1 

Case No. PD-0122-15

___________________________________________________

IN THE TEXAS COURT OF CRIMINAL APPEALS

___________________________________________________

ERIC DWAYNE STEVENSON v. THE STATE OF TEXAS

___________________________________________________

On Discretionary Review

of Appeal No. 02-13-00537-CR

in the Second Court of Appeals of Texas

at Fort Worth

___________________________________________________

APPELLANT’S BRIEF

___________________________________________________

Scott Walker

STATE BAR # 24004972 

222 W. Exchange Avenue

Fort Worth, TX 76164

(817) 478-9999

(817) 977-0163 Facsimile

scott@lawyerwalker.com

Attorney for Appellant

Oral Argument Not Permitted

PD-0122-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/23/2015 12:56:10 PM

Accepted 6/23/2015 2:02:59 PM

ABEL ACOSTA

CLERK
2

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Hon. Robb Catalano Criminal 

District Court 3

Tarrant County, Texas

Appellant: Eric Dwayne Stevenson

Trial Counsel: Stephanie Patten 

1300 W. University Drive, 602

Fort Worth, Texas 76102

Steve Gordon

201 Moneda Street

Fort Worth, Texas 76117

Appellate Scott Walker

Attorney for Appellant: Attorney at Law

222 W. Exchange Avenue

Fort Worth, Texas 76164

Appellee: The State of Texas

Trial Attorney for Lloyd E. Whelchel &

Appellee: Catherine P. Simpson

Tarrant County Assistant 

District Attorneys

401 W. Belknap

Fort Worth, Texas 76196

Appellate Attorney for Debra Windsor (appeal)

Appellee: Assistant Tarrant County 

District Attorney

401 W. Belknap

Fort Worth, Texas 76196

Lisa McMinn (discretionary 

review)

State Prosecuting Attorney

P.O. Box 12405

Austin, Texas 78711
3

TABLE OF CONTENTS

PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL. . . . . 2

TABLE OF CONTENTS. . . . . . . . . . . . . . . . 3

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . 7

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . 8

QUESTIONS FOR REVIEW

QUESTION NUMBER ONE: (The convictions on Count 

I, Count II, and Count III are for the same 

offense for double jeopardy purposes).

QUESTION 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.

QUESTION NUMBER THREE: The trial court 

erred by denying Appellant’s motion for 

directed verdict.

QUESTION NUMBER FOUR: The trial court erred 

by denying Appellant’s motion to quash the 

indictment.

QUESTION 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. . . . . . . 8

STATEMENT OF FACTS . . . . . . . . . . . . . . . 9

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 9

ARGUMENT . . . . . . . . . . . . . . . . . . . . 11

PRAYER . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 40

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . 41
4

INDEX OF AUTHORITIES

CASES

Austin v. State,

P.D. 14 (Tex.Crim.App., delivered March 18, 2015).37

Bohannan V. State,

2014 Tex.App.Lexis 11825 (Tex. App.—Beaumont, 

delivered October 29, 2014, no pet.). . . . . 34, 38

Boykin v. State,

818 S.W.2d 782 (Tex.Crim.App. 1991). . . . . . . .31

Duckett v. State,

454 S.W.2d 755 (Tex.Crim.App. 1970) . . . . . . . 14

Ex Parte Jimenez,

361 S.W.3d 679 (Tex.Crim.App. 2012). . . . . . . 32

Ex Parte Manuel Cavazos,

203 S.W.3d 333 (Tex.Crim.App. 2006). . . . . .13, 15

Fletcher v. State, 

214 S.W.3d 5 (Tex.Crim.App. 2007). . . . . . . . .33

Giesberg v. State,

984 S.W.2d 245 (Tex.Crim.App. 1998). . . . . . . .38

Gongora v. State,

916 S.W.2d 570 (Tex.App.—Houston 1st dist. 

1996, PDRR) . . . . . . . . . . . . . . . . . 12, 15

Gonzalez v. State,

8 S.W.3d 640 (Tex.Crim.App. 2000). . . . . . . . .14

Holberg v. State,

38 S.W.3d 137 (Tex.Crim.App. 1987) . . . . . . . .20

Jordan v. State,

36 S.W.3d 871 (Tex.Crim.App. 2001) . . . .20, 21, 23
5

Lopez v. State,

108 S.W.3d 293 (Tex.Crim.App. 2003) . . . . . 13, 15

Milburn v. State,

201 S.W.3d 749 (Tex.Crim.App. 2006) . . . . . . .21

Mobley v. State,

2008 WL 4414254 (Tex.App.—Texarkana 2008, 

no pet.) . . . . . . . . . . . . . . . . . . . . .13

Rabb v. State,

730 S.W.2d 751 (Tex.Crim.App. 1987) . . . . . . . 20

Smith v. Doe,

538 U.S. 84, 101, 123 S.Ct. 1140, 155

L.Ed.2d 164 (2003) . . . . . . . . . . . . . . . .18

Smith v. State,

2014 Tex.App.Lexis 10117 (Tex.App.—Beaumont. 

Delivered September 10, 2014, no pet.). . . . 36, 37

State v. Baker,

761 S.W.2d 465 (Tex.App.—Eastland, 1988, 

no pet.) . . . . . . . . . . . . . . . . . . 12, 15

State v. Johnson,

219 S.W.3d 386 (Tex.Crim.App. 2007). . . . . . . 30

Stevenson v. State,

2015 Tex. App. LEXIS 387 (Tex.App.—Fort Worth

2015). . . . . . . . . . . . . . . . . . . . . . 29

Tamez v. State,

980 S.W. 2d 845 (Tex.Crim.App. 1998) . . . . . . 22
6

STATUTES

Tex.Health and Safety Code, 

Chapter 841. . . . . . . . . . . . . . . . . 28, 32

Tex.Health and Safety Code, 

§841.085 . . . . . . . . . . . . . . . . . . . 13

Tex.Health and Safety Code,

§841.062. . . . . . . . . . . . . . . . . . . . .28

Tex.Health and Safety Code,

§841.062(a). . . . . . . . . . . . . . . . . . . 31

Tex.Health and Safety Code, 

§841.081(a). . . . . . . . . . . . . . . . . 29, 30

Tex.Health and Safety Code,

§841.082. . . . . . . . . . . . . . . . . . . . 28

Tex.Health and Safety Code,

§841.085(a). . . . . . . . . . . 29, 30, 32, 34, 36

Rules

Tex. R. App. P.,

11. . . . . . . . . . . . . . . . . . . . . . . 28

Tex. R. App. P.

25.2(g) . . . . . . . . . . . . . . . . . . 20, 24

Other Authorities

Acts 1999, 76th Leg., ch. 1188, § 4.01. . . . . . . 31

Acts 2007, 80th Leg., ch. 1219, § 8. . . . . . . . 31
7

PD-0122-15

IN THE TEXAS COURT OF CRIMINAL APPEALS

ERIC DWAYNE STEVENSON v. THE STATE OF TEXAS

On Discretionary Review

Of Appeal No. 02-13-00537-CR

In the Second Court of appeals of Texas

at Fort Worth

___________________________________________________

APPELLANT’S BRIEF

___________________________________________________

TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:

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

138).

STATEMENT REGARDING ORAL ARGUMENT

This Court’s order granting Mr. Stevenson’s 

discretionary review petition stated that oral 

argument would not be permitted.

QUESTIONS PRESENTED

QUESTION NUMBER ONE: The convictions on Count 

I, Count II, and Count III are for the same offense 

for double jeopardy purposes.

QUESTION 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.

QUESTION NUMBER THREE: The trial court erred 

by denying Appellant’s motion for directed verdict.

QUESTION NUMBER FOUR: The trial court erred by 

denying Appellant’s motion to quash the indictment.

QUESTION NUMBER FIVE: The trial court erred by 

sustaining the State’s relevance objection to 
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Appellant’s proffered evidence that the commitment 

order was on appeal.

STATEMENT OF FACTS

After being found to be a sexually violent 

predator, the Appellant was sent to a halfway house 

in Tarrant County. After a short time, he decided 

to remove his ankle monitor, leave the facility, and 

visit his child and the child’s mother. (R.R. Vol. 

4, p. 45-49). He was arrested some four hours later 

at the home of his child and the child’s mother. 

(R.R. Vol. 4, p. 94). Based on this, he was 

subsequently charged with several counts of 

violation of a civil commitment order by a sexually 

violent predator. (C.R. Vol. 1, p. 5-7).

SUMMARY OF THE ARGUMENT

The convictions on Count I, Count II, and Count 

III are for the same offense for double jeopardy 

purposes. Appellant was convicted of three separate 

counts of the same offense. (C.R. Vol. 1, p. 123-

139). Therefore, two of the three counts are barred 
10

under the double jeopardy provisions of the Texas

and Federal Constitutions.

Furthermore, the trial court had no jurisdiction 

in this case because the prior jurisdictional 

judgment was on appeal and was, therefore, not a 

final judgment. The said jurisdictional judgment 

which found that Appellant was a sexually violent 

predator was on appeal at the time this case was 

tried. The mandate issued on December 3, 2013, which 

was five weeks after the trial of this case. 

Therefore, the trial court had no jurisdiction to 

hear the case, and the convictions should be 

reversed. For these same reasons, the trial court 

erred in denying Appellant’s motion to quash the 

indictment, denying Appellant’s motion for directed 

verdict, and by sustaining the State’s relevance 

objection to Appellant’s proffered evidence that the 

commitment order was on appeal.

Also, the elements of the non-penal-code 
11

criminal offense defined in Section 841.085(a) of

Chapter 841 of the Texas Health and Safety Code

are that a person violates a civil commitment 

requirement “after having been adjudicated and

civilly committed as a sexually violent predator.”

It cannot be said that there is any evidence (or 

that there is legally sufficient evidence) to 

support a person’s conviction under Section 

841.085(a) when the evidence conclusively and 

undisputedly establishes that this person was not 

an “adjudicated” sexually violent predator when he

allegedly violated a civil commitment requirement.

And this person cannot have this status of an

“adjudicated” sexually violent predator until his 

commitment order is final.

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.
12

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 overrule 

Appellant’s first issue, stating 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 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. 
13

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 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
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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 

prosecution for an assaultive offense is each 

complainant, as is cited below: 
15

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 

jeopardy 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), 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).

ARGUMENT: 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 
16

explore the allowable unit of prosecution in a 

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). 
17

Above-mentioned Section 841.082 provides a list of 

seven requirements that must be included in the 

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: 

The 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 
18

impose multiple felony punishments for what would 

usually be very minor infractions of the rules. 

Doing so would be like allowing multiple 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 [one] 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.
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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 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 QUESTION NUMBER TWO

QUESTION NUMBER TWO RESTATED: The trial court 

had no jurisdiction in this case because the prior 

jurisdictional judgment was on appeal and was, 

therefore, not a final judgment.

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 
20

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).

Due to the fact that the statute which allows 

for civil commitment for sexually violent predators 

is relatively new, there are no cases specifically 

on point. However, there are cases involving 

analagous situations. The law is clear that 

convictions must be final convictions in order to be 

used for enhancement purposes. The courts have 

followed this rule even when the word ‘final’ is not 

included in the applicable statute. Jordan v. State, 

36 S.W.3d 871, 873 (Tex.Crim.App. 2001). Also, 

convictions must be final convictions before the

convictions can preclude a person from getting 

probation. Jordan v. State, 36 S.W.3d 871, 874 
21

(Tex.Crim.App. 2001), Milburn v. State, 201 S.W.3d 

749 (Tex.Crim.App. 2006).

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). However, the burden is on the 

defendant to demonstrate that a judgment which seemed 

regular on its face was not in fact final at the 

relevant point in time, by showing that a motion for 

new trial or a notice of appeal had been filed. 

Milburn v. State, 201 S.W.3d 749, 753 (Tex.Crim. App. 

2006). 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 enhancement conviction. 

Tamez v. State, 980 S.W. 2d 845, 847 (Tex.Crim.App. 

1998). Likewise, in a criminal prosecution for a 
22

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). 

ARGUMENT: The trial court had no jurisdiction 

in this case because the prior jurisdictional 

judgment was on appeal and was, therefore, not a 

final judgment. The prosecution may argue that the 

civil commitment order is not a criminal conviction, 

and, therefore, the law as to the finality of 

criminal convictions is inapplicable. However, such 

an argument would not take into account the fact that 

the existence of a civil commitment is an essential 

element of the offense, just as the prior DWI 

convictions are essential elements of a felony DWI 

prosecution. The whole purpose of the finality 
23

requirements is to stimulate reliability and 

uniformity. “The finality concept exists in part to 

prevent the necessity of a trial judge being placed 

in the position of trying to predict what an 

appellate court might do in a pending case and to 

prevent their judgments from being overturned 

because of subsequent events that occur in a pending 

case.” Jordan v. State, 36 S.W.3d 871, 875 

(Tex.Crim.App. 2001). The Jordan opinion also 

indicates that allowing a felony conviction to occur, 

when there is a possibility of acquittal on the 

appeal of the underlying judgment, would be 

problematic and unjust. 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 criminal defendants are placed 
24

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 State would like to argue that the Appellant 

failed to preserve the issue for appeal because he 

did not get a copy of the notice of appeal of the 

commitment order into the record. That argument 

would be misplaced because Appellant did get the 

notice of appeal admitted during the hearing on his 

motion to quash the indictment. (R.R. Vol. 2, p. 

4). It was admitted without objection. Appellant 

also made multiple attempts to get evidence of the 

appeal in the record during trial. Trial Counsel
25

asked a witness if she was aware that Appellant had 

filed a notice of appeal of the commitment order. 

The trial judge granted the State’s relevancy 

objection. (R.R. Vol. 4, p. 68). Again, Appellant 

filed a motion to quash the indictment and had a pretrial hearing on the motion which was based on the 

appeal issue. The trial judge denied the motion. 

(R.R. Vol. 2, p.1-10). After the State rested, 

Appellant made a motion for directed verdict again 

arguing that the commitment order was on appeal and 

that the trial court had no jurisdiction. (R.R. Vol. 

5, p. 8-10). The commitment order was still on 

appeal at the time of this trial and was, therefore,

not a final order. Therefore, the trial court had 

no jurisdiction over the case, and the conviction 

should be reversed.

ARGUMENT QUESTION NUMBER THREE 

Question Number Three Restated: In 

addressing Appellant’s evidentiary sufficiency

challenge through his motion for directed
26

verdict on the basis that there was no final 

civil commitment order, the Fort Worth Court of 

Appeals erred by deciding that “the issuance of 

mandate of that order was not a necessary 

precondition for imposing criminal sanctions 

for its disobedience.”

The trial court erred by denying Appellant’s 

motion for directed verdict. (R.R. Vol. 5, p. 8-

10). At the time of the hearing on the motion, the 

commitment order was not final because it was on 

appeal. Therefore, the trial court had no 

jurisdiction over the case, and the motion for 

directed verdict should have been granted. The 

analysis is the same as in Question Two, and will 

not be repeated here. However, even without 

considering the jurisdictional argument, the 

language of the commitment statute indicates that 

criminal penalties are not warranted unless the 

person is adjudicated and civilly commited as a
27

sexually violent predator prior to his or her 

violations of the commitment order. 

It should be noted that John C. Moncure, with 

the State Counsel for Offenders, filed an Amicus 

Curiae Brief in this Cause. Appellate Counsel is in 

agreement with the Amicus Curiae Brief and hereby 

adopts the analysis. Out of an abundance of caution, 

the remainder of this argument for Question Three is 

taken from the Amicus Curiae Brief and is included 

herein.

A person is not adjudicated until the appeal on 

the matter is completed and mandate has issued.

The criminal penalty provision for imprisoning a

civilly committed person under Chapter 841 is set 

out in Section 841.085(a), and it defines the 

elements of this criminal offense as:

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.

As originally enacted in 1999, this criminal 
28

penalty provision provided that a “person commits 

an offense if the person violates a requirement 

imposed under Section 841.082.” See Acts 1999.

The Fort Worth Court of Appeals decided that 

“the issuance of mandate of [Mr. Stevenson’s civil

commitment] order was not a necessary precondition

for imposing criminal sanctions for its 

disobedience” (i.e., he could be criminally 

prosecuted for violating this order before it

became final) because this order was “effective 

immediately on entry of the order” which could not 

be superseded by the filing of a notice of appeal 

or by any provision in the rules of civil procedure.

See Stevenson, 2015 Tex. App. LEXIS 387 at *4. It

is true that a person can be civilly committed 

immediately upon entry of the civil commitment 

order under Section 841.081(a) and thus be

required to abide by all the rules of civil 

commitment even before his appeal from that order 

becomes final and while his appeal from that order
29

is still pending. However, just because a 

commitment order is effective immediately upon 

entry, it does not mean that criminal penalties can 

be imposed for failure to follow the order. 

According to the statute, criminal penalties can be 

imposed only after the person has the status of an 

“adjudicated” sexually violent predator. And that 

can happen only when the order becomes final.

The resolution of this question turns on a

construction of the term “adjudicated” in Section 

841.085(a), as it is clear from the plain language 

of Section 841.085(a,) that a person cannot be 

criminally prosecuted for violating a civil 

commitment requirement unless he has the status of 

an “adjudicated” sexually violent predator when 

this violation occurs. Any doubt about the 

construction of the term “adjudicated” must be

resolved in Mr. Stevenson’s favor. See State v. 

Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App. 

2007) (Non-penal-code criminal statutes must be 
30

strictly construed with any doubt resolved in the 

accused’s favor).

In construing the term “adjudicated,” it is not 

dispositive that a civil commitment order is 

“effective immediately” upon its entry under

Section 841.081(a,) at which time the person is

considered to be civilly committed, as this only 

satisfies Section 841.085(a)’s element that this 

person had been “civilly committed as a sexually 

violent predator.” This does not mean that the

person also had the status of an “adjudicated” 

sexually violent predator. Also, by using the term 

“adjudicated,” the Legislature had to have intended 

for the person’s status to be something more than 

“civilly committed as a sexually violent predator.”

The term “adjudicated” has a very specific meaning, 

and it seems obvious that the legislature would be 

cognizant of that fact. See Boykin v. State, 818 

S.W.2d 782, 785-86 (Tex. Crim. App. 1991). It seems 

apparent that the Legislature m e a n t for the term
31

“adjudicated” to include an appeal and issuance of 

the appellate court’s mandate. 76th Leg., ch. 1188, 

§ 4.01. This criminal penalty provision was amended 

to its current version in 2007. See Acts 2007, 

80th Leg., ch. 1219, § 8. See id.

Other provisions in Chapter 841 also support 

this construction of “adjudicated.” In 

describing the Chapter 841 adjudicatory process 

in Section 841.062 entitled “DETERMINATION OF 

PREDATOR STATUS,” the Legislature provided in 

Section 841.062(a) that the factfinder must make

this determination beyond a reasonable doubt. 

The Legislature also provided in Section 

841.062(a) that a person “is entitled to appeal the 

determination [of predator status].” This shows 

that the Legislature intended that an appeal be 

part of the adjudicatory process under Chapter 841 

for determining a person’s predator status.

This is also consistent with this Court’s

decision in Ex Parte Jimenez, 361 S.W.3d 679 (Tex. 
32

Crim. App. 2012). The issue in Jimenez was whether

the defendant’s felon-in-possession-of-a-firearm 

conviction was “void” because the defendant later 

successfully challenged in a habeas corpus 

proceeding his predicate felony conviction (rape of 

a child) that established his status as a 

“convicted” felon in the firearm case. See Jimenez, 

361 S.W.3d at 681-82. This Court decided that 

Jimenez’ felon-in-possession-of-a-firearm 

conviction could not be “void” because he had the

status of a “convicted” felon when he possessed the 

firearm. See Jimenez, 361 S.W.3d at 682-684.

It is likely that this Court would have

decided this question differently in Jimenez had 

the State prosecuted Jimenez on the felon-inpossession-of-a-firearm charge while Jimenez’ 

appeal from the judgment in the predicate felony 

(rape of a child) was still pending, since this 

would prevent Jimenez from having the status of a

“convicted” felon when he possessed the firearm.
33

See Fletcher v. State, 214 S.W.3d 5, 6 (Tex. Crim. 

App. 2007) (i.e. A “conviction” from which an appeal 

has been taken is not considered a “final 

conviction” until the “conviction” is affirmed by

the appellate court, and that court’s mandate of 

affirmance becomes final). Similarly, a person

should not be considered to have the status of an

“adjudicated” sexually violent 

predator while his civil commitment appeal is still

pending.

Michael Wayne Bohannan’s case should also be 

instructive in construing the term “adjudicated.” 

Mr. Bohannan was convicted of one count of 

violating Section 841.085(a) and was assessed an

enhanced sentence of life in prison, based on 

multiple violations of a civil-commitment order 

that the Beaumont Court reversed in Bohannan’s 

appeal in the civil commitment case, because the 

trial court excluded the testimony of Bohannan’s 
34

only expert witness. (Bohannan’s civil commitment

case turned almost exclusively on the testimony of

two of the State’s expert witnesses.) See Bohannan 

v. State, 2014 Tex. App. LEXIS 11825 at **3-6 (Tex. 

App.—Beaumont, delivered October 29, 2014, no pet.) 

(mem. opinion). All of these violations occurred

during the pendency of Bohannan’s appeal in the

civil commitment case, and some of them even 

occurred after the Beaumont Court decided that 

Bohannan’s judgment in the civil commitment case 

should be reversed. See Bohannan, 2014 Tex. App. 

LEXIS 11825 at *4 (The Beaumont Court decided that

Bohannan’s civil commitment judgment should be

reversed on July 22, 2010, and Bohannan’s

indictment in the criminal case alleged that

Bohannan violated this civil commitment judgment on 

numerous occasions between February 14, 2009 and

April 24, 2011). The State did not re-prosecute

Bohannan in the civil commitment case upon

issuance of the Beaumont Court’s mandate in that 
35

case, apparently because of the life sentence

Bohannan received in the criminal case.

The Legislature could not have possibly 

intended for a person like Bohannan to be sent to 

prison for life for violating a non-final, 

reversed-on-appeal civil commitment order that no

one can be sure should have ever been entered in

the first place, because the trial court prevented

this person from presenting a defense when it 

excluded his only expert and because the State 

decided not to re-prosecute the civil commitment 

case once the State obtained a lengthy prison 

sentence in the criminal case. Construing the term 

“adjudicated” in Section 841.085(a) to include an

appeal and issuance of the appellate court’s

mandate would prevent this from happening in the 

future.

The Beaumont Court recently handed down an 

opinion that could be read as deciding that a 

person’s status as an “adjudicated” sexually 
36

violent predator when he violated the civil 

commitment requirements is a defensive issue and

not an element of the offense that the State is 

required to prove under Section 841.085(a). See 

Smith v. State, 2014 Tex. App. LEXIS 10117 (Tex.

App.—Beaumont, delivered September 10, 2014, no 

pet.) (mem. opinion). According to the Beaumont 

Court’s opinion in Smith, Smith filed a motion to 

quash his indictment, claiming (as Mr. Stevenson

does in this case) that he could not be criminally

prosecuted for violating a civil commitment order

that was non-final and still on appeal. See Smith, 

2014 Tex. App. LEXIS 10117 at *3. The Beaumont

Court, however, reframed this issue and decided,

“Smith’s argument that he was not required to 

comply with an order that had been appealed is a 

defensive theory that is not relevant to whether 

the indictment should have been quashed.” See

Austin v. State, No. PD-1431-14 (Tex.Crim.App.,

delivered March 18, 2015) (per curiam opinion not 
37

designated for publication) (court of appeals 

“erroneously re-framed the issue raised” when it 

should have addressed the argument that was 

actually raised).

The Beaumont Court’s opinion in Smith should 

have no precedential value in deciding the issue

presented here, as this decision did not address

this issue. With respect to the issue that it did

address, no claim has been made in this case that 

Mr. Stevenson “was not required to comply with an 

order that had been appealed.” The claim is that he 

cannot be criminally prosecuted for violating the

order. To the extent that the Beaumont Court’s 

decision in Smith could be read to suggest that the 

issue presented here is a defensive issue, this 

decision is contrary to well-settled law. See 

generally Giesberg v. State, 984 S.W.2d 245 (Tex.

Crim. App. 1998) (The case discusses what does and 

does not constitute a defensive issue).

Without any analysis or citation to any
38

authority, the Beaumont Court also stated in 

Bohannan’s appeal in his criminal case, for 

violating the civil commitment order, that Bohannan

violated this civil commitment order “at a time

when Bohannan had the status of a sexually violent 

predator.” See Bohannan, 2014 Tex.App. LEXIS 11825 

at *6. This statement, however, is dicta and of no

precedential value, as no issue of Bohannan’s 

status as a sexually violent predator (much less

an “adjudicated” sexually violent predator) was 

ever raised in that case, and this statement was 

not necessary to the decision in that case.

ARGUMENT QUESTION NUMBER FOUR

Question Number Four Restated: The trial court 

erred by denying Appellant’s motion to quash the 

indictment. (R.R. Vol. 2, p.4-11). 

At the time of the hearing on the motion, the 

commitment order was not final because it was on 

appeal. The analysis in this issue is the same as 
39

Questions Number Two and Three. Therefore, the 

argument will not be repeated. 

ARGUMENT QUESTION NUMBER FIVE 

Question Number Five Restated: The trial court 

erred by sustaining the State’s relevance motion to 

Appellant’s proffered evidence that the commitment 

order was on appeal. (R.R. Vol. 4, p. 68). 

At the time of the trial, the commitment order 

was not final because it was on appeal. The analysis 

in this issue is the same as Questions Number Two

and Three. Therefore, the argument will not be 

repeated. 

PRAYER

WHEREFORE, PREMISES CONSIDERED, Eric Dwayne 

Stevenson, Appellant, prays that the convictions be 

reversed and for whatever other relief he has shown 

himself entitled. 

Respectfully Submitted,

s/Scott Walker

_________________________

By: Scott Walker, Attorney 

222 W. Exchange Avenue
40

Fort Worth, Texas 76063

(817) 478-9999

(817) 977-0163

scott@lawyerwalker.com

CERTIFICATE OF SERVICE

A copy of this brief was delivered to the Office 

of the Criminal District Attorney, Tarrant County 

Courthouse, 401 W. Belknap, Fort Worth, Texas, and 

to the State Prosecuting Attorney, P.O Box 12405, 

Austin, Texas 78711 by first class mail on the 23rd

day of June, 2015.

s/Scott Walker

______________________

Scott Walker

CERTIFICATE OF COMPLIANCE

I hereby certify that I have complied with the 

font and word count requirements under Texas law 

pertaining to the filing of documents in appellate 

matters. This document contains 6,235 words.

s/Scott Walker

______________________

Scott Walker