           PD-0122-15
                                              February 4, 2015

           NO.   __________________

 TO THE COURT OF CRIMINAL APPEALS OF TEXAS



      Eric Dwayne Stevenson, Appellant
                     v.
        The State of Texas, Appellee



                 ***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                 ***************

         FROM THE COURT OF APPEALS

     SECOND APPELLATE DISTRICT OF TEXAS

              FORT WORTH, TEXAS

             NO.   02-13-00537-CR

               TARRANT COUNTY
           TRIAL COURT NO. 1272720




                                     R. Scott Walker
                                STATE BAR # 24004972
                              222 W. Exchange Avenue
                                Fort Worth, TX 76164
                                      (817) 478-9999
                            (817) 977-0163 FACSIMILE
                              Attorney for Appellant

        ORAL ARGUMENT NOT REQUESTED
                        1
                    TABLE OF CONTENTS
                                                 PAGE
TABLE OF CONTENTS    . . . . . . . . . . . . . . .    2
INDEX OF AUTHORITIES    . . . . . . . . . . . . . . 3
STATEMENT DECLINING ORAL ARGUMENT . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . . 6
QUESTIONS PRESENTED FOR REVIEW
    NUMBER ONE (The convictions
    on Count I, Count II, and Count III are for
    the same offense for double jeopardy
    purposes).
    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.
    NUMBER THREE:    The trial court erred
    by denying Appellant’s motion to quash the
    indictment.
    NUMBER FOUR: The trial court erred
    by denying Appellant’s motion for directed
    verdict.
    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). . . . . . . 6
PRAYER . . . . . . . . . . . . . . . . . . . . .17
CERTIFICATE OF SERVICE . . . . . . . . . . . .       18
CERTIFICATE OF COMPLIANCE . . . . . . . . . .        18




                            2
               INDEX OF AUTHORITIES

                       CASES



Ex Parte Manuel Cavazos,
    203 S.W.3d 333 (Tex.Crim.App. 2006). . .   8, 10

Duckett v. State,
    454 S.W.2d 755 (Tex.Crim.App. 1970) . . . . . 9

Gongora v. State,
    916 S.W.2d 570 (TexApp.—Houston 1st dist.
    1996, PDRR) . . . . . . . . . . . . . . . 7, 10

Gonzalez v. State,
    8 S.W.3d 640 (Tex.Crim.App. 2000). . . . . 8, 9

Holberg v. State,
    38 S.W.3d 137 (Tex.Crim.App. 1987) . . . . . 14

Jordan v. State,
    36 S.W.3d 871 (Tex.Crim.App. 2001) . . . . . 15

Lopez v. State,
    108 S.W.3d 293 (Tex.Crim.App. 2003) . . . 7, 10

Mobley v. State,
    2008 WL 4414254 (Tex.App.—Texarkana 2008,
    no pet.) . . . . . . . . . . . . . . . . . .    8

Rabb v. State,
    730 S.W.2d 751 (Tex.Crim.App. 1987) . . . .    14

Smith v. Doe,
    538 U.S. 84, 101, 123 S.Ct. 1140, 155
    L.Ed.2d 164 (2003) . . . . . . . . . . . . . 13

Tamez v. State,
    980 S.W. 2d 845 (Tex.Crim.App. 1998) . . 15, 16


                         3
State v. Baker,
    761 S.W.2d 465 (Tex.App.—Eastland, 1988,
    no pet.) . . . . . . . . . . . . . . . . . .     7

                     STATUTES


Tex.Health and Safety Code,
    §841.085 . . . . . . . . . . . . . . . . .     11

Tex. Rules of App. Proc.
    §25.2(g) . . . . . . . . . . . . . . . . 15, 16


         STATEMENT DECLINING ORAL ARGUMENT

    Oral argument of this case is not requested on

behalf of Appellant, and is hereby waived.




                         4
    All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
ERIC DWAYNE STEVENSON, Appellant-Applying for
Review
V.
THE STATE OF TEXAS, Appellee


                     ************
     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                     ************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:

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




                           5
    STATEMENT OF PROCEDURAL HISTORY OF THE CASE

    The Court of Appeals rendered its decision and

delivered its written non-published memorandum

opinion on January 15, 2015.   The deadline for

filing a Petition for Discretionary Review is

February 15, 2015.

            QUESTIONS PRESENTED FOR REVIEW

ONE: The convictions on Count I, Count II, and

Count III are for the same offense for double

jeopardy purposes.

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.

THREE:    The trial court erred by denying

Appellant’s motion to quash the indictment.

FOUR:     The trial court erred by denying

Appellant’s motion for directed verdict.

FIVE:     The trial court erred by sustaining the

State’s relevance objection to Appellant’s

proffered evidence that the commitment order was on

appeal.


                          6
                      ARGUMENT

           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.

    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 to

overrule Appellant’s first issue, saying 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
                          7
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. 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
                          8
    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 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



                         9
prosecution for an assaultive offense is each

complainant, as is cited below:

    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 jeapardy 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), Lopez v.

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

    ANALYSIS:      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

explore the allowable unit of prosecution in a

                            10
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).


Above-mentioned Section 841.082 provides a list of

seven requirements that must be included in the
                         11
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:   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

impose multiple felony punishments for what would

usually be very minor infractions of the rules.

Doing so would be like allowing multiple
                          12
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 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.

    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
                           13
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 QUESTIONS TWO THROUGH FIVE

    The Court of Appeals overruled issues two

through five by stateing that the statute that

criminalizes violations of a civil commitment order

does not require that the commitment order first be

final for appellate purposes before violations are

criminal.   This is true, but it is also true that

the statute does not say that the commitment order

need not be final for appellate purposes before

violations are criminal.    The statute is merely

silent as to this issue.    Therefore, it appears

prudent to look to criminal law in this regard

since this statute has criminal penalties.

Therefore, Appellant’s argument on appeal is more

persuasive than the appellate opinion.




                           14
    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 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).

    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).    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
                           15
enhancement conviction.    Tamez v. State, 980 S.W.

2d 845, 847 (Tex.Crim.App. 1998).    Likewise, in a

criminal prosecution for a 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).

    Analysis:       The trial court had no

jurisdiction in this case because the prior

jurisdictional judgment was on appeal and was,

therefore, not a final judgment.    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
                           16
criminal defendants are placed 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 analysis in Issues three through five is

the same as Issue Number Two.    Therefore, the

argument will not be repeated.



                      PRAYER

    WHEREFORE, PREMISES CONSIDERED, ERIC DWAYNE

STEVENSON, Appellant, prays that this Petition for

Discretionary Review be granted; that this case be

submitted to the Court; that the Court of Appeals’

decision be reversed and for such other relief for

which he shows himself entitled.
                          17
                     Respectfully Submitted,

                     /s/ R. Scott Walker
                     By: R. SCOTT WALKER
                     222 W. Exchange Ave.
                     Fort Worth, Texas 76164
                     (817) 478-9999
                     (817) 977-0163 Fax
                     Attorney for Appellant


              CERTIFICATE OF SERVICE
    A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 3rd day of February, 2015.

                              /s/ R. Scott Walker
                              R. SCOTT WALKER
             CERTIFICATE OF COMPLIANCE
    I certify that this document complies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 2839 words, and that the document is in 14
point type.

                              /s/ R. Scott Walker
                              R. SCOTT WALKER




                         18
APPENDIX




    19
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-13-00537-CR


Eric Dwayne Stevenson                     §    From Criminal District Court No. 3

                                          §    of Tarrant County (1272720D)

v.                                        §    January 15, 2015

                                          §    Opinion by Justice Dauphinot

The State of Texas                        §    (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS


                                       By __/s/ Lee Ann Dauphinot_____________
                                          Justice Lee Ann Dauphinot
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00537-CR


ERIC DWAYNE STEVENSON                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 1272720D

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      A jury convicted Appellant Eric Dwayne Stevenson of three counts of

violating civil commitment requirements for sexually violent predators 2 and, after

finding the allegations in the repeat offender notice true, assessed his


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. § 841.085(a)–(b) (West 2010).
punishment for each count at seventeen years’ confinement and a $5,000 fine.

The trial court sentenced him accordingly.

      Appellant brings five issues on appeal, contending that the trial court had

no jurisdiction because his appeal of the commitment order was pending, that the

three convictions violate double jeopardy protections, that the trial court erred by

denying his motion to quash the indictment and his motion for a directed verdict,

and that the trial court abused its discretion by excluding his evidence that the

commitment order was not final. Because the trial court had jurisdiction, double

jeopardy was not implicated, and the trial court did not reversibly err, we affirm

the trial court’s judgment.

Double Jeopardy

      In his first issue, Appellant argues that the convictions and sentences on

three counts of the indictment are repeated convictions and punishments for the

same offense for double jeopardy purposes. Section 841.085(a) of the health

and safety code provides that a person commits an offense if, after having been

adjudicated and civilly committed as a sexually violent predator, he violates a civil

commitment requirement imposed under Section 841.082(a). 3 Applying the test

and logic of Jones v. State, 4 the gravamen of the offense of violating civil




      3
       Id. § 841.085(a).
      4
       323 S.W.3d 885, 889 (Tex. Crim. App. 2010).



                                         2
commitment requirements for sexually violent predators appears to be breaking a

rule imposed not only by the committing court but also by the treatment provider. 5

      The Texas Supreme Court has held that the sexually violent predator

commitment statute is civil because the legislature intended it to be civil. 6 Yet

violations of the commitment obligations carry criminal sanctions. 7 Applying the

rule of Jones v. State, it appears that we are required to hold that each violation

of a rule, whether by a single or multiple acts, is a separate violation of Section

841.085(a), carrying criminal penalties for violation of the rules of the civil

commitment. 8 We are therefore compelled to overrule Appellant’s first issue.

Finality of Commitment Order

      In his second issue, Appellant contends that the trial court had no

jurisdiction over the criminal case because his appeal of the commitment order

was pending at the time of trial. In his third issue, he contends that the trial court

therefore erred by denying his motion to quash the indictment. In his fourth

issue, he challenges the trial court’s denial of his motion for directed verdict for



      5
      See id.; see also Tex. Health & Safety Code Ann. § 841.082(a) (West
Supp. 2014), § .085(a).
      6
      In re Commitment of Fisher, 164 S.W.3d 637, 639–40, 654 (Tex.), cert.
denied, 546 U.S. 938 (2005).
      7
       See Tex. Health & Safety Code Ann. § 841.085(a).
      8
       See id.; Jones, 323 S.W.3d at 889.



                                          3
the same reason. Appellant raises no other challenge in these issues to the

convicting court’s jurisdiction or to the indictment’s validity.

      The statute criminalizing violations of civil commitment requirements for

sexually violent predators does not require that the commitment order first be

final for appellate purposes before violations are criminal. 9 A “commitment order

is effective immediately on entry of the order.” 10 Further, in civil cases, the filing

of a notice of appeal does not automatically suspend enforcement of the

judgment. 11 Enforcement of the judgment proceeds unless the judgment is

superseded in accordance with Rule 24. 12 Consequently, Appellant was bound

by the requirements of the order of commitment regardless of the status of his

appeal of that order. 13 The convicting court had jurisdiction over the criminal

case. Additionally, for the reasons set out above, and because the indictment

was valid on its face, the trial court did not err in denying Appellant’s motion to

quash. We overrule Appellant’s second and third issues.

      9
       See Tex. Health & Safety Code Ann. § 841.085(a).
      10
          See id. § 841.081(a) (West 2010).
      11
          See Tex. R. App. P. 25.1(h).
      12
          See Tex. R. App. P. 24, 25.1(h).
      13
        See United States v. United Mine Workers of Am., 330 U.S. 258, 294, 67
S. Ct. 677, 696 (1947) (“Violations of an order are punishable as criminal
contempt even though the order is set aside on appeal . . . .”); In re Sheshtawy,
154 S.W.3d 114, 126 (Tex. 2004) (citing same and noting that relator remained
subject to further contempt proceedings for violating an order before its reversal).



                                             4
         In his fourth issue, Appellant challenges the denial of his directed verdict.

He moved for a directed verdict on the basis that there was no final order of

commitment because he had filed a notice of appeal and the appeal was still

pending. He does not otherwise challenge the sufficiency of the evidence to

support his convictions. The trial court admitted State’s Exhibits 1 and 2, certified

copies of the final judgment finding Appellant to be a sexually violent predator

and the commitment order. Again, the commitment order was effective when

issued, and the issuance of mandate of that order was not a necessary

precondition for imposing criminal sanctions for its disobedience. 14         The trial

court therefore did not err by denying Appellant’s motion. We overrule his fourth

issue.

Exclusion of Evidence

         In his fifth issue, Appellant argues that the trial court abused its discretion

by excluding on relevance grounds his proffered evidence that the commitment

order was not final because his appeal thereof was pending. Even if the trial

court abused its discretion by excluding the evidence, an issue we do not reach,

any such error would be harmless because the filing of a notice of appeal does

not affect the finality of judgment in a civil case and did not stay the




         14
          See Tex. Health & Safety Code Ann. § 841.085(a).



                                            5
enforcement of the commitment order in this case. 15 We overrule Appellant’s

fifth issue.

Conclusion

       Having overruled Appellant’s five issues on appeal, we affirm the trial

court’s judgment.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 15, 2015




       15
         See id. § 841.081(a); Tex. R. App. P. 24, 25.1(h), 44.2(b).



                                         6
