                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00487-CR
                           ____________________

                     GARY EDWARD VINES, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 14-01-00351-CR


                         MEMORANDUM OPINION

      Gary Edward Vines was found to be a sexually violent predator, and on April

25, 2012, a Final Judgment and Order of Civil Commitment was entered by the 435th

Judicial District Court for Montgomery County, Texas, in Cause Number 11-11-

12117-CV, In Re: The Commitment of Gary Edward Vines. Vines was then assigned

to a halfway house and subject to the Order of Civil Commitment. Vines was then

charged with violating the terms of his Order of Civil Commitment. A jury convicted

Vines for the offense of violating the terms of his civil commitment as a sexually
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violent predator, a third-degree felony. See Act of May 27, 2007, 80th Leg., R.S.,

Ch. 1219, § 8, 2007 Tex. Gen. Laws 4109, 4110 (amended 2015) (current version at

Tex. Health & Safety Code Ann. § 841.085 (West Supp. 2017). Vines was sentenced

to life in prison.

       On appeal in this Court, Vines’s appellate counsel did not argue that the

conduct for which Vines had been convicted had been decriminalized.1 We affirmed

the trial court’s judgment of conviction. See Vines v. State, No. 09-14-00487-CR,

2016 Tex. App. LEXIS 2462 (Tex. App.—Beaumont Mar. 9, 2016) (mem. op., not




       1
          Vines later filed a pro se letter and another Texas inmate filed an amicus
brief in his appeal to this Court, wherein an argument was made that section 841.085
as revised decriminalized the conduct for which Vines had been convicted. We
expressly did not address Vines’s pro se argument or the amicus argument because
Vines was not entitled to hybrid representation and an amicus brief may not raise an
issue not raised by the parties. See Vines v. State, No. 09-14-00487-CR, 2016 Tex.
App. LEXIS 2462, at **2-3 n.1, 21 (Tex. App.—Beaumont Mar. 9, 2016) (mem.
op., not designated for publication) (citing Marshall v. State, 210 S.W.3d 618, 620
n.1 (Tex. Crim. App. 2006); Garcia-Melendez v. Ashcroft, 351 F.3d 657, 662 n.2
(5th Cir. 2003)), rev’d, No. PD-499-16, 2018 Tex. Crim. App. Unpub. LEXIS 198
(Tex. Crim. App. Feb. 7, 2018) (not designated for publication). Nevertheless, Vines
raised the issue in his petition for discretionary review filed in the Court of Criminal
Appeals. The Court of Criminal Appeals has held that a defendant may complain for
the first time in a petition for discretionary review that a statute has been held to be
void, and that such a complaint should be addressed in the interest of judicial
economy. See Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015).
Although the statute in question has not been held to be void, the amendment and
decriminalization of certain violations has been held to be retroactive and the Texas
Court of Criminal Appeals granted Vines relief and remanded the case to this Court.
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designated for publication), rev’d, No. PD-499-16, 2018 Tex. Crim. App. Unpub.

LEXIS 198 (Tex. Crim. App. Feb. 7, 2018) (not designated for publication).

      Vines filed a petition for discretionary review with the Court of Criminal

Appeals arguing that the Legislature had decriminalized the conduct for which he

had been convicted. The Court of Criminal Appeals granted the petition for

discretionary review, and applying its holding in Vandyke v. State, No. PD-0283-16,

2017 Tex. Crim. App. LEXIS 1311 (Tex. Crim. App. Dec. 20, 2017), vacated our

prior judgment and remanded the case to this Court. 2018 Tex. Crim. App. Unpub.

LEXIS 198, at *2.

      Effective June 17, 2015, while Vines’s appeal to this Court was pending,

Senate Bill 746 amended Chapter 841 of the Texas Health and Safety Code in several

respects. See Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law

Serv. 2700, 2700-12. The savings clause to S.B. 746 provided that the change was

applicable to any conviction not yet final. Id. at 2711. A judgment of conviction is

not final while the conviction is on appeal. See Vandyke, 2017 Tex. Crim. App.

LEXIS 1311, at **10-11 (citing Lundgren v. State, 434 S.W.3d 594, 598 (Tex. Crim.

App. 2014)).

      Vines was initially charged with violating conditions of his civil commitment

authorized by both subsections (a)(3) and (a)(4) of section 841.082 of the Health and

                                         3
Safety Code as amended and renumbered. See Tex. Health & Safety Code Ann.

§ 841.082(a)(3), (a)(4) (West Supp. 2017). However, the State abandoned certain

allegations in the indictment during trial, and the abandoned charges were not

included in the trial court’s jury charge. See Vines, 2016 Tex. App. LEXIS 2462, at

*7 n.2. After remand to this Court, the State filed a Letter Brief stating that it did not

oppose reversal of the trial court’s judgment, and conceding that Vines was

“convicted of violating a condition imposed under subsection (a)(3)—conduct which

the Legislature retroactively decriminalized[].”2

      At the time of Vines’s indictment and trial, section 841.085(a) criminalized a

violation of subsection (a)(4) of section 841.082. See Vandyke, 2017 Tex. Crim.

App. LEXIS 1311, at *9. When the Legislature amended section 841.082, it re-

designated former subsection 841.082(a)(4) as 841.082(a)(3). Id. Under the current

version of section 841.085(a), a failure to participate in and comply with the

treatment program provided by the Texas Civil Commitment Office is a violation of

subsection 841.082(a)(3), but it no longer subjects the violator to criminal

prosecution. Id. Because of these statutory changes, the conduct for which Vines

was convicted is no longer a crime. See id. at *33.



      2
         The allegations in the indictment for which Vines was prosecuted are
detailed in our prior opinion. See Vines, 2016 Tex. App. LEXIS 2462, at **6-7.
                                           4
      Accordingly, we have no choice but to reverse Appellant’s criminal

conviction and render judgment dismissing the indictment. See Tex. R. App. P.

43.2(e) (permitting courts of appeals to “vacate the trial court’s judgment and

dismiss the case”), 43.6 (“The court of appeals may make any other appropriate order

that the law and the nature of the case require.”); Vandyke, 2017 Tex. Crim. App.

LEXIS 1311, at *33; Williams v. State, Nos. 05-15-00336-CR & 05-15-00337-CR,

2016 Tex. App. LEXIS 3265, at *24 (Tex. App.—Dallas Mar. 30, 2016, no pet.)

(mem. op., not designated for publication); Mitchell v. State, 473 S.W.3d 503,

504-05, 517-18 (Tex. App.—El Paso 2015, no pet.); see also Posey v. State, 545

S.W.2d 162, 163 (Tex. Crim. App. 1977) (an indictment must be dismissed if the

facts alleged would not constitute a criminal offense).3




      3
         Appellant remains subject to the Texas Civil Commitment Office’s tiered
program of treatment and supervision. He will remain in the civil commitment
program until a court determines that he is no longer likely to engage in a predatory
act of sexual violence. The Texas Civil Commitment Office determines which tier
of the program, or what level of restrictions, Appellant will be placed in based on
his behavior and the violations which gave rise to his vacated conviction. See Tex.
Health & Safety Code Ann. § 841.081(a) (West 2017) (“The commitment order is
effective immediately on entry of the order, except that the treatment and supervision
begins on the person’s release from a secure correctional facility and continues until
the person’s behavioral abnormality has changed to the extent that the person is no
longer likely to engage in a predatory act of sexual violence.”); Vandyke v. State,
No. PD-0283-16, 2017 Tex. Crim. App. LEXIS 1311, at *33 n.121 (Tex. Crim. App.
Dec. 20, 2017).
                                          5
      VACATED AND DISMISSED.


                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on March 29, 2018
Opinion Delivered April 11, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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