               In the
          Court of Appeals
  Second Appellate District of Texas
           at Fort Worth
        ___________________________
             No. 02-17-00150-CV
        ___________________________

IN RE: THE COMMITMENT OF MAURICE BLUITT



    On Appeal from the 372nd District Court
             Tarrant County, Texas
       Trial Court No. D372-S-13193-16


   Before Sudderth, C.J.; Meier and Birdwell, JJ.
       Opinion by Chief Justice Sudderth
               OPINION ON EN BANC RECONSIDERATION

      Appellee the State of Texas filed a motion for en banc reconsideration of our

July 12, 2018 opinion and judgment. After considering the motion, we withdraw our

prior opinion and substitute the following in its place. We dismiss the motion for

en banc reconsideration as moot. See, e.g., Ferrant v. Graham Assocs., Inc., No. 02-12-

00190-CV, 2014 WL 1875825, at *1 (Tex. App.—Fort Worth May 8, 2014, no pet.)

(mem. op. on reh’g). Aside from portions added to address the State’s arguments for

reconsideration, our opinion otherwise remains unchanged.

      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.



                                           2
      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.

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


                                          3
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 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



                                           4
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 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

                                             5
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 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

                                            6
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).

      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

                                             7
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 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



                                             8
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 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

                                            9
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 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

                                           10
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 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


                                             11
             (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 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



                                           12
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.

       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

       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).


                                            13
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 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).

                                             14
       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., 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.

       In its motion for en banc reconsideration, the State conflates sexually-violent-

predator civil commitments with mental-health civil commitments.              Despite the

complete absence of any evidence that Appellant lacked the capacity to attend his

own trial, the State argues that sex offenders should not have the right to be

                                            15
personally present at their initial civil commitment trial because they have not been

treated yet, stating, “These are not necessarily people that can sit through a jury trial

without being physically or mentally harmed,” and that they can be present at a

biennial review hearing because, by then, they have “received years of treatment.” 2

We recognize that mental-health commitments and sexually-violent-predator

commitments are in some ways analogous, but we disagree with the State’s

implication that they are the same.

      Mental-health commitments are appropriate where an individual suffers from a

mental illness and, as a result, (1) is likely to cause serious harm to himself or others,

or (2) is suffering from “severe and abnormal mental, emotional, or physical distress”;

is experiencing “substantial mental or physical deterioration” of the individual’s

“ability to function independently, which is exhibited by the proposed patient’s

inability . . . to provide for the proposed patient’s basic needs, including food,

clothing, health, or safety”; and is unable to make a rational and informed decision as

to whether or not to submit to treatment.          Tex. Health & Safety Code Ann.

§ 574.034(a) (West Supp. 2017), .035(a) (West 2017). The provision for the mental-

health commitment of an individual suffering from a mental illness that renders him a

risk of serious harm toward himself or others is similar to the commitment of a

      2
        The State argued that, by the time of a court-ordered biennial review hearing,
“the person has received years of treatment and a professional has found that he no
longer has a behavioral abnormality that endangers society. Now the person is
entitled to be present.”


                                           16
sexually violent predator—an individual whose behavioral abnormality renders them

prone to engaging in repeated predatory acts of sexual violence. But the State’s

argument for reconsideration asks us to assume that all accused sexually violent

predators are mentally ill to the extent that they are suffering from “severe and

abnormal mental, emotional, or physical distress,” or are unable to function

independently or make rational and informed decisions regarding their treatment

options. In fact, such an assumption would ignore a key difference between sexually-

violent-predator commitments and mental-health commitments: a person can only be

deemed a sexually violent predator if he has been criminally convicted of at least one

sexually violent offense. Id. § 841.003. To be convicted of a sexually violent offense,

the person was presumed mentally competent and has already participated in a trial

without the benefit of treatment. See Tex. Code Crim. Proc. Ann. art. 46B.003 (West

2018) (providing that a person is incompetent to stand trial if he lacks the ability to

consult with his lawyer or lacks a rational and factual understanding of the

proceedings against him); cf. id. art. 46C.155 (West 2018) (providing that a defendant

found not guilty by reason of insanity is considered to be acquitted). The State’s

argument ignores this important difference between mental-health commitments and

sexually-violent-predator commitments and asks us to presume that the person, while

competent to stand trial in the underlying criminal proceeding, subsequently became

incompetent during his stay in prison.3 We decline to do so.

      3
       This is not to say that a potential sexually violent predator could not also be

                                          17
       In addition, at oral argument in this case, the State asserted that Appellant

waived any right to be physically present at his commitment trial by committing a

crime in the state of Colorado which resulted in his removal to Colorado by TDCJ.

The State did not provide briefing or otherwise provide support for this proposition

and we can find nothing in the law in general or chapter 841 in particular that

supports this theory of waiver. We reject this argument.

       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. 4

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

deemed mentally ill such that a mental-health commitment is warranted simply
because the sexually violent predator was deemed competent to stand trial and be
convicted of a sexual offense. But there is no support for the State’s proposition that
all sexually violent predators should be so presumed and therefore not entitled to
attend their civil commitment trial.
       4
         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).


                                          18
presenting the case to this court. Tex. R. App. P. 44.1(a); Romero v. KPH 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

                                           19
the defendant’s decision not to testify or his 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.”




                                           20
      • “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].”

      • 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,



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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 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.



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       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 (Tex. 2003) (noting the “familiar

principle that the jury is the sole judge of the credibility of witnesses”). 5

       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



       5
        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.


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of that waiver, see Tex. R. App. P. 43.2(d), or if a continuance should be granted on

any other grounds.

                                      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

Delivered: September 27, 2018




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