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

.

§ § §

STATE'S POST- SUBMISSION SUPPLEMENTAL BRIEF

§ § §

SHAREN WILSON Criminal District Attorney Tarrant County, Texas

DEBRA WINDSOR Chief, Post

- Conviction

STEVEN W. CONDER , Assistant Criminal District Attorney 401 W. Belknap Fort Worth, Texas 76196

- 0201 (817) 884

- 1687 FAX (817) 884

- 1672

State Bar No. 046 56510
COAAppellatealerts@tarrantcountytx.gov

LISA MCMINN State Prosecuting Attorney
Austin, Texas PD-0122-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/25/2015 10:29:42 AM Accepted 8/25/2015 11:17:38 AM

ABEL ACOSTA

CLERKi TABLE OF CONTENTS

INDEX OF AUTHORITIES

................................ ................................ ......... ii

STATEMENT OF THE CASE

................................ ................................ ..... 1

STATEMENT OF FACTS

................................ ................................ .......... 2

STATE’S SUPPLEMENTAL RESPONSE

................................ ................... 3

CONCLUSION AND PRAYER

................................ ................................ ... 6

CERTIFICATE OF SERVICE

................................ ................................ ..... 7

CERTIFICATE OF COMPLIANCE

................................ .............................. 8ii INDEX OF AUTHORITIES

CASES PAGES

Ex parte Webb

, 270 S.W.3d 108 (Tex. Crim. App. 2008)

................................ .................. 5

In re Commitment of Stevenson 2013 WL 5302591 (Tex. App.

- Beaumont September 19, 2013)

............. 2

Stevenson v. State, 2015 WL 221816 (Tex. App.

– Fort Worth Jan. 15, 2015)

........................ 2

STATUTES

Tex. Health & Safety Code Ann. § 841.082

................................ ........ 4, 5, 6

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

................................ ........ 4, 6

RULES

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

................................ ................................ ................. 8

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

................................ ................................ .................. 8

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

................................ ................................ ........... 51 IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

ERIC DWAYNE STEVENSON

, §

APPELLANT § §

V. § NO . PD

- 0122

- 15 § THE STATE OF TEXAS, §

APPELLEE §

ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02

- 13

- 00537

- CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS

DISTRICT OF TEXAS.

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant was convicted of three counts of violating the civil

commitment requirements for sexually violent predators by

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

treatm ent advisor;

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

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

(C.R. I:104

- 11). The jury found the repeat offender notice to be true, and

sentenced him to seventeen years’ confinement and a $5000 fine for each2 count. (C.R. I:116

- 18).

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

appellant’s five points of error and affirmed his conviction

. Stevenson v.

State

, 2015 WL 221816 at *1

- 2 (Tex. App.

– Fort Worth January 15, 2015)

(not designated for publication)

.

T his Court granted the appellant’s petition for discretionary review on

April 29, 2015

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

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

( http://www.search.txcourts.gov/Case.aspx?cn=PD

- 0122

- 15&coa=coscca ).

STATEMENT OF FACTS

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

sexually violent predator. (R.R. IV: 38, 42, VIII:State’s Exhibit #2). The t rial

court entered a final judg ment and order of civil commitment for outpatient

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

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

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

1 The Court of Appeals for the Ninth District of Texas affirmed the appellant’s final judgment and civil commitment order on September 19,

2013. See In re Commitment of Stevenson , 2013 WL 5302591 (Tex. App.

– Beaumont September 19, 2013) (not designated for publication).3 On February 26, 2012, the appellant removed his tr acking 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 a ppellant had

not been approved to remove his GPS device or have c ontact with his

girlfriend. (R.R . IV:49

- 51, IV:150

- 151).

STATE'S SUPPLEMENTAL RESPONSE

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

count of violating his civil commitment requirements due to recent

legislative changes to the civil commitment statutes

.

In the 2015 session, the Texas Legislature revised the statutory

language for criminally prosecuting sexually violent predators for violating

their civil commitment requirements as follows:

A person commits an offense if, after having been adjudicated and

civill y committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement imposed under Section 841.082(a)(1), (2), (4), or (5).

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

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

revised the civil commitment requirements as follows:

Before entering an order directing a person's civil commitment, the4 judge shall impose on the person requirements necessary to ensure the person's c ompliance with treatment and supervision and to protect the community. The requirements shall include:

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

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

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

(4) requiring the person to:

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

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

(5) prohibiting the person leaving the state without prior

authorization from the o ffice.

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

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

eliminated the criminal prosecution of civilly committed sexually violent

predators for:

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

• Failing to participate or comply with the sex offender treatment

program;

• Failing to comply with written requirements imposed by the5 office or the case manager;

• Changing their residence without authorization from the judge;

and

• Violating any other requirement determined necessary by the judge.

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

changes apply to the appellant because his conv iction was not final on

June 17, 2015

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

& 44.

The 2015 statutory changes do not completely invalidate the

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

for criminal prosecution. The appellant was convicted of violating the

requirements of his civil commitment by:

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

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

3. Failing to make progress in his sexually violent predator

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

the Court of Crimi nal Appeals rules on a petition for discretionary review. Tex. R. App. P. 18.1(a)(2).6 treatment program resulting in his discharge.

( C.R. I:104

- 11 ).

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

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

obstructing or manipulating his tracking equipment by separating from it ;

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

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

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

this single criminal violation of his civil commitment requirements. 3

CONCLUSION AND PRAYER

The appellant’s conviction s for violating the civil commitment

requirements for sexually violent predators should be reformed to reflect a

sing le criminal violation

.

Respectfully submitted,

SHAREN WILSON Criminal District Attorney

3 Reformation of the appellant’s convictions to reflect a single criminal violation of his civil commitment requirements renders moot his ground for

review that his multiple convictions violate his protection against double jeopardy.7 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 B ar No. 04656510
COAAppellatealerts@tarrantcountytx.gov

LISA MCMINN State Prosecuting Attorney
Austin, Texas

CERTIFICATE OF SERVICE

True copies of the State's post

- submission supplemental brief have

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

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

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

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

- 3046,

on this, the 25th day of August , 2015

.

/s/ Steven W. Conder

STEVEN W. CONDER8 CERTIFICATE OF COMPLIANCE

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

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

than 14

- point for text and 12

- point for footnotes. This document complies

with the word

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

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

Microsoft Office Word 2010.

/s/ Steven W. Conder

STEVEN W. CONDER

c18.stevenson eric dwayne .br/cca /supplemental