                                                                                    PD-0122-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 8/25/2015 10:29:42 AM
                                                                   Accepted 8/25/2015 11:17:38 AM
August 25, 2015                                                                     ABEL ACOSTA
                       IN THE COURT OF CRIMINAL APPEALS                                     CLERK
                                   OF TEXAS

    ERIC DWAYNE STEVENSON,             §
         APPELLANT                     §
                                       §
    v.                                 §      NO. PD-0122-15
                                       §
    THE STATE OF TEXAS,                §
        APPELLEE                       §

         ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02-13-
    00537-CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS
    DISTRICT OF TEXAS.

                                     §§§

                  STATE'S POST-SUBMISSION SUPPLEMENTAL BRIEF

                                     §§§

                                    SHAREN WILSON
                                    Criminal District Attorney
                                    Tarrant County, Texas

                                    DEBRA WINDSOR
                                    Chief, Post-Conviction

                                    STEVEN W. CONDER, Assistant
                                    Criminal District Attorney
                                    401 W. Belknap
                                    Fort Worth, Texas 76196-0201
                                    (817) 884-1687
                                    FAX (817) 884-1672
                                    State Bar No. 04656510
                                    COAAppellatealerts@tarrantcountytx.gov

                                    LISA MCMINN
                                    State Prosecuting Attorney
                                    Austin, Texas
                                 TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................... ii

STATEMENT OF THE CASE ..................................................................... 1

STATEMENT OF FACTS .......................................................................... 2

STATE’S SUPPLEMENTAL RESPONSE ................................................... 3

CONCLUSION AND PRAYER ................................................................... 6

CERTIFICATE OF SERVICE ..................................................................... 7

CERTIFICATE OF COMPLIANCE .............................................................. 8




                                               i
                                  INDEX OF AUTHORITIES

CASES                                                                                          PAGES

Ex parte Webb,
 270 S.W.3d 108 (Tex. Crim. App. 2008) .................................................. 5

In re Commitment of Stevenson
  2013 WL 5302591 (Tex. App. - Beaumont September 19, 2013) ............. 2

Stevenson v. State,
  2015 WL 221816 (Tex. App. – Fort Worth Jan. 15, 2015) ........................ 2


STATUTES

Tex. Health & Safety Code Ann. § 841.082 ........................................ 4, 5, 6

Tex. Health & Safety Code Ann. § 841.085(a) ........................................ 4, 6


RULES

Tex. R. App. P. 9.4(e) ................................................................................. 8

Tex. R. App. P. 9.4(i) .................................................................................. 8

Tex. R. App. P. 18.1(a)(2) ........................................................................... 5




                                                   ii
                   IN THE COURT OF CRIMINAL APPEALS
                               OF TEXAS

ERIC DWAYNE STEVENSON,                 §
     APPELLANT                         §
                                       §
V.                                     §    NO. PD-0122-15
                                       §
THE STATE OF TEXAS,                    §
    APPELLEE                           §

     ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02-13-
00537-CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS
DISTRICT OF TEXAS.

TO THE HONORABLE COURT OF APPEALS:


                         STATEMENT OF THE CASE

         The appellant was convicted of three counts of violating the civil

commitment requirements for sexually violent predators by

     •     Engaging in contact with family members, casual relations or
           friends who had not been approved by his program specialist or
           treatment advisor;

     •     Failing to abide with his GPS tracking requirements by
           separating from his miniature tracking device; and

     •     Failing to make progress in his sexually violent predator
           treatment program resulting in his discharge.

(C.R. I:104-11). The jury found the repeat offender notice to be true, and

sentenced him to seventeen years’ confinement and a $5000 fine for each


                                      1
count. (C.R. I:116-18).

      The Court of Appeals for the Second District of Texas overruled the

appellant’s five points of error and affirmed his conviction. Stevenson v.

State, 2015 WL 221816 at *1-2 (Tex. App. – Fort Worth January 15, 2015)

(not designated for publication).

      This Court granted the appellant’s petition for discretionary review on

April 29, 2015. The State filed its brief on July 16, 2015. This cause was

submitted     on    August     5,    2015.     See     Stevenson      v.       State

(http://www.search.txcourts.gov/Case.aspx?cn=PD-0122-15&coa=coscca).



                           STATEMENT OF FACTS

      On September 14, 2011, the appellant was found by a jury to be a

sexually violent predator. (R.R. IV:38, 42, VIII:State’s Exhibit #2). The trial

court entered a final judgment and order of civil commitment for outpatient

treatment. (R.R. IV:38, 42, VIII:State’s Exhibits #1 & 2). 1 The appellant

began his civil commitment on December 27, 2011, when he was assigned

to a transitional living center in Fort Worth. (R.R. IV:37, 55).


1     The Court of Appeals for the Ninth District of Texas affirmed the
      appellant’s final judgment and civil commitment order on September 19,
      2013. See In re Commitment of Stevenson, 2013 WL 5302591 (Tex. App.
      – Beaumont September 19, 2013) (not designated for publication).

                                        2
      On February 26, 2012, the appellant removed his tracking device and

left the transition center without permission. (R.R. IV:45-46, 47-48). He

was located his girlfriend’s apartment. (R.R. IV:94-95). The appellant had

not been approved to remove his GPS device or have contact with his

girlfriend. (R.R. IV:49-51, IV:150-151).



                 STATE'S SUPPLEMENTAL RESPONSE

      The appellant’s conviction should be reformed to reflect a single

count of violating his civil commitment requirements due to recent

legislative changes to the civil commitment statutes.

      In the 2015 session, the Texas Legislature revised the statutory

language for criminally prosecuting sexually violent predators for violating

their civil commitment requirements as follows:

   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(a)(1), (2), (4), or (5).

See 2015 Tex. Sess. Law Serv. Ch. 845 (S.B. 746) §19 (to be codified at

Tex. Health & Safety Code Ann. § 841.085(a)).           The Legislature also

revised the civil commitment requirements as follows:

   Before entering an order directing a person's civil commitment, the

                                      3
   judge shall impose on the person requirements necessary to ensure
   the person's compliance with treatment and supervision and to
   protect the community. The requirements shall include:

       (1) requiring the person to reside where instructed by the office;

       (2) prohibiting the person's contact with a victim of the person;

       (3) requiring the person's participation in and compliance with the
       sex offender treatment provided by the office and compliance with
       all written requirements imposed by the office;

       (4) requiring the person to:

          (A) submit to tracking under a particular type of tracking
          service and to any other appropriate supervision; and

          (B) refrain from tampering with, altering, modifying, obstructing,
          or manipulating the tracking equipment; and

       (5)   prohibiting the person leaving the state without prior
       authorization from the office.

See 2015 Tex. Sess. Law Serv. Ch. 845 (S.B. 746) §13 (to be codified at

Tex. Health & Safety Code Ann. § 841.082(a)). These statutory changes

eliminated the criminal prosecution of civilly committed sexually violent

predators for:

   •      Possessing or using alcohol, inhalants or a controlled
          substance;

   •      Failing to participate or comply with the sex offender treatment
          program;

   •      Failing to comply with written requirements imposed by the

                                       4
            office or the case manager;

    •       Changing their residence without authorization from the judge;
            and

    •       Violating any other requirement determined necessary by the
            judge.

See former Tex. Health & Safety Code Ann. § 841.082. These statutory

changes apply to the appellant because his conviction was not final on

June 17, 2015. 2 See 2015 Tex. Sess. Law Serv. Ch. 845 (S.B. 746) §§41

& 44.

         The 2015 statutory changes do not completely invalidate the

appellant’s conviction because one of his violations remains a valid basis

for criminal prosecution.         The appellant was convicted of violating the

requirements of his civil commitment by:

    1.      Engaging in contact with family members, casual relations or
            friends who had not been approved by his program specialist or
            treatment advisor;

    2.      Failing to abide with his GPS tracking requirements by
            separating from his miniature tracking device; and

    3.      Failing to make progress in his sexually violent predator

2        A conviction in which an appeal has been taken is not final until the Court
         of Appeals has issued its mandate to the trial court. Ex parte Webb, 270
         S.W.3d 108, 111 (Tex. Crim. App. 2008). Mandate does not issue before
         the Court of Criminal Appeals rules on a petition for discretionary review.
         Tex. R. App. P. 18.1(a)(2).


                                             5
         treatment program resulting in his discharge.

(C.R. I:104-11).

      The State acknowledges that violations #1 and 3 are no longer valid

bases for a criminal prosecution; however, violation #2 (tampering with,

obstructing or manipulating his tracking equipment by separating from it;

thereby, removing himself from any tracking) remains a valid basis for

criminal prosecution. See Tex. Health & Safety Code Ann. §§ 841.082(a),

841.085(a). Thus, the appellant’s convictions should be reformed to reflect

this single criminal violation of his civil commitment requirements.3



                         CONCLUSION AND PRAYER

      The appellant’s convictions for violating the civil commitment

requirements for sexually violent predators should be reformed to reflect a

single criminal violation.


                                       Respectfully submitted,

                                       SHAREN WILSON
                                       Criminal District Attorney

3     Reformation of the appellant’s convictions to reflect a single criminal
      violation of his civil commitment requirements renders moot his ground for
      review that his multiple convictions violate his protection against double
      jeopardy.


                                          6
                                   Tarrant County, Texas

                                   DEBRA WINDSOR
                                   Chief, Post-Conviction

                                   /s/ Steven W. Conder
                                   STEVEN W. CONDER, Assistant
                                   Criminal District Attorney
                                   401 W. Belknap
                                   Fort Worth, Texas 76196-0201
                                   (817) 884-1687
                                   FAX (817) 884-1672
                                   State Bar No. 04656510
                                   COAAppellatealerts@tarrantcountytx.gov

                                   LISA MCMINN
                                   State Prosecuting Attorney
                                   Austin, Texas


                       CERTIFICATE OF SERVICE

     True copies of the State's post-submission supplemental brief have

been electronically served on opposing counsel, the Hon. Scott Walker

(scott@lawyerwalker.com), 222 W. Exchange Avenue, Fort Worth, Texas

76164; and the State Prosecuting Attorney, the Hon. Lisa McMinn

(information@spa.texas.gov), P.O. Box 13046, Austin, Texas 78711-3046,

on this, the 25th day of August, 2015.


                                   /s/ Steven W. Conder
                                   STEVEN W. CONDER


                                     7
                    CERTIFICATE OF COMPLIANCE

     This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e). It has been prepared in a conventional typeface no smaller

than 14-point for text and 12-point for footnotes. This document complies

with the word-count limitations of Tex. R. App. P. 9.4(i).     It contains

approximately 827 words, excluding those parts exempted, as computed by

Microsoft Office Word 2010.

                                  /s/ Steven W. Conder
                                  STEVEN W. CONDER


c18.stevenson eric dwayne.br/cca/supplemental




                                    8
