Catalano Criminal
                          District Court 3
                          Tarrant County, Texas

Appellant:                Eric Dwayne Stevenson

Trial Counsel:            Stephanie Patten
                          1300 W. University Drive, 602
                          Fort Worth, Texas 76102

                          Steve Gordon
                          201 Moneda Street
                          Fort Worth, Texas 76117

Appellate                 Scott Walker
Attorney for Appellant:   Attorney at Law
                          222 W. Exchange Avenue
                          Fort Worth, Texas 76164

Appellee:                 The State of Texas

Trial Attorney for        Lloyd E. Whelchel &
Appellee:                 Catherine P. Simpson
                          Tarrant County Assistant
                          District Attorneys
                          401 W. Belknap
                          Fort Worth, Texas 76196

Appellate Attorney for    Debra Windsor (appeal)
Appellee:                 Assistant Tarrant County
                          District Attorney
                          401 W. Belknap
                          Fort Worth, Texas 76196

                          Lisa McMinn (discretionary
                          review)
                          State Prosecuting Attorney
                          P.O. Box 12405
                          Austin, Texas 78711
2
                     TABLE OF CONTENTS
                                                       PAGE
IDENTITY OF JUDGE, PARTIES, AND COUNSEL. . . . .   2
TABLE OF CONTENTS. . . . . . . . . . . . . . . .   3
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 7
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . .   8
QUESTIONS FOR REVIEW
    QUESTION NUMBER ONE: (The convictions on Count
    I, Count II, and Count III are for the same
    offense for double jeopardy purposes).
    QUESTION NUMBER TWO: The trial court had
    no jurisdiction in this case because the
    prior jurisdictional judgment was on appeal
    and was, therefore, not a final judgment.
    QUESTION NUMBER THREE:    The trial court
    erred by denying Appellant’s motion for
    directed verdict.
    QUESTION NUMBER FOUR: The trial court erred
    by denying Appellant’s motion to quash the
    indictment.
    QUESTION NUMBER FIVE: The trial court erred
    by sustaining the State’s relevance motion
    to Appellant’s proffered evidence that the
    commitment order was on appeal. . . . . . .   8
STATEMENT OF FACTS   . . . . . . . . . . . . . . . 9
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 9
ARGUMENT . . . . . . . . . . . . . . . . . . . . 11
PRAYER . . . . . . . . . . . . . . . . . . . . . 40
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 40
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 41




3
                  INDEX OF AUTHORITIES

                         CASES

Austin v. State,
    P.D. 14 (Tex.Crim.App., delivered March 18, 2015).37

Bohannan V. State,
    2014 Tex.App.Lexis 11825 (Tex. App.—Beaumont,
    delivered October 29, 2014, no pet.). . . . . 34, 38

Boykin v. State,
    818 S.W.2d 782 (Tex.Crim.App. 1991). . . . . . . .31

Duckett v. State,
    454 S.W.2d 755 (Tex.Crim.App. 1970) . . . . . . . 14

Ex Parte Jimenez,
    361 S.W.3d 679 (Tex.Crim.App. 2012). . . . . . .   32

Ex Parte Manuel Cavazos,
    203 S.W.3d 333 (Tex.Crim.App. 2006). . . . . .13, 15

Fletcher v. State,
    214 S.W.3d 5 (Tex.Crim.App. 2007). . . . . . . . .33

Giesberg v. State,
    984 S.W.2d 245 (Tex.Crim.App. 1998). . . . . . . .38

Gongora v. State,
    916 S.W.2d 570 (Tex.App.—Houston 1st dist.
    1996, PDRR) . . . . . . . . . . . . . . . . . 12, 15

Gonzalez v. State,
    8 S.W.3d 640 (Tex.Crim.App. 2000). . . . . . . . .14

Holberg v. State,
    38 S.W.3d 137 (Tex.Crim.App. 1987) . . . . . . . .20

Jordan v. State,
    36 S.W.3d 871 (Tex.Crim.App. 2001) . . . .20, 21, 23

4
Lopez v. State,
    108 S.W.3d 293 (Tex.Crim.App. 2003) . . . . . 13, 15

Milburn v. State,
    201 S.W.3d 749 (Tex.Crim.App. 2006)   . . . . . . .21

Mobley v. State,
    2008 WL 4414254 (Tex.App.—Texarkana 2008,
    no pet.) . . . . . . . . . . . . . . . . . . . . .13

Rabb v. State,
    730 S.W.2d 751 (Tex.Crim.App. 1987) . . . . . . . 20

Smith v. Doe,
    538 U.S. 84, 101, 123 S.Ct. 1140, 155
    L.Ed.2d 164 (2003) . . . . . . . . . . . . . . . .18

Smith v. State,
    2014 Tex.App.Lexis 10117 (Tex.App.—Beaumont.
    Delivered September 10, 2014, no pet.). . . . 36, 37

State v. Baker,
    761 S.W.2d 465 (Tex.App.—Eastland, 1988,
    no pet.) . . . . . . . . . . . . . . . . . .   12, 15

State v. Johnson,
    219 S.W.3d 386 (Tex.Crim.App. 2007). . . . . . .   30

Stevenson v. State,
    2015 Tex. App. LEXIS 387 (Tex.App.—Fort Worth
    2015). . . . . . . . . . . . . . . . . . . . . .   29

Tamez v. State,
    980 S.W. 2d 845 (Tex.Crim.App. 1998) . . . . . .   22




5
                        STATUTES
Tex.Health and Safety Code,
    Chapter 841. . . . . . . . . . . . . . . . . 28, 32

Tex.Health and Safety Code,
    §841.085 . . . . . . . . . . . . . . . . . . .     13

Tex.Health and Safety Code,
    §841.062. . . . . . . . . . . . . . . . . . . . .28

Tex.Health and Safety Code,
    §841.062(a). . . . . . . . . . . . . . . . . . . 31

Tex.Health and Safety Code,
    §841.081(a). . . . . . . . . . . . . . . . . 29, 30

Tex.Health and Safety Code,
    §841.082. . . . . . . . . . . . . . . . . . . .    28

Tex.Health and Safety Code,
    §841.085(a). . . . . . . . . . . 29, 30, 32, 34, 36

                          Rules
Tex. R. App. P.,
    11. . . . . . . . . . . . . . . . . . . . . . .    28

Tex. R. App. P.
    25.2(g) . . . . . . . . . . . . . . . . . .   20, 24

                     Other Authorities

Acts 1999, 76th   Leg., ch. 1188, § 4.01. . . . . . . 31

Acts 2007, 80th   Leg., ch. 1219, § 8. . . . . . . .   31




6
                       PD-0122-15




      IN THE TEXAS COURT OF CRIMINAL APPEALS




    ERIC DWAYNE STEVENSON v. THE STATE OF TEXAS



              On Discretionary Review
           Of Appeal No. 02-13-00537-CR
      In the Second Court of appeals of Texas
                   at Fort Worth
___________________________________________________


                    APPELLANT’S BRIEF
___________________________________________________


TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
               STATEMENT OF THE CASE
    This   appeal    has   resulted   from    a    criminal
prosecution   for    violation   of   civil       commitment
requirements for sexually violent predators.           (C.R.
Vol. 1, p. 123).      The jury was charged on three
separate counts of the same offense.         (C.R. Vol. 1,
p. 104).   Appellant was found guilty on all three
counts by a jury.     The jury assessed punishment at


                            7
seventeen years on each count.           (C.R. Vol. 1, p. 123-
138).

           STATEMENT REGARDING ORAL ARGUMENT

    This     Court’s    order    granting      Mr.    Stevenson’s

discretionary    review        petition      stated    that    oral

argument would not be permitted.

QUESTIONS PRESENTED

    QUESTION NUMBER ONE:             The convictions on Count

I, Count II, and Count III are for the same offense

for double jeopardy purposes.

    QUESTION NUMBER TWO:             The trial court had no

jurisdiction     in     this     case     because      the    prior

jurisdictional       judgment    was    on    appeal    and   was,

therefore, not a final judgment.

    QUESTION NUMBER THREE:              The trial court erred

by denying Appellant’s motion for directed verdict.

    QUESTION NUMBER FOUR: The trial court erred by

denying Appellant’s motion to quash the indictment.

    QUESTION NUMBER FIVE: The trial court erred by

sustaining     the     State’s       relevance   objection       to

                                 8
Appellant’s proffered evidence that the commitment

order was on appeal.

                       STATEMENT OF FACTS

    After      being    found      to   be   a   sexually     violent

predator, the Appellant was sent to a halfway house

in Tarrant County.           After a short time, he decided

to remove his ankle monitor, leave the facility, and

visit his child and the child’s mother.                  (R.R. Vol.

4, p. 45-49).        He was arrested some four hours later

at the home of his child and the child’s mother.

(R.R.   Vol.    4,     p.   94).        Based    on   this,   he   was

subsequently         charged       with      several    counts     of

violation of a civil commitment order by a sexually

violent predator.           (C.R. Vol. 1, p. 5-7).

                  SUMMARY OF THE ARGUMENT

    The convictions on Count I, Count II, and Count

III are for the same offense for double jeopardy

purposes.      Appellant was convicted of three separate

counts of the same offense.               (C.R. Vol. 1, p. 123-

139).   Therefore, two of the three counts are barred


                                   9
under the double jeopardy provisions of the Texas

and Federal Constitutions.

       Furthermore, the trial court had no jurisdiction

in     this    case    because     the      prior   jurisdictional

judgment was on appeal and was, therefore, not a

final judgment.         The said jurisdictional judgment

which found that Appellant was a sexually violent

predator was on appeal at the time this case was

tried. The mandate issued on December 3, 2013, which

was    five    weeks    after     the       trial   of   this   case.

Therefore, the trial court had no jurisdiction to

hear    the    case,    and      the     convictions     should    be

reversed.       For these same reasons, the trial court

erred in denying Appellant’s motion to quash the

indictment, denying Appellant’s motion for directed

verdict, and by sustaining the State’s relevance

objection to Appellant’s proffered evidence that the

commitment order was on appeal.



       Also,    the     elements       of    the    non-penal-code


                                  10
criminal offense defined in Section 841.085(a) of

Chapter 841 of the Texas Health and Safety Code

are    that       a    person violates a civil commitment

requirement           “after     having     been    adjudicated    and

civilly committed as a sexually violent predator.”

It cannot be said that there is any evidence (or

that    there         is     legally    sufficient     evidence)    to

support       a        person’s     conviction        under   Section

841.085(a)            when    the   evidence       conclusively    and

undisputedly establishes that this person was not

an “adjudicated” sexually violent predator when he

allegedly violated a civil commitment requirement.

And    this person            cannot have this status of an

“adjudicated” sexually violent predator until his

commitment order is final.

                       ARGUMENT QUESTION NUMBER ONE

      QUESTION NUMBER ONE RESTATED: The                   convictions

on Count I, Count II, and Count III are for the same

offense for double jeopardy purposes.




                                       11
    APPLICABLE LAW:       Due        to   the     fact   that   the

statute that allows for civil commitment for sexually

violent predators is relatively new, there are no

cases specifically on point.              Therefore, the Court

of Appeals used a case that has nothing to do with a

civil    commitment     order    in       order    to      overrule

Appellant’s first issue, stating that each separate

violation of the commitment order is a separate

offense.    The case was a loan fraud case and is in

no way on point.      However, there are cases involving

analogous situations.       The law relating to double

jeopardy when multiple convictions are handed down

at the same time, as in this case, is well-developed.

For example, two separate convictions for possession

of marijuana and delivery of the same marijuana is a

violation of the double jeopardy provisions of the

Texas and United States Constitutions.                   Gongora v.

State,   916   S.W.2d   570,     577      (Tex.App.—Houston     1st

Dist. 1996, PDRR), State v. Baker, 761 S.W.2d 465,

467 (Tex.App.—Eastland, 1988, no pet.), Lopez v.


                                12
State, 108 S.W.3d 293, 300 (Tex.Crim.App. 2003).

Also, two separate convictions for Burglary of a

Habitation when there is two victims but only one

unlawful entry is also barred by the double jeopardy

provisions   of    the   Texas   and   United   States

Constitutions.    Ex Parte Manuel Cavazos, 203 S.W.3d

333,337   (Tex.Crim.App.   2006).      An   unpublished

memorandum opinion out of the Texarkana Court of

Appeals cited Cavazos for the same proposition.     The

case, while not authoritative, could be helpful.

Mobley v. State, 2008 WL 4414254 (Tex.App.—Texarkana

2008, no pet.).

    A double jeopardy complaint that a defendant was

convicted of the same offense multiple times during

the same trial can be raised for the first time on

appeal, as is cited below:

    . . . because of the fundamental nature of double
    jeopardy protections, a double jeopardy claim
    may be raised for the first time on appeal . .
    . when the undisputed facts show the double
    jeopardy violation is clearly apparent on the
    face of the record and when enforcement of usual
    rules of procedural default serves no legitimate


                           13
     state interest.   Gonzalez v. State, 8 S.W.3d
     640, 643 (Tex.Crim. App. 2000).

The Court in Gonzalez went on to say that when the

two disputed convictions occurred in the same court,

on the same day, before the same judge, and were

based on the same evidence, as was the case in

Duckett   v.   State,      454   S.W.2d   755    (Tex.Crim.App.

1970), there is clearly no state interest that would

be served by requiring an objection in order to

preserve the jeopardy issue.          Gonzalez v. State, 8

S.W.3d 640, 643 (Tex.Crim. App. 2000).

       When    multiple     convictions      result   from   one

trial for similar or identical offenses, the question

of   whether    the   double      jeopardy      provisions   are

violated is determined by looking at the legislative

intent as to the allowable unit of prosecution.

     The allowable unit of prosecution for burglary

is the unlawful entry, while the allowable unit of

prosecution    for    an     assaultive    offense    is     each

complainant, as is cited below:



                                 14
     The allowable unit of prosecution for an
     assaultive offense is each complainant. . .
     Burglary, however, is not an assaultive offense;
     rather, its placement within Title 7 indicates
     that the legislature determined burglary to be
     a crime against property. Thus, the complainant
     is not the appropriate allowable unit of
     prosecution in a burglary; rather, the allowable
     unit of prosecution in a burglary is the unlawful
     entry. Applicant’s convictions violate double
     jeopardy because he was punished multiple times
     for a single unlawful entry.     Ex Parte Manuel
     Cavazos, 203 S.W.3d 333,337 (Tex.Crim.App.
     2006).

The following is another example: The allowable unit

of   prosecution       in    a    drug    case     is   the    illegal

substance.      Gongora v. State, 916 S.W.2d 570, 577

(Tex.App.—Houston 1st Dist. 1996, PDRR), State v.

Baker, 761 S.W.2d 465, 467 (Tex.App.—Eastland, 1988,

no   pet.),    Lopez    v.       State,    108    S.W.3d      293,   300

(Tex.Crim.App. 2003).

     ARGUMENT:          The convictions on Count I, Count

II, and Count III were for the same offense for

double jeopardy purposes.                Appellant was convicted

of   three    separate      counts       of   violation       of   civil

commitment      requirements            for      sexually      violent

predators.      Again, there are no Texas cases that

                                   15
explore    the       allowable    unit        of    prosecution    in   a

violation       of     civil    commitment          requirements    for

sexually violent predators. However, it would appear

that the allowable unit of prosecution would be the

violation of one or more of the rules contained in

the commitment order.            The State will probably argue

that     each    separate        violation           constitutes    the

allowable unit of prosecution.                      However, there is

nothing contained in the statute that would indicate

that the legislature intended multiple punishments

for each separate violation of the order.

       Chapter       841   of   the        Health   and   Safety   Code

provides the regulations for civil commitment of

sexually     violent        predators.               Section   841.085

contains the criminal penalty for the offense:

       (a) A person commits an offense if, after having
       been adjudicated and civilly committed as a
       sexually violent predator under this chapter,
       the   person   violates   a   civil   commitment
       requirement imposed under Section 841.082(b) An
       offense under this section is a felony of the
       third degree. . . (Texas Health and Safety Code
       §841.085).



                                      16
Above-mentioned Section 841.082 provides a list of

seven requirements that must be included in the

order.   There is an eighth requirement listed, which

is any other requirements determined necessary by

the judge.   Some of the eight mandatory requirements

listed in the statute are written very broadly, which

indicates    that   the   listed    requirements   could

actually number a lot more than eight.      For example:

The requirement four states that the person must

comply with all written requirements imposed by the

case manager or otherwise by the Office of Violent

Sex Offender Management.        These requirements could

be numerous.   If the legislature intended that each

violation of these numerous requirements could be a

separate offense, it would appear that they would

have specifically stated so.       After all, failure to

comply with any one of the requirements would most

likely not be illegal for anyone who had not been

found to be a sexually violent predator under the

statute.     It would not be fundamentally fair to


                           17
impose multiple felony punishments for what would

usually be very minor infractions of the rules.

Doing so would be like allowing multiple convictions

in a probation revocation proceeding because the

probationer        violated     multiple    conditions     of

probation.        A 2003 United States Supreme Court case

contains language that substantiates this argument.

The Court stated that a sex offender who fails to

comply     with     the   reporting   requirements   may   be

subjected to a criminal prosecution for that failure.

Smith v. Doe, 538 U.S. 84, 101,102, 123 S.Ct. 1140,

155 L.Ed.2d 164 (2003).         The language is that if one

fails to comply with the requirements, he or she may

be   subjected       to   a   [one]   criminal   prosecution.

‘Criminal prosecution’ is singular which indicates

only one single prosecution for multiple violations.

The multiple punishments in this case violate double

jeopardy, and two of the three convictions should be

vacated.




                                18
    In the instant case, Trial Counsel did not object

to the jeopardy violation.          However, the jeopardy

violation is clear from the face of the record, and

there is no State interest in requiring an objection

in order to preserve error when the two convictions

happened on the same day, in the same court, and in

front of the same judge.     Two of the cases are barred

under double jeopardy provisions.          Therefore, the

cases should be reversed.

           ARGUMENT QUESTION NUMBER TWO

    QUESTION NUMBER TWO RESTATED: The        trial       court

had no jurisdiction in this case because the prior

jurisdictional    judgment    was   on   appeal    and   was,

therefore, not a final judgment.

    APPLICABLE LAW:     It    is    well-settled     that   a

jurisdictional challenge may be raised for the first

time on appeal.    Rabb v. State, 730 S.W.2d 751, 752

(Tex.Crim.App. 1987), Holberg v. State, 38 S.W.3d

137, 139 n.9 (Tex.Crim.App. 1987).        When a criminal

conviction is on appeal, the judgment is not a final


                             19
judgment    until    the   appellate     court     affirms    the

conviction and issues its mandate.                    Jordan v.

State, 36 S.W.3d 871, 875 (Tex.Crim.App. 2001).                 A

trial court does not have jurisdiction over a case

until the mandate has issued.                (Tex. Rules App.

Proc., §25.2 (g).

     Due to the fact that the statute which allows

for civil commitment for sexually violent predators

is relatively new, there are no cases specifically

on   point.     However,    there      are    cases   involving

analagous     situations.        The   law    is    clear    that

convictions must be final convictions in order to be

used for enhancement purposes.               The courts have

followed this rule even when the word ‘final’ is not

included in the applicable statute. Jordan v. State,

36 S.W.3d 871, 873 (Tex.Crim.App. 2001).                    Also,

convictions must be final convictions before the

convictions    can    preclude     a   person      from   getting

probation.      Jordan v. State, 36 S.W.3d 871, 874




                              20
(Tex.Crim.App. 2001), Milburn v. State, 201 S.W.3d

749 (Tex.Crim.App. 2006).

      Probably the most analagous situation deals with

DWI   cases   that   are   felony   offenses   because   the

defendant has two prior DWI convictions.         The prior

convictions must be final convictions.          If a prior

DWI conviction is on appeal, it is not a final

conviction. Jordan v. State, 36 S.W.3d 871, 875

(Tex.Crim.App. 2001).      However, the burden is on the

defendant to demonstrate that a judgment which seemed

regular on its face was not in fact final at the

relevant point in time, by showing that a motion for

new trial or a notice of appeal had been filed.

Milburn v. State, 201 S.W.3d 749, 753 (Tex.Crim. App.

2006).    A prior DWI conviction used to enhance a

misdemeanor DWI to that of a felony is jurisdictional

because the felony court would not have jurisdiction

over the DWI without the enhancement conviction.

Tamez v. State, 980 S.W. 2d 845, 847 (Tex.Crim.App.

1998).    Likewise, in a criminal prosecution for a


                             21
violation of a commitment order of a sexually violent

predator, the trial court would not have jurisdiction

over the case absent the civil commitment judgment.

The existence of the civil commitment is an essential

element       of   the    offense,      just      as   the   prior   DWI

convictions are essential elements of a felony DWI

prosecution.          Tamez v. State, 980 S.W.2d 845, 847

(Tex.Crim.App. 1998).

       ARGUMENT:         The trial court had no jurisdiction

in     this    case      because   the       prior     jurisdictional

judgment was on appeal and was, therefore, not a

final judgment.          The prosecution may argue that the

civil commitment order is not a criminal conviction,

and,    therefore,        the   law     as   to    the    finality   of

criminal convictions is inapplicable.                    However, such

an argument would not take into account the fact that

the existence of a civil commitment is an essential

element       of   the    offense,      just      as   the   prior   DWI

convictions are essential elements of a felony DWI

prosecution.          The whole purpose of the finality


                                   22
requirements        is     to    stimulate        reliability       and

uniformity.      “The finality concept exists in part to

prevent the necessity of a trial judge being placed

in   the    position       of   trying     to    predict    what     an

appellate court might do in a pending case and to

prevent     their        judgments     from      being    overturned

because of subsequent events that occur in a pending

case.”       Jordan       v.    State,     36    S.W.3d    871,     875

(Tex.Crim.App.         2001).        The   Jordan    opinion       also

indicates that allowing a felony conviction to occur,

when there is a possibility of acquittal on the

appeal      of   the      underlying       judgment,       would     be

problematic and unjust.              In trial, the prosecutor

for the State argued to the trial judge that the

commitment statute states that the commitment order

is effective immediately on entry of the order.                      It

is   true    that    Section      84.081        states    just    that.

However, it does not state anything about whether a

pending appeal stays any enforcement rights created

by the statute.          When criminal defendants are placed


                                  23
on probation, the conditions of probation are also

effective immediately.    Nonetheless, the perfection

of an appeal, followed by the filing of the record,

stays any further actions of the trial court in the

case until the appeals court affirms the conviction

and mandate is issued.    (Texas Rules of App. Proc.

§25.2g). This statute exists to stimulate uniformity

and reliability.    This legitimate interest is just

as prevalent in the instant case as in probation

cases.

      The State would like to argue that the Appellant

failed to preserve the issue for appeal because he

did not get a copy of the notice of appeal of the

commitment order into the record.       That argument

would be misplaced because Appellant did get the

notice of appeal admitted during the hearing on his

motion to quash the indictment.     (R.R. Vol. 2, p.

4).    It was admitted without objection.   Appellant

also made multiple attempts to get evidence of the

appeal in the record during trial.      Trial Counsel


                           24
asked a witness if she was aware that Appellant had

filed a notice of appeal of the commitment order.

The   trial    judge    granted      the   State’s     relevancy

objection.    (R.R. Vol. 4, p. 68).          Again, Appellant

filed a motion to quash the indictment and had a pre-

trial hearing on the motion which was based on the

appeal issue.       The trial judge denied the motion.

(R.R. Vol. 2, p.1-10).              After the State rested,

Appellant made a motion for directed verdict again

arguing that the commitment order was on appeal and

that the trial court had no jurisdiction. (R.R. Vol.

5, p. 8-10).           The commitment order was still on

appeal at the time of this trial and was, therefore,

not a final order.        Therefore, the trial court had

no jurisdiction over the case, and the conviction

should be reversed.

                 ARGUMENT QUESTION NUMBER THREE

      Question     Number      Three       Restated:     In

addressing Appellant’s evidentiary sufficiency

challenge     through    his   motion      for   directed


                               25
verdict on the basis that there was no final

civil commitment order, the Fort Worth Court of

Appeals erred by deciding that “the issuance of

mandate     of   that     order    was    not     a    necessary

precondition       for imposing criminal sanctions

for its disobedience.”

       The trial court erred by denying Appellant’s

motion for directed verdict.                (R.R. Vol. 5, p. 8-

10).    At the time of the hearing on the motion, the

commitment order was not final because it was on

appeal.          Therefore,       the     trial       court    had    no

jurisdiction       over    the    case,    and        the   motion   for

directed verdict should have been granted.                           The

analysis is the same as in Question Two, and will

not    be   repeated      here.          However,       even   without

considering       the     jurisdictional          argument,          the

language of the commitment statute indicates that

criminal    penalties       are    not    warranted         unless   the

person is adjudicated and civilly commited as a




                                  26
sexually    violent    predator   prior   to   his   or   her

violations of the commitment order.

      It should be noted that John C. Moncure, with

the State Counsel for Offenders, filed an Amicus

Curiae Brief in this Cause.       Appellate Counsel is in

agreement with the Amicus Curiae Brief and hereby

adopts the analysis. Out of an abundance of caution,

the remainder of this argument for Question Three is

taken from the Amicus Curiae Brief and is included

herein.

      A person is not adjudicated until the appeal on

the matter is completed and mandate has issued.

The criminal penalty provision for imprisoning a

civilly committed person under Chapter 841 is set

out    in   Section   841.085(a),   and   it   defines    the

elements of this criminal offense as:

      A person commits an offense if, after
      having   been   adjudicated   and civilly
      committed as a sexually violent predator
      under this chapter, the person violates a
      civil commitment requirement imposed under
      Section 841.082.

As originally enacted in 1999, this criminal
                             27
penalty provision provided that a “person commits

an offense if the person violates a requirement

imposed under Section 841.082.”            See Acts     1999.

      The Fort Worth Court of Appeals decided that

“the issuance of mandate of [Mr. Stevenson’s civil

commitment] order was not a necessary precondition

for     imposing     criminal       sanctions        for      its

disobedience”      (i.e.,     he    could     be     criminally

prosecuted   for    violating      this     order    before   it

became final) because this order was “effective

immediately on entry of the order” which could not

be superseded by the filing of a notice of appeal

or by any provision in the rules of civil procedure.

See Stevenson, 2015 Tex. App. LEXIS 387 at *4. It

is    true that a person can be civilly committed

immediately upon entry of the               civil commitment

order    under     Section    841.081(a)      and     thus     be

required   to    abide   by   all    the     rules    of civil

commitment even before his appeal from that order

becomes final and while his appeal from that order


                              28
is   still     pending.      However,    just   because     a

commitment     order   is   effective    immediately     upon

entry, it does not mean that criminal penalties can

be   imposed    for    failure    to   follow   the    order.

According to the statute, criminal penalties can be

imposed only after t h e person has the status of an

“adjudicated” sexually violent predator.              And that

can happen only when the order becomes final.

     The resolution of this question turns on a

construction of the term “adjudicated” in Section

841.085(a), as it is clear from the plain language

of Section 841.085(a,) that a person cannot be

criminally prosecuted for violating a civil

commitment requirement unless he has the status of

an “adjudicated” sexually violent predator when

this violation occurs.        Any doubt about the

construction of the term “adjudicated” must be

resolved in Mr. Stevenson’s favor. See State v.

Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App.

2007) (Non-penal-code criminal statutes must be


                             29
strictly construed with any doubt resolved in the

accused’s favor).

    In construing the term “adjudicated,” it is not

dispositive   that   a   civil      commitment    order   is

“effective    immediately”        upon   its   entry   under

Section 841.081(a,) at which time the person is

considered to be civilly committed, as this only

satisfies Section 841.085(a)’s element that this

person had been “civilly committed as a sexually

violent predator.” This does not mean that the

person also had the status of an “adjudicated”

sexually violent predator. Also, by using the term

“adjudicated,” the Legislature had to have intended

for the person’s status to be something more than

“civilly committed as a sexually violent predator.”

The term “adjudicated” has a very specific meaning,

and it seems obvious that the legislature would be

cognizant of that fact.      See     Boykin v. State, 818

S.W.2d 782, 785-86 (Tex. Crim. App. 1991). It seems

apparent that the Legislature m e a n t for the term


                             30
“adjudicated” to include an appeal and issuance of

the appellate court’s mandate. 76th Leg., ch. 1188,

§ 4.01. This criminal penalty provision was amended

to its current        version in 2007.              See Acts 2007,

80th    Leg., ch. 1219, § 8.            See id.

       Other provisions in Chapter 841 also support

this    construction         of    “adjudicated.”               In

describing the Chapter 841 adjudicatory process

in     Section     841.062    entitled       “DETERMINATION     OF

PREDATOR STATUS,”            the Legislature provided in

Section 841.062(a) that the factfinder must make

this determination           beyond      a   reasonable     doubt.

The     Legislature       also         provided        in Section

841.062(a) that a person “is entitled to appeal the

determination [of predator status].”                   This shows

that the Legislature intended that an appeal be

part of the adjudicatory process under Chapter 841

for determining a person’s predator status.

       This   is   also   consistent         with    this   Court’s

decision in Ex Parte Jimenez, 361 S.W.3d 679 (Tex.

                                  31
Crim. App. 2012). The issue in Jimenez was whether

the    defendant’s       felon-in-possession-of-a-firearm

conviction was “void” because the defendant later

successfully          challenged        in     a     habeas     corpus

proceeding his predicate felony conviction (rape of

a     child)    that     established          his     status        as   a

“convicted” felon in the firearm case. See Jimenez,

361    S.W.3d    at    681-82.     This       Court    decided       that

Jimenez’                 felon-in-possession-of-a-firearm

conviction could not be “void” because he had the

status of a “convicted” felon when he possessed the

firearm. See Jimenez, 361 S.W.3d at 682-684.

      It   is    likely    that        this    Court        would    have

decided this question differently in Jimenez had

the    State    prosecuted       Jimenez       on     the    felon-in-

possession-of-a-firearm            charge           while     Jimenez’

appeal from the judgment in the predicate felony

(rape of       a child) was still pending, since this

would prevent Jimenez from having the status of a

“convicted” felon when he possessed the firearm.


                                  32
See Fletcher v. State, 214 S.W.3d 5, 6 (Tex. Crim.

App. 2007) (i.e. A “conviction” from which an appeal

has     been     taken     is   not    considered       a   “final

conviction” until the           “conviction” is affirmed by

the appellate court, and that court’s mandate of

affirmance       becomes    final).     Similarly,      a   person

should not be considered to have the status of an

“adjudicated” sexually violent



predator while his civil commitment appeal is still

pending.

      Michael Wayne Bohannan’s case should also be

instructive in construing the term “adjudicated.”

Mr.   Bohannan      was    convicted     of    one   count      of

violating Section 841.085(a) and was assessed an

enhanced       sentence    of   life   in     prison,   based   on

multiple violations of a civil-commitment order

that the Beaumont Court               reversed in Bohannan’s

appeal in the civil commitment case, because the

trial    court excluded the testimony of Bohannan’s


                                 33
only expert witness. (Bohannan’s civil commitment

case turned almost exclusively on the testimony of

two of the S tate’s expert witnesses.) See Bohannan

v. State, 2014 Tex. App. LEXIS 11825 at **3-6 (Tex.

App.—Beaumont, delivered October 29, 2014, no pet.)

(mem. opinion). All of these violations occurred

during the pendency of Bohannan’s appeal in the

civil   commitment       case,    and    some    of   them   even

occurred after the Beaumont              Court decided that

Bohannan’s judgment in the civil commitment case

should be reversed. See Bohannan, 2014 Tex. App.

LEXIS 11825 at *4 (The Beaumont Court decided that

Bohannan’s    civil commitment           judgment     should   be

reversed     on    July     22,       2010,     and   Bohannan’s

indictment    in    the    criminal       case    alleged    that

Bohannan violated this civil commitment judgment on

numerous occasions between February 14, 2009 and

April 24, 2011).          The State did not re-prosecute

Bohannan     in    the    civil       commitment      case   upon

issuance of the Beaumont Court’s mandate in that


                                 34
case,    apparently         because       of    the      life   sentence

Bohannan received in the criminal case.

       The    Legislature        could         not      have    possibly

intended for a person like Bohannan to be sent to

prison       for     life    for        violating        a     non-final,

reversed-on-appeal civil commitment order that no

one can be sure should have ever been entered in

the first place, because the trial court prevented

this    person       from   presenting         a       defense when it

excluded his only expert and because the State

decided not to re-prosecute the civil commitment

case    once       the   State   obtained          a    lengthy    prison

sentence in the criminal case. Construing the term

“adjudicated” in Section 841.085(a) to include an

appeal       and    issuance       of    the       appellate      court’s

mandate would prevent this from happening in the

future.

       The Beaumont Court recently handed down an

opinion that could be read                     as deciding that a

person’s       status       as   an      “adjudicated”          sexually


                                    35
violent    predator   when   he    violated   the   civil

commitment requirements is a defensive issue and

not   an element of the offense that the State is

required to prove under Section          841.085(a). See

Smith v. State, 2014 Tex. App. LEXIS 10117 (Tex.

App.—Beaumont, delivered September 10, 2014, no

pet.) (mem. opinion). According to the Beaumont

Court’s opinion in Smith, Smith filed a motion to

quash his indictment, claiming (as Mr. Stevenson

does in this case) that he could not be criminally

prosecuted for violating a civil commitment order

that was non-final and still on appeal. See Smith,

2014 Tex. App. LEXIS 10117 at *3. The Beaumont

Court, however, reframed this issue and decided,

“Smith’s   argument   that    he   was   not required to

comply with an order that had been appealed is a

defensive theory that is not relevant to whether

the indictment should have been quashed.”            See

Austin v. State, No. PD-1431-14 (Tex.Crim.App.,

delivered March 18, 2015) (per curiam opinion not


                             36
designated       for    publication)       (court     of    appeals

“erroneously re-framed the issue raised” when it

should     have    addressed    the        argument     that      was

actually raised).

    The Beaumont Court’s opinion in Smith should

have no precedential value in deciding the issue

presented here, as this decision did not address

this issue. With respect to the issue that it did

address, no claim has been made in this case that

Mr. Stevenson “was not required to comply with an

order that had been appealed.” The claim is that he

cannot be criminally prosecuted for violating the

order. To the extent that the Beaumont Court’s

decision in Smith could be read to suggest that the

issue presented here is a defensive issue, this

decision    is    contrary     to   well-settled           law.   See

generally Giesberg v. State, 984 S.W.2d 245 (Tex.

Crim. App. 1998) (The case discusses what does and

does not constitute a defensive issue).

    Without       any    analysis     or     citation       to    any

                               37
authority,     the   Beaumont       Court   also   stated    in

Bohannan’s     appeal    in    his    criminal     case,    for

violating the civil commitment order, that Bohannan

violated this civil commitment order “at a time

when Bohannan had the status of a sexually violent

predator.”    See Bohannan, 2014 Tex.App. LEXIS 11825

at *6. This statement, however, is dicta and of no

precedential    value,    as    no    issue   of   Bohannan’s

status as a sexually violent predator (much less

an “adjudicated” sexually violent predator) was

ever raised in that case, and this statement was

not necessary to the decision in that case.

               ARGUMENT QUESTION NUMBER FOUR

    Question Number Four Restated:            The trial court

erred by denying Appellant’s motion to quash the

indictment.    (R.R. Vol. 2, p.4-11).

    At the time of the hearing on the motion, the

commitment order was not final because it was on

appeal.   The analysis in this issue is the same as




                               38
Questions Number Two and Three.        Therefore, the

argument will not be repeated.

             ARGUMENT QUESTION NUMBER FIVE

    Question Number Five Restated:     The trial court

erred by sustaining the State’s relevance motion to

Appellant’s proffered evidence that the commitment

order was on appeal.    (R.R. Vol. 4, p. 68).

    At the time of the trial, the commitment order

was not final because it was on appeal.    The analysis

in this issue is the same as Questions Number Two

and Three.    Therefore, the argument will not be

repeated.

                        PRAYER

    WHEREFORE,   PREMISES    CONSIDERED,   Eric   Dwayne

Stevenson, Appellant, prays that the convictions be

reversed and for whatever other relief he has shown

himself entitled.

                       Respectfully Submitted,

                       s/Scott Walker
                       _________________________
                       By: Scott Walker, Attorney
                       222 W. Exchange Avenue

                            39
                     Fort Worth, Texas 76063
                     (817) 478-9999
                     (817) 977-0163
                     scott@lawyerwalker.com




              CERTIFICATE OF SERVICE

    A copy of this brief was delivered to the Office
of the Criminal District Attorney, Tarrant County
Courthouse, 401 W. Belknap, Fort Worth, Texas, and
to the State Prosecuting Attorney, P.O Box 12405,
Austin, Texas 78711 by first class mail on the 23rd
day of June, 2015.

                          s/Scott Walker
                          ______________________
                          Scott Walker

             CERTIFICATE OF COMPLIANCE

    I hereby certify that I have complied with the
font and word count requirements under Texas law
pertaining to the filing of documents in appellate
matters. This document contains 6,235 words.

                          s/Scott Walker
                          ______________________
                          Scott Walker




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