                                                                        PD-0122-15
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 7/16/2015 11:18:18 AM
July 16, 2015                                          Accepted 7/16/2015 11:56:50 AM
                IN THE COURT OF CRIMINAL APPEALS                        ABEL ACOSTA
                                                                                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 BRIEF ON THE MERITS

                             § § §

                             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. 04556510
                             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 ................................... 3

SUMMARY OF STATE’S REPLIES ........................... 7

STATE’S REPLY TO APPELLANT’S FIRST GROUND FOR REVIEW:
  DOUBLE JEOPARDY ..................................... 9

  A    Allowable Units of Prosecution ................. 11
  B.   Units of Prosecution Shown ..................... 15
  C.   Conclusion ..................................... 16

STATE’S REPLY TO APPELLANT’S SECOND GROUND FOR REVIEW:
  TRIAL COURT JURISDICTION ........................... 17

STATE’S REPLY TO APPELLANT’S THIRD GROUND FOR REVIEW:
  DENIAL OF MOTION TO QUASH INDICTMENT ............... 21

STATE’S REPLY TO APPELLANT’S FOURTH GROUND FOR REVIEW:
  DENIAL OF DIRECTED VERDICT ......................... 24

STATE’S REPLY TO APPELLANT’S FIFTH GROUND FOR REVIEW:
  EXCLUSION OF EVIDENCE .............................. 27

CONCLUSION AND PRAYER ............................... 30

CERTIFICATE OF SERVICE .............................. 30

CERTIFICATE OF COMPLIANCE ............................ 31




                             i
                 INDEX OF AUTHORITIES

CASES                                             PAGES

Arbuckle v. State,
 132 Tex. Crim. 371, 105 S.W.2d 219
 (Tex. Crim. App. 1937).............................. 18

Bays v. State,
 396 S.W.3d 580 (Tex. Crim. App. 2013)............... 28

Boykin v. State,
 818 S.W.2d 782 (Tex. Crim. App. 1991)............... 19

Brown v. Ohio,
 432 U.S. 161, 97 S.Ct. 2221
 53 L.Ed.2d 187 (1977)............................... 10

Crabtree v. State,
 389 S.W.3d 820 (Tex. Crim. App. 2012)............... 28

Ex parte Benson,
 459 S.W.3d 67 (Tex. Crim. App. 2014)................ 10

Fletcher v. State,
 214 S.W.3d 5 (Tex. Crim. App. 2007)................. 17

Gonzales v. State,
 304 S.W.3d 838 (Tex. Crim. App. 2010)............... 12

Hardy v. State,
 187 S.W.3d 232 (Tex. App. -- Texarkana
 2006, pet. refused)................................. 29

Huffman v. State,
 267 S.W.3d 902 (Tex. Crim. App. 2008)............... 11



                           ii
In re Commitment of Fisher,
 164 S.W.3d 637 (Tex. 2005).......................... 18

In re Commitment of Lowe,
 151 S.W.3d 739 (Tex. App. - Beaumont
 2004, pet. denied).............................. 19, 26

In re Commitment of Richards,
 202 S.W.3d 779 (Tex. App. – Beaumont
 2006, pet. denied).................................. 18

In re Commitment of Stevenson,
 2013 WL 5302591 (Tex. App. – Beaumont
 September 19, 2013, no pet.)..................... 3, 18

Jones v. State,
 323 S.W.3d 885 (Tex. Crim. App. 2010)....... 11, 13, 14

Long v. Castle Tex. Prod. Ltd. P'ship,
 426 S.W.3d 73 (Tex. 2014)........................... 18

Miller v. State,
 333 S.W.3d 352 (Tex. App. - Fort Worth
 2010, pet. refused)................................. 22

Rodriquez v. State,
 227 S.W.3d 842 (Tex. App. – Amarillo
 2007, no pet.)...................................... 28

Rotenberry v. State,
 245 S.W.3d 583 (Tex. App. - Fort Worth
 2007, pet. refused)................................. 22

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



                          iii
Smith v. State,
 2014 WL 4460420 (Tex. App. – Beaumont
September 10, 2014, no pet.) ......................... 23

Speights v. State,
 ___ S.W.3d ___, 2015 WL 3988969
 (Tex. Crim. App. July 1, 2015)...................... 10

Stevenson v. State,
 2015 WL 221816 (Tex. App. – Fort Worth
 January 15, 2015, pet. granted)...................... 1

Thomas v. State,
 454 S.W.3d 660 (Tex. App. – Texarkana
 2014, pet. refused)................................. 12

Young v. State,
 341 S.W.3d 417 (Tex. Crim. App. 2011)............... 12


CONSTITUTION & STATUTES

U.S. Const. amend. V .................................. 9

Tex. Code Crim. Proc. art. 11.07 §3(a) ............... 20

Tex. Health & Safety Code §841.081(a) ............ 19, 26

Tex. Health & Safety Code §841.085(a) ............ passim

Tex. Health & Safety Code §841.146(b) ................ 18

Tex. Penal Code §12.42(a)-(d) ................ 20, 28, 29


RULES

Tex. R. App. P. 9.4(e) ............................... 31
                           iv
Tex. R. App. P. 9.4(i) ............................... 31

Tex. R. App. P. 25.1(h) .............................. 18

Tex. R. Evid. 401 ................................ 28, 29




                            v
               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.          (C.R. I:109-11).      The jury

found   the    repeat   offender     notice     to   be   true,    and

sentenced     him to seventeen years’ confinement and a

$5000 fine for each 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,

                                1
2015, pet. granted) (not designated for publication).

       On     April   29,   2015,       this   Court   granted   the

appellant’s petition for discretionary review on the

following issues:

  1.        Are the appellant’s convictions in each count
            the same offense for double jeopardy purposes?

  2.        Did the trial court have jurisdiction because
            the appeal from his commitment order was still
            pending at the time of trial?

  3.        Did the trial court improperly deny the
            appellant’s motion to quash his indictment
            because the appeal from his commitment order
            was still pending at the time of trial?

  4.        Did the trial court improperly deny the
            appellant’s motion for directed verdict because
            the appeal from his commitment order was still
            pending at the time of trial?

  5.        Did the trial court improperly exclude evidence
            that his commitment order was still on appeal?

Stevenson v. State, No. PD-0122-15 (notice).




                                    2
                           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             against him.             (R.R. IV:38, 42,

VIII:State’s Exhibits #1 & 2). 1                  The trial court ordered

that the appellant’s civil commitment begin upon his

release from the Texas Department of Criminal Justice.

(R.R. IV:38, 42, VIII:State’s Exhibit #2).

        Under    the   terms      of   his        civil    commitment,   the

appellant was ordered to:

    •     Reside in a residential facility under contract
          with the Office of Violent Sex Offender
          Management;

    •     Participate in and comply with the course of
          treatment provided by the Office;



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, no pet.) (not designated
        for publication).


                                       3
    •     Comply with all written requirements             of   the
          Office and his case manager; and

    •     Submit to tracking under a global positioning
          satellite (GPS) monitor or other monitoring
          system and not tamper with, alter, modify,
          obstruct   or   manipulate the   GPS  monitor
          frequency and comply with all written monitor
          system requirements.

(R.R. IV:38, 42, VIII:State’s Exhibit #1).

        On December 27, 2011, the appellant was assigned to

a   transitional    living   center   in    Fort   Worth    for   his

outpatient treatment program.         (R.R. IV:37, 55).           The

appellant received the supervision requirements that:

    •     He wear a wearable miniature tracking device
          (WMTD) twenty-four hours a day, seven days a
          week;

    •     He remain on home confinement twenty-four hours
          a day, seven days a week, unless given
          permission to leave; and

    •     He not have any contact with family members,
          casual relations, or friends unless approved by
          his case manager and treatment provider.

(IV:37, 39-44, VIII:State’s Exhibit #3 [requirements 1

& 10], State’s Exhibit #4 [requirement 28]).

        The   appellant   received    his    treatment      program


                                4
conditions and requirements that:

  •      He could be terminated from the program if he
         failed to make progress;

  •      He could be discharged from the program if he
         did not follow the rules of civil commitment,
         including supervision and treatment; and

  •      He was required to actively participate in and
         successfully complete the Outpatient Sexually
         Violent Predator Treatment Program.

(R.R. IV:143-45, VIII:State’s Exhibit #5 [requirements

1, 4 & 8]).

      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 have contact with

family    or   friends,   or   to       meet   with   his   girlfriend.

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

      The appellant had not been making progress in his

treatment.     (R.R. IV:166-67).          Specifically:

  • He had a difficult time being open;

  • He was not cooperative;

                                    5
  • In group sessions, he would laugh, make light of
    the conversation, and did not appreciate the
    seriousness of the discussion; and

  • He commented that “people don’t need to get into
    his business”.

(R.R. IV:153, 155-57, 167-71).

    The appellant was discharged from the outpatient

treatment    program   after       he   absconded     from   the

transition   center.    (R.R.       IV:169-172,     VIII:State’s

Exhibit #7).    His treatment provider believed that he

lacked commitment to treatment, and is dangerous due to

his highly impulsive nature and his inability to weigh

the consequences of his actions.        (R.R. IV:168-71).




                               6
              SUMMARY OF THE STATE'S REPLIES

Double Jeopardy:

    Each violation of the civil commitment requirements

is an allowable unit of prosecution. The appellant’s

three convictions do not violate his double jeopardy

protection against multiple punishments.



Jurisdiction:

    Civil commitment orders are effective immediately.

A prosecution for violating its requirements may occur

despite a pending appeal of that order.



Indictment:

    The   pendency   of   an   appeal   challenging   a   civil

commitment order is not relevant to the validity of an

indictment for violation its requirements.



Directed Verdict:

    Civil commitment orders are effective immediately.

The conclusion of an appeal challenging that order is

                               7
not   an   element    of    prosecution       for      violating    its

requirements.



Exclusion of Evidence:

      The “finality” of a civil commitment order is a

question   of   law   for   the       trial   court.      It   is   not

relevant to any question of fact for the jury.




                                  8
 STATE'S REPLY TO APPELLANT'S FIRST GROUND FOR REVIEW:

                     DOUBLE JEOPARDY



Appellant's Contention:

    The appellant contends that his three convictions

are the same offense for double jeopardy purposes.



State's Reply:

    Each violation of the civil commitment requirements

is an allowable unit of prosecution. The appellant’s

three convictions do not violate his double jeopardy

protection against multiple punishments.



Arguments and Authorities:

    The United States Constitution guarantees that a

person shall not “be subject for the same offence to be

twice put in jeopardy of life or limb.”      U.S. Const.

amend. V.   This guarantee protects a defendant against:

    (1) A second prosecution for the same offense
        after acquittal;


                             9
     (2) A second prosecution for the same offense
         after conviction; and

     (3) Multiple punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225,

53 L.Ed.2d 187 (1977); Speights v. State, ___ S.W.3d

___, 2015 WL 3988969 at *2 (Tex. Crim. App. July 1,

2015).

     What constitutes the “same offense” for multiple

punishment purposes is strictly a matter of legislative

intent; that is, how many different offenses or units

of   prosecution   did   the   Legislature   contemplate   for

which an accused should be susceptible to punishment.

Speights v. State, 2015 WL 3988969 at *2.         A “units of

prosecution” analysis consists of two parts:

     (1) What the allowable unit of prosecution is?

     (2) How many units have been shown?

Speights v. State, 2015 WL 3988969 at *2; Ex parte

Benson, 459 S.W.3d 67, 73-74 (Tex. Crim. App. 2014).

Absent   an   explicit   statement   defining   the   allowable

unit of prosecution, the best indicator of legislative


                               10
intent   is   the     focus    or    “gravamen”         of    the   offense.

Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App.

2010).

A.   Allowable Units of Prosecution

     The Texas Health and Safety Code provides that a

person commits a criminal 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).                 Tex. Health & Safety

Code §841.085(a).

     Under    the     “eighth       grade    grammar”        approach     for

determining legislative intent, the statutory language

that constitutes the “gravamen” of an offense is the

subject,     the    main    verb,    and    the   direct       object.    See

Jones v. State, 323 S.W.3d at 890-91; Huffman v. State,

267 S.W.3d 902, 906 (Tex. Crim. App. 2008).                     In section

841.085(a), the subject of the statute is “a person”,

the verb is “violates”, and the direct object is “a

civil    commitment        requirement”.          See    Tex.       Health   &

Safety   Code      §841.085(a).           Thus,    the       “gravamen”      of

                                     11
section 841.045 is the defendant violating his civil

commitment requirements or the nature of his conduct.

      In “nature of conduct” offenses, each separately

defined      act   within      a    statute     typically         evinces    a

legislative        intent      that    the    act       be    construed      to

constitute separate offenses and not merely different

manners     and    means      for   committing      a    single      offense.

Gonzales v. State, 304 S.W.3d 838, 847 (Tex. Crim. App.

2010).        Thus,      multiple      violations            of   the   civil

commitment requirements constitute multiple offenses or

units of prosecution.

      While the Court has not yet addressed this precise

issue, an apt comparison can be made to the sexual

offender registration cases where each violation of the

sexual      offender    registration         requirements         can   be    a

separate unit of prosecution.                See Young v. State, 341

S.W.3d 417, 426-27 (Tex. Crim. App. 2011) (each failure

to comply with the change of residence notification is

a separate offense); Thomas v. State, 454 S.W.3d 660,

664   n.1    (Tex.     App.    –    Texarkana    2014,        pet.   refused)

                                      12
(each      change    of   address     is     an   allowable       unit    of

prosecution since a sex offender has a duty to report a

change of address to the proper authorities both before

and after a move). 2          See also Jones v. State, 323 S.W.3d

at   889    (in     “false    statement      to   obtain    property       or

credit” cases, the “gravamen” is the act of making a

materially        false      statement;      thus,    multiple          false

statements give rise to multiple offenses even if made

in connection with only one credit application).

     Additionally,           the   express    language      in        section

841.085(a)        criminalizes      the    violation       of    “a    civil

commitment requirement”.            See Tex. Health & Safety Code

§841.085(a).        A legislative reference to an item in the

singular suggests that each instance that item occurs

is a separate unit of prosecution.                Jones v. State, 323

S.W.3d at 891.        As this Court pointed out:


2    Contrary to the appellant’s claim, nothing in Smith v.
     Doe appears to limit the units of prosecution which
     might arise from a defendant’s failure to comply with
     his sexual offender registration requirements.     See
     Smith v. Doe, 538 U.S. 84, 101-02, 123 S.Ct. 1140,
     1152, 155 L.Ed.2d 164 (2003).


                                     13
      [O]ther jurisdictions have employed what is
      sometimes known as the “a/any test”: The use of
      “a” before the proscribed conduct means that
      the   statute    unambiguously  proscribes   each
      instance of the conduct while the use of “any”
      is ambiguous, and may or may not proscribe each
      instance of conduct, depending on the context
      of the entire statute. One court has criticized
      the employment of this test while another has
      cautioned that the “test” is a “valuable but
      nonexclusive     means   to  assist   courts   in
      determining the intended unit of prosecution”
      that should not be applied “mechanistically.”
      We do not adopt the “a/any” test as a strict
      rule, but we find it to be a helpful tool in
      statutory analysis. The presence of “a” before
      the term “materially false or misleading
      statement”    in    §32.32  is  at   least   some
      indication that each “materially false or
      misleading statement” constitutes a separate
      unit of prosecution.

Jones    v.   State,   323   S.W.3d   at   891-92   (citations

omitted).      Thus, the Legislature’s use of “a” before

the   term    “civil   commitment   requirement”    in   section

841.085(a) indicates that each violation constitutes a

separate unit of prosecution.

      In sum, this offense’s “gravamen” is each unique

violation of a civil commitment requirement; as such,

each violation is an allowable unit of prosecution.



                               14
B.       Units of Prosecution Shown

         The appellant’s civil commitment required that:

     •     He wear a wearable miniature tracking device
           (WMTD) twenty-four hours a day, seven days a
           week;

     •     He remain on home confinement twenty-four hours
           a day, seven days a week, unless given
           permission to leave;

     •     He not have any contact with family members,
           casual relations, or friends unless approved by
           his case manager and treatment provider; and

     •     He actively participate and make progress in
           his outpatient treatment program.

(VIII:State’s Exhibit #3 [requirements 1 & 10], State’s

Exhibit       #4   [requirement    28],   State’s   Exhibit   #5

[requirements 1 & 8]).

         The evidence showed that:

     •     On February 26, 2012, the appellant removed his
           tracking device and left the transition center
           without approval. (R.R. IV:45-46).

     •     The appellant was found at his girlfriend’s
           apartment when he had not been approved for
           contact with his girlfriend. (R.R. IV:49-51,
           94-95, 150-51).

     •     The appellant was discharged from the treatment
           program for lack of progress; specifically, he

                                  15
        was not cooperative and did not treat the
        program seriously. (R.R. IV:153, 155-57, 167-
        72, VIII:State’s Exhibit #7).

Thus, the evidence supports the jury’s finding that the

appellant violated at least three requirements of his

civil commitment.        (C.R. I:105-11, R.R. V:35-36).



C.    Conclusion

      The   appellant’s     conviction       for   three    separate

violations of his civil commitment requirements does

not   violate   his      double   jeopardy     protection    against

multiple    punishments      because    each    violation    was    an

allowable    unit   of    prosecution    and    supported    by    the

evidence.

      The appellant’s first ground for review should be

denied.




                                  16
STATE'S REPLY TO APPELLANT'S SECOND GROUND FOR REVIEW:

                 TRIAL COURT JURISDICTION



Appellant's Contention:

    The appellant contends that the trial court lacked

jurisdiction over this prosecution because his appeal

from his civil commitment order was still pending.



State's Reply:

    Civil commitment orders are effective immediately.

A prosecution for violating its requirements may occur

despite a pending appeal of that order.



Arguments and Authorities:

    In   criminal   cases,   a     conviction   from   which   an

appeal has been taken is not considered to be a final

conviction until that       conviction is affirmed by the

appellate court and mandate is issued.             Fletcher v.

State, 214 S.W.3d 5, 6 (Tex. Crim. App. 2007).             This

criminal-case    finality    rule     derives   from   specific

                              17
statutory authority.          See Arbuckle v. State, 132 Tex.

Crim.       371,   105   S.W.2d    219   (Tex.    Crim.      App.    1937)

(referencing Tex. Penal Code 1925 arts. 61-63). 3

       A sexually violent predator commitment proceeding,

however, is not criminal matter.              In re Commitment of

Fisher,      164    S.W.3d   637,   653    (Tex.     2005)      (sexually

violent      predator    commitment      proceedings      are    a   civil

matter).       A civil commitment proceeding is subject to

the rules of procedure and appeal for civil cases.                       In

re Commitment of Richards, 202 S.W.3d 779, 787 (Tex.

App.    –    Beaumont    2006,    pet.    denied);    Tex.      Health    &

Safety Code §841.146(b).

       In civil cases, a judgment’s finality is context-

dependent.         See Long v. Castle Tex. Prod. Ltd. P’ship,

426 S.W.3d 73, 78 (Tex. 2014).                   Filing a notice of

appeal does not automatically suspend the enforcement

of a civil judgment.             Tex. R. App. P. 25.1(h).             This

3      The State does not dispute that the appellant’s civil
       commitment appeal was still pending when he violated
       its requirements.   See In re Commitment of Stevenson,
       2013 WL 5302591 (Tex. App. – Beaumont September 19,
       2013, no pet.) (not designated for publication).


                                    18
Court should instead look at the statutory language.

     The Texas Health and Safety Code expressly states:

     The commitment order is effective immediately
     on entry of the order.

Tex. Health & Safety Code §841.081(a).                     This language

suggests that the Legislature intended for the civil

commitment requirements to have immediate effect and

immediate consequences for any violation.                        See In re

Commitment of Lowe, 151 S.W.3d 739, 743 (Tex. App. -

Beaumont 2004, pet. denied) (a civil commitment order

is   effective     even      while    the    case    is     on     appeal).

Legislative interpretation does not generally allow the

Court to ignore express statutory language.                      See Boykin

v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)

(where     the   statute      is     clear   and     unambiguous,        the

Legislature      must   be    understood     to     mean   what     it   has

expressed, and it is not for the courts to add or

subtract from such a statute).

     Furthermore, section 841.085 does not use the term

“final”;     rather,         it    states    “after        having        been


                                     19
adjudicated and civilly committed as a sexually violent

predator under this chapter”.              See Tex. Health & Safety

Code        §841.085(a).        By    contrast,     other    criminal

statutes, such as the repeat offender statutes and the

habeas corpus statute refer to “final convictions” or a

defendant being “finally convicted”.                 See Tex. Penal

Code §12.42(a)-(d); Tex. Code Crim. Proc. art. 11.07

§3(a).          The   absence    of       any   “finality”   language

reinforces that the Legislature intended for the civil

commitment requirements to have immediate effect.

       In     sum,    given   the     civil     commitment    order’s

immediate effect, the trial court had jurisdiction over

this prosecution despite the order’s pending appeal.

       The appellant’s second ground for review should be

denied.




                                     20
 STATE'S REPLY TO APPELLANT'S THIRD GROUND FOR REVIEW:

          DENIAL OF MOTION TO QUASH INDICTMENT



Appellant's Contention:

    The   appellant     contends          that   the   trial     court

improperly denied his motion to quash his indictment

because his civil commitment order was pending appeal.



State's Reply:

    The   pendency    of    an    appeal     challenging    a    civil

commitment order is not relevant to the validity of an

indictment for violation its requirements.



Arguments and Authorities:

    The appellant filed a pre-trial motion to quash his

indictment   because       his    civil    commitment    order     was

pending   appeal     when    he    violated      its   requirements.

(C.R. I:50-52).       The trial court denied this motion.

(R.R. II:10).

    In evaluating the denial of a motion to quash, an

                                  21
indictment should be analyzed to determine whether it

states on its face the facts necessary to allege that

an       offense       was    committed,             to   bar     a      subsequent

prosecution        for       the   same     offense,        and    to     give    the

accused notice of the precise offense with which he has

been charged.           Rotenberry v. State, 245 S.W.3d 583, 586

(Tex.      App.    -     Fort      Worth        2007,     pet.    refused).       The

indictment herein, on its face:

     •     Identifies the appellant as the defendant;

     •     Identifies   the   sexually  violent   predator
           judgment and civil commitment by date and cause
           number; and

     •     Identifies    how   and   when                   the   appellant
           intentionally    or   knowingly                   violated   its
           requirements.

(C.R. I:6-8).           Thus, it provided the appellant with the

requisite notice.

         Whether   a     defendant         must       comply      with     a   civil

commitment order still pending appeal is not relevant

to       the   issue     of     whether         an    indictment         should    be

quashed.          See Miller v. State, 333 S.W.3d 352, 358


                                           22
(Tex.       App.   -    Fort        Worth        2010,     pet.    refused)

(appellant's       defense     that        he    was   confined     when    he

violated the civil commitment order was irrelevant to

whether the trial court should have granted a motion to

quash); Smith v. State, 2014 WL 4460420 at *1 (Tex.

App.    –   Beaumont     September         10,    2014,    no    pet.)     (not

designated     for     publication)         (argument      that    defendant

was not required to comply with civil commitment order

still    pending     appeal    is    a     defensive      theory    and    not

relevant      to   whether     indictment         should    be     quashed).

Thus, the trial court properly denied the appellant’s

motion to quash his indictment.

       The appellant’s third ground for review should be

denied.




                                      23
STATE'S REPLY TO APPELLANT'S FOURTH GROUND FOR REVIEW:

            DENIAL OF MOTION FOR DIRECTED VERDICT



Appellant's Contention:

      The   appellant        contends   that    the    trial      court

improperly denied his motion directed verdict.



State's Reply:

      Civil commitment orders are effective immediately.

The conclusion of an appeal challenging that order is

not   an    element     of    prosecution      for    violating    its

requirements.



Arguments and Authorities:

      The appellant moved for a directed verdict on the

basis that his civil commitment order was not final

since it was still pending appeal when he violated its

requirements.     (R.R. V:8-10).         The trial court denied

this motion.    (R.R. V:10).

      The civil commitment violation prosecution statute

                                  24
does       not   use      the   term    “final”    or    “finally”     in

describing the civil commitment order.                  See Tex. Health

& Safety Code §841.085(a).              It simply requires that the

State prove that the defendant had been adjudicated and

civilly committed as a sexually violent predator when

he       violated   his    commitment       requirements.     See    Tex.

Health & Safety Code §841.085(a).

         The State proved both these elements by showing

that:

     •     The appellant was adjudicated as a sexually
           violent predator and civilly committed on
           September   14,  2011.      (R.R. IV;38, 42,
           VIII:State’s Exhibits #1 & 2).

     •     The appellant violated its requirements when:

                He removed his tracking device and left
                 the transition center without approval.
                 (R.R. IV:45-46);

                He   was   located  at   his girlfriend’s
                 apartment with whom he had not been
                 approved to have contact. (R.R. IV:49-51,
                 94-95, 150-51); and

                He was discharged from the treatment
                 program for not being cooperative or
                 treating the program seriously.    (R.R.
                 IV:153,  155-57,   167-72,  VIII:State’s

                                       25
             Exhibit #7).

Thus, the trial court properly denied the appellant’s

motion for directed verdict.

    Furthermore, as previously addressed, the statutory

language     clearly    indicates    that    the   Legislature

intended for the civil commitment requirements to have

immediate    effect    and   immediate   consequences   for   any

violation.    See Tex. Health & Safety Code §841.081(a);

In re Commitment of Lowe, 151 S.W.3d at 743.

    The appellant’s fourth ground for review should be

denied.




                                26
 STATE'S REPLY TO APPELLANT'S FIFTH GROUND FOR REVIEW:

                        EXCLUSION OF EVIDENCE



Appellant's Contention:

       The   appellant     contends        that     the   trial       court

improperly excluded evidence that his civil commitment

order was pending appeal.



State's Reply:

       The “finality” of a civil commitment order is a

question     of   law    for    the    trial   court.         It   is   not

relevant to any question of fact for the jury.



Arguments and Authorities:

       The   trial      court     excluded        evidence     that     the

appellant’s civil commitment order was pending appeal

when    he   violated     its     requirements       on      the   State’s

relevance objection.           (R.R. IV:68, 79).

       Evidence is relevant if it has any tendency to make

the existence of a fact that is of consequence to the

                                      27
determination       of    the   action     more    probable    or   less

probable than it would be without the evidence.                     Tex.

R. Evid. 401.       Statutory interpretation, however, is a

question of law.          Bays v. State, 396 S.W.3d 580, 584

(Tex. Crim. App. 2013).             Questions of law are to be

determined    by    the    trial    court    and    not   by   a    jury.

Crabtree v. State, 389 S.W.3d 820, 853 n.39 (Tex. Crim.

App. 2012).

     Since the legal status of the appellant’s civil

commitment order was a question of law, the trial court

properly excluded evidence that the commitment order

was pending appeal as irrelevant to any issue before

the jury.     Compare Rodriquez v. State, 227 S.W.3d 842,

844 (Tex. App. – Amarillo 2007, no pet.) (trial court

properly denied the jury opportunity to decide whether

a   New   Mexico    offense     was      substantially    similar     to

various    statutory       crimes     mandating     a   life   sentence

under Texas Penal Code §12.42(c)(2)(B) since whether

they are substantially similar is a question of law

involving     the        interpretation       of    the    respective

                                    28
statutes); Hardy v. State, 187 S.W.3d 232, 236 (Tex.

App. -- Texarkana 2006, pet. refused) (comparing two

statutes    to    determine   their      similarity      under     Texas

Penal Code §12.42(c)(2)(B) is a question of law to be

determined by the trial court and not the jury).

     Furthermore, as previously addressed, the State is

not required to prove “finality”.                See Tex. Health &

Safety     Code     §841.085(a)        (State    must    prove     that

defendant had been adjudicated and civilly committed as

a   sexually      violent   predator      when    he    violated    his

commitment requirements).         Thus, evidence regarding the

civil commitment order’s appellate status is irrelevant

to any consequential fact for the jury consideration in

determining whether the appellant violated the order’s

requirements.      See Tex. R. Evid. 401.

     The appellant’s fifth ground for review should be

denied.




                                  29
                    CONCLUSION AND PRAYER

    The    Court     of     Appeals       properly      upheld     the

appellant’s conviction and sentence.                 Therefore, the

State prays that its judgment be upheld.


                                 Respectfully submitted,

                                 SHAREN WILSON
                                 Criminal District Attorney
                                 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. 24073106
                                 COAAppellatealerts@tarrantcountytx.gov

                                 LISA MCMINN
                                 State Prosecuting Attorney
                                 Austin, Texas


                    CERTIFICATE OF SERVICE

    True   copies     of    the     State's     brief     have    been

electronically     served   on     opposing    counsel,    the    Hon.


                                  30
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 16th day of July, 2015.


                               /s/ Steven W. Conder
                               STEVEN W. CONDER


                  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 3557

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



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