### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00332- CV

In re Com m itm ent of Aaron Gipson

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -GN-1 7-0 0271 4, H ONO RAB LE MI CHAEL LY NCH, JUDGE P RESIDING

O P I N I O N

The State of Texas appea ls from the trial court’s final judgme nt based on a non-unanimous jury verdic t deter mining that Aar on Gipson is not a sexually violent preda tor (SVP).
See Tex. He alth & Safety Code § 841.062(a) (providing that judge or jury shall deter mine whether
person is SVP and providing for appea l from deter mination). The State raises two issues on appea l. First, the State arg

ues t hat because the Texas Health and Safety Code require s a jury verdic t to be unanimous when the jury “dete rmin[es] that the person is a sexually violent preda to r, ” see id. § 841.062(b), the verdic t must also be unanimous when the jury deter mines that a person is not

an SVP. Second, the State asser ts the trial co u rt er red in sustaining an “improper impeachme nt” objection when the State’s counsel asked Gipson on direc t examination at trial if he had asser ted his Fifth Amendment privileg e during his deposition, there by excluding evidenc e of Gipson’s previous Fifth Amendment invocations. Be cause we conclude that the State’s statutory const ru ct ion and evidentiar y arg uments are unavailing , we a ffirm the tria l court’s fina l judgment.I. LEGAL AND F ACTUAL BACK GR OUND This appea l arises ou t o f a c iv il c o mmitment proce eding to deter mine whether Gipson is an SVP. See The Civil Commi tment of Sex ually Violent Predators Act, 76th L eg ., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. L aws 4122, 4143–52 (codifie d as amend ed at T ex . Hea lth & Safety Code §§ 841.001–.153) (the SVP Act) . I n enac ting the SVP Act, the le g islature found:

that a small but extremely dang erous g roup of sexually violent pr edator s exis ts a nd that those preda tors have a behavior al abnorma lity that is not amena ble to traditional mental illness trea tment modalities and that makes the preda tors likely to eng ag e in repe ated preda tory acts of sexual violence.

. . . Thus, the leg islature finds that civil commitment proce dure for the long- term supervision and trea tment of sexually violent preda tors is nece ssary and in the intere st of the state.

Tex. Hea lth & Safety Code § 841.001; see In re C ommitment of Fisher , 164 S.W .3d 637, 639–40 (Tex. 2005 ). An SVP is define d as a “re peat sexually violent offe nder” who “suff ers from a behavior al abnorma lity that makes the person likely to eng ag e in a preda tory act of sexual violence.”
T ex . Health & Safety Code § 841.003(a)

. The State bear s the burden of proving “bey o n d a

rea sonable doubt” that a p er s o n i s an S VP

. Id. § 841.062(a)

. The SVP Act also sets forth the
proce dures and require ments for d et er m i n i n g whether a person is an SVP that should be civilly committed for long -term supe rvision and trea tment. See ge nerally id. §§ 841.002–.153.

Her e, the State filed an SVP civil commitment p e ti ti o n a g a in s t Gipson, who was close
to completing eig hteen y ear s of sentence tim e for his convictions for ag g rava ted s exual as s ault of

a child, sexual assault, and failure to comply with sex offe nder reg istration. See id. § 8 4 1

. 0 4 1 (setting forth require ments for petition). Both parties demande d a jury trial, and a four day jury trial

occur red in Ma rch 2018. See id. § 84.061(b) (providing for “jury trial on demand” ). On beha lf of

2the S tate, two doctors testi fied as expert wi t n es s es and Gipson testified as a fact wit ness. Gipson

also testified on his own beha lf, along with his sis ter a nd mother. During the State’s dire ct examination of Gipson, the following exchang e occur red, and the a ccompa

ny ing e videntiary

objection is at issue on appe al:
Q. [S tate’s counsel] You woul d sexually assault [y our daug hter] befor e her day car e?
A. [Gipson] I

wasn’t in her

life whe n she wa s in a day car e. Q. I s i t true, when y ou talked to us befor e, y ou pled the Fifth during y our deposition?
A. I never

confe ssed to touching my child, my daug hter. Q. But y ou pled the F ifth when we talked about this in y our deposition? [Gipson’s counsel]: Objection. Tha t’s improper impea chment.
THE COURT: Ask the question ag ain. [S tate’s counsel]: I asked if he pled the Fifth about this off ense when he talked about this before , Your Honor

. THE COURT: I ’m g oing to sustain the objec tion. Move on.

The other issue raised on appea l co n ce rn s the jury char g e. Gipson submitt ed a proposed jury

char g e that included the following instruction:

A “y es” answe r [t o whether Gipson is an SVP] must be unanimous; that means that all 12 of the jurors must ag ree to a “y es” answe r. A “no” answe r may be made if 10 jurors ag ree to it.

3Altho u gh t h e S VP Act dictates that “[a] jury deter mination that the person is a sexually violent preda tor must be by unanimous verdic t,” id. § 841.062(b), it also states that the Texas Rules of Civil Procedur e apply

to civil commitm ent proc eeding s unless they conflict with the SVP Act:

Ex cept a s otherwise pr ovided by this subsec tion, a civil c ommitm ent proc eeding is subject to the rules of proce dure an d ap p ea l for civil case s. To the extent of any conflict betwee n this chapte r and the rules of proce dure and appea l for civil case s, this chapter c ontrols.

Id. § 841.146(b). Wit h respe ct to the rules of civil proce dure g overning a jury verdic t, Rule 292(a)
states: “[A] v er d i ct m ay b e rende red in any cause by the concur renc e, as to eac h and all answe rs made, of the same ten or more members of an orig inal jury of twelve. ” T ex . R

. Civ. P. 292(a)

. Gipson’s proposed jury char g e applied section 841.062(b)’ s un a n im it y r e q u ir e me n t to a “ y e s ” answe r and Rule 292(a )’s ten or

more jury

member c oncurr ence require ment to a “no” answe r. At the jury char g e confe renc e following the State’s case in c hief, the State objected
to the instruction that p er m itted a non-unanimous “no” answe r, arg uing that the leg islature was “cle arly contemplating a unanimous verdic t” and that having “a criminal burden for a ‘y es’ but a civil burden for a ‘n o ’ is confusing , and I doubt that would be the intention of the leg islature at the time of cre ating it.” M o re o ver, the State arg ued that trial courts “have just g rante d the
12 unanimous” and “[t] here is no case law on point.” Gipson responde d first that the statute only addre ss es a “y es ” answe r, not a “no” answe r, and it is presumed that the leg islature includes or excludes words for a purpose; and second that even if the leg islature “mig ht not have intended” the result, “it is the result that is require d by the rea ding of the law until the time they elec t to chang e it.” The trial judge noted that he had done both way s in previous trials; he had also “looked for what

4I could -- any thing I could law-w ise, and there wasn’t a lot of g uidance ”; and h e concluded that apply

ing Rule 292(a) t o a “no” answe r was the “rig ht way to g o,” there by overr uling the State’s objection.

At the close of trial, the State reur g ed its objection to the jury instruction permitting

a non-unanimous “no” answe r, which the trial court ag ain denied. The court then instructed the jury that a “no” answe r to t h e S VP question “mea ns that at least 10 jurors ag ree the answe r to the question is ‘no,’” but a “y es” answe r “must be unanimous” and that “mea ns all 12 jurors must ag ree the answe r to the question is ‘y es.’” The jury returne d a ver dict signe d by ten of the twe lve j urors with a “no” answe r to the question of whether they found bey ond a rea sonable doubt that Gipson is an SVP. The trial cour

t rende red f

inal judgme nt on the verdic t in favor of Gipson. The State moved for a new trial, arg uing that the trial court “re jected lang uag e from the [S tate’s] proposed jury char g e that require d the jury to rende r a y es or no verdic t unanimously ” and instead provided an instruction permitting a non-unanimous verdic t in favor of Gipson. The trial court de nied the motion for new trial, and in an a ddendum to the orde r, stated:

Sec. 841.062(b), Texas Hea lth and Safety Code states that “A jury deter mination that the person is a sexually violent preda tor must be by unanimous verdic t.” No mention whatsoeve r is made con ce rni ng a neg ative verdic t. Sec. 841.146(b) states that ‘Except as otherwise provided by this subsection, a civil commitment proce eding is subject to the rules of proce dure and appea l for civil case s.[”] Rule 292, Texas Rules of Civil Procedur e allows for a 10-2 verdic t. The leg islature established a hy brid criminal/civil proce dure for this ty pe of case . This interpre tation cre ates no conflict in the law and is re asonable

. This appea l followed. See Tex. Health & Safety Code § 841.062(a) (providing for a ppeal)

.

5II. DISCUSS ION

A. Statutory C onstruction

I n its first issue, the State claims the trial court err ed by instructing the jury that a “no”

answe r requires o n l y t en members to ag ree and enter ing final judgme nt on a non-unanimous jury verdic t. “We revie w a trial court’s decision to submit or ref use to submit a particula

r jury instruction for an abuse of discretion.” City of Austin v

. Chandler , 428 S.W .3d 398, 413 (Tex. App.—Austin 2014, no pet.) (citing In re V.L.K. , 24 S.W .3d 338, 341 (Tex. 2000)). But beca use a trial court has

no discretion to misstate the law, we revie w de novo whether an instruction in a jury char g e misstates the law based on improper statutory construction. See St. Joseph Hosp. v. W olff , 94 S.W .3d 513, 525 (Tex. 2002). When interpre ting a statute to determine w hat the law is, our pr imary objective is to
g ive eff ect to the leg islature’s intent, and “the L eg islature expresses its inten t b y t h e wo rds it

en ac t s an d decla

res to be the law.” Bosque Disposal Sys., LLC v. Parker Cty. Appraisal Dist. , 555 S.W .3d 92, 94 (Tex. 2018) (quoting Molinet v. Kimbrell , 356 S.W .3d 407, 414 (Tex. 2011)).

Here, t h e p ar t ies do not dispute that the plain lang uag e of the statute require s a unanimous jury verdic t for an aff irmative SVP dete rm i n ati on, but they disag ree as to whether a unanimous verdic t is require d for a neg ative SVP deter mination—i.e., a deter

mination that a person is not an SVP. The State asser ts that section 841.062(b) require s a unanimous answe r for b o t h; Gi pson, on the other hand, asser ts that althoug h section 841.062(b) g overns aff irmative S VP

6determ i n at ions, Rule 292(a) g overns neg ative SVP deter minations, permitting a neg ative SVP deter mination by the concur

renc e of ten or more members of the jury

. See Tex. R. Civ. P. 292(a)

. 1
The State makes three arg uments. First, the S t at e arg ues that “the statute is ambig uous as to the require ments for a ‘no ’ verdic t” and statutory construction aids lead to the conclusion that the proper construction require s all verdic ts to be unanimous. See Tex. Gov’t Code § 311.023 (desc ribing statutory construction aids). Second, the State asser ts that “[a]lt houg h the
statute does not expressly addre ss the require ments of a ‘no’ verdic t, the unanimity require ment for

a ‘y es’ verdic t conflicts with the g ener al civil rule conce rning jury verdic ts, and reve als a leg islative intent that all verdic ts in these case s be unanimous.” Third, the State complains that to construe the
statute otherwise wo u l d l ead to absurd results. See Cit y of Rock wall v. Hughes , 246 S.W .3d 621,
625–26 (Tex. 2008) (“[W] e co nstrue the statute’s words acc ording to their plain and common meaning unless a contra

ry intention is appar ent from the context or unless such a construction leads

As the State notes, one of our sister courts has fac ed the issue of wheth er t h e t ri al court 1 err ed in its jury instruction that a verdic t must be unanimous as to either “y es” and “no” answe rs, but eac h time it declined to addre ss the issue, concluding that if err or exis ted, it was harmless. See In re Commitment of Picke ns , No. 09-14-00391- CV, 2016 WL 82 1 4 2 6 , at *3 (Tex. App.—Beaumont Mar. 3, 2016, pet. denied) (mem. op.); In re Commitment of Perez , No. 09-15-00126- CV, 2015 WL 8470522, at *7 (Tex. App.—B eaumont Dec

. 10, 2015, no pet.) (mem. op.); In re Commitment of Hatcher , No. 09-15-00068- CV, 2015 WL 6745399, at *3, *6 (Tex. App.—B eaumont Nov. 5, 2015, no pet.) (mem. op.). Howeve r, following the briefing to this Court, our sister court in For

t Worth expressly addre ssed this issue, holding that the j u ry should be instructed “that it may rende r a ‘no’ finding with 10 jurors’ concur renc e.” In re Commitment of Jones , 571 S.W .3d 880, 891 (Tex. App.

— Fo rt Worth 2019, pet. filed); see In re Commitment of M.A.C. , No. 04-18-00865- CV, 2019 WL 3208819, at *2 (Te x . App.—San Antonio J uly 17, 2019, no pet. h.) (mem. op.) (re v i ew i n g Anders brief and concluding that “the appea l is not wholly frivolous and there are arg uable g round(s) for appea l, including whether the trial court err ed in deny ing M.A.C.’s reque st for a jury instruction that the jury could rende r a verdic t in M.A.C.’s favor by a vote of 10-2”)

. 7to absurd results.” (citations omitted)). We consider eac h of the State’s arg uments in t u rn, but

ultimately

conclude that none of the m is persuasive.

1. Am biguit

y “As alway s, ‘[w] hen construing a statute, we beg in with its lang uag e.’” Abutahoun

v. Dow Chem. Co. , 463 S.W .3d 42, 46 (Tex. 2015) (quoting State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006)). The statute at issue states: “A jury deter mination that the person is a sexually violent preda tor must be by unanimous verdic t.” Tex. He alth & Saf ety Code § 841.062(b). A conclusion that the SVP Act provides asy mmetrical require ments for a “no” and a “y es” jury verdic t would not be an aber rant statutory scheme —death penalty case s have the same asy mmetrical require ments for verdic ts. See Tex. Code Crim. Proc. art. 37.071, § 2(d)( 2) (providing that “cour t shall char g e the jury ” that “it may not answe r any issue submitt ed under Subsection (b) of this article ‘y es’ unless it
ag ree s unanimously

and it may

not answer

any issue ‘no’ unless 10 or

more juror s ag ree ”).
At issue then is whether the statute’s lang uag e is ambig uous, such that its words y ield

more than one rea sonable interpre tation—e.g ., do its words rea sonably addre ss a “no” verdic t such that a conflic t ex i s t s b etwee n section 841.062(b) requiring unanimity for a “no” verdic t and Rule 292(a) permitting a “no” answe r from on l y t en o r more jurors. See Southwest Royalties, Inc.

v. Hegar , 500 S.W .3d 400, 405 (Tex. 2016) (“Whether statutory lang uag e is ambig uous is a matter of law for courts to decide , and lang uag e is ambig u o u s o n l y i f the words y ield more than one

rea sonable interpre tation.”). I f the sta t ute’s words are ambig uous, we will turn to rules of construction and extrinsi c statutory aids to deter mine the meaning of the statute and whether a conflict exis ts; if the statute’s lang uag e is clea r and unambig uous in only addre ssing a “y es” verdic t,

8not a “no” verdic t, we will e schew such aids. Greater Hous. P’ship v. Paxton , 468 S.W .3d 51, 58

(Tex. 2015) (“W e o n l y resor t to rules of construction or extrinsi c aids when a statute’s words are ambig uous.” (citing Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2009))) ; City

o f R ockwall , 246 S.W .3d at 626 (“When a statute’s lang uag e is clea r and unambig uous , i t i s inappropria te to resor

t to rules of construc tion or ext rinsic aids to construe the lang uag e.”)

. The State does not specific ally identify how any of the statute’s words y ield an alterna tive rea sonable interpre tation to construct a meaning other than that an aff irmative SVP jury deter mination require s unanimity —in fac t, the State admit s t h at t he statute does not “expressly addre ss” a neg ative SVP dete rmination. Neve rtheless, the State appea rs to be arg

uing tha t section 841.062(b), whic h provides:
[a] j u ry d et er mination that the person is a sexually violent preda tor must be by unanimous verdict
should be interpre ted to rea d:
[a] jury deter mination whether the person is a sexually violent preda tor must be by unanimous verdict.

Tex. Hea lth & Safety Code § 841.062(b) (empha sis added)

. But we cannot chang e the meaning of the statute by adding words to it or rea ding lang uag e into the statute that the leg islature did not put there

. See City of Rock

wall , 246 S.W .3d at 631 (“[C] hang ing the meaning of the statute by adding words to it, we believe, is a leg islative function, not a judicial funct i o n . ”) ; i d

. at 628 (“[B]y not

rea ding lang uag e into the statute when the leg islature did not put it there , we do not risk crossing the

9line betwee n judicial and leg islative power s of g overnme nt a s presc ribed by article I I of the Te x as

Constit ution.”); see also B a n kD i r ect Capital Fin., LLC v. Plasma Fab, LLC , 519 S.W .3d 76, 86 (Tex. 2017) (noting Texas Constitution re quires judge s to be “sticklers” in apply ing statutes—i.e.,
“not rew riting statutes under the g uise of interpre ting them” or “supplanting our wisdom for that of the L eg islature”)

. And the term “that” has a specific plain meaning , as demonstrated by dictionary
usag e, distinct from the term “whe ther.” See Texas State Bd. of Exam’ rs of Marriage & Family Therapists v. Texas Med. Ass’n , 511 S.W .3d 28, 35 (Tex. 2017) (noting “[t] o deter mine a statutory term’s common, ordinary meaning ,” courts “ty pically look first to their dictionary definit i o n s ”)

. Her e, “that” is “used as a function word to introduce a subordinate clause that is a noun equivalent.”
W ebster’s Third New Int’l Dictionary 2367 (2002). The subordinate clause at issue in the statute that is a noun equivalent is the phrase “the person is a sexually violent preda tor,” which does not include “the pe rson is not

a sexually

violent preda tor.” I n contra st, “whethe r” is “used as a func tion word

. . . to indicate

. . . alterna tive conditions or possibili ties.” Id. at 2603. Thus, had the leg islature used the word “whe ther,” it would imply a deter mination betwee n two alterna tive possibili ties—i.e., whether the person is or i s not an S VP. But we find no support for interpreting “that” contrar y to its plain and ordinary

meaning such that it would include the mea ning of “whe ther.” 2

The State also claims that section 841.062’s title “De termination of Predator Status” must 2 mean that when the statute “explicitly require s a unanimous verd i ct for commitment” it also “implicitly require s the same for non-commitment.” Howeve r, the Code Construction Act expressly states that “[t] he heading of a title, subtitl e, chapte r, subchapte r, or section does not limit or expand the meaning of a statute.” Tex. Gov’t Code § 311.024. Acc ording l y , t h e S t ate’s arg ument fails beca use it is not using the title to construe the statute, but to “expand the meaning ” by rea ding into 10The leg islature clea rly k n ows how to use lang uag e encompa ssing both aff irmative and neg ative jury deter

minations, as it has done so elsewhe re. See, e.g. , Tex. Fam. Code § 54.03(c) (“ J u ry verdic ts under this title must be unanimous.”). We must presume that the leg islature, b y choosing not to do so here and by using the word “that” instead of “whe ther,” did so purposef ully

. See Cit y of Rock wall , 246 S.W .3d at 628 (“I t is a rule of statutory construction that ever y word of

a statute must be presumed to have been used for a p u rp ose . . . [and] we believe ever y word excluded fr o m a s tatute must also be presumed to have been excluded for a purpose.” (quoting
Cameron v. Terrell & Garrett, Inc. , 618 S.W .2d 535, 540 (Tex. 1981))) ; see also Osterberg v. Pec a , 12 S.W .3d 31, 38 (Tex. 2000) (explaining that courts “should not pr esume to a dd” to sta tute when leg islature has demonstrated it “cle arly knew” how to add phrase in other parts of statute). Ag ree ing with our sister court, we there fore conclude that the section 8 4 1

. 0 6 2 ( b ) ’s lang uag e is not ambig uous. 3
See In re Commitment of Jones , 571 S.W .3d 880, 890 (Tex. App.—For t Worth 2019, pet

. fi l ed) (“This st at u t e unambig uously require s that the j ury must be unanimous in its deter mination that a
person is a sexually violent preda tor. But by its plain words, the statute clea rly does not require that the jury be unanimous in a de termination that a pe rson is not a sexually

violent preda tor.”).

the statute an “implicit[ ] require [m ent].” See Abutahoun v. Dow Chem. Co. , 463 S.W .3d 42, 47 n.4 (Tex. 2015) (“When the plain meaning of a statute controls, howeve r, ‘the title of the section car ries no wei gh t , as a heading “does not limit or expand the meaning of a statute.”’” (quoting W affle House, Inc . v. W

illiams , 313 S.W .3d 796, 809 (Tex. 2010))). To the extent that the State is arg uing tha t the scope of the statute i s ambig uous, not just 3 the statutory terms, the Texas Supreme Court has expressly direc ted that this is an improper inquiry : “the inquiry i s not whether the scope of a statute is ambig uous, but rathe r whether the statutory lang uag e itself is ambig uous.” Southwest Royalties, Inc. v. Hegar , 500 S.W .3d 400, 406 (Tex. 2016) (citing Texas De

p’t of Ins. v. Ame rican Nat’l Ins. , 410 S.W .3d 843, 853–54 (Tex. 2011)). 11Having conclude d the lang uag e of section 841.062(b) is not ambig uous, we will not

enter tain the State’s arg uments rely ing on rules of construction or extrinsi c aids. See Greater Hous. P’ship , 468 S.W .3d at 58; City of Rock wall , 246 S.W .3d at 626. Although the S t at e re l i es on multipl e nontext ual extrinsi c aids listed in the Code Constr u ct i o n Ac t , see Tex. Gov’t Code § 311.023, the Texas Supreme Court has expressly dictated that “plain lang uag e forbids open-e nded improvisation, including the nontext ual purposivi sm and consequentialism winked at in t he C ode Construction Ac t

. ” BankDirec t , 519 S.W .3d at 85. Thus, “‘[w]here text is clea r, text is deter minative,’” and “we are bound by the L eg islature’s presc ribed means (leg islative handiwork) , not its presumed intent (judicial g uesswork) .” Id. at 80, 86–87 (quot i n g E n tergy , 282 S.W .3d at 437). We there fore turn to whether the unamb i gu o u s s t atut e conflicts with the rules of civil proce dure.
2. Conflict
I t is undisputed that section 841.062(b) and Rule 292(a) conflict as to an aff irmative
SVP jury deter

mination, and there fore section 841.062(b)’ s unanimous jury verdic t require ment for an affirmative determination prevails. See Tex. Hea lth & Safety C o de § 841.146(b) (noting rules of civil proce dure g overn civil commitment proce eding s, except “[ t ] o t h e ex tent of any conflict betwee n this chapte r and the rules o f proce dure and appea l for civil case s, this chapte r controls”).
But the State arg ues section 841.062(b) and Rule 292(a) conflict as to a neg ative S VP j u ry deter mination. W e disag ree .

We cannot divine a nece ssary rea son that the numb er o f sufficie nt concur ring jury members for an aff

irmative jury verdic t must be the same as for a neg ative jury verdic t, nor has the

12State provided us with one. Moreove r, as mentioned previously , the verdic t r equire ments in de ath

penalty case s re q u i re a u n an i m ous verdic t for a sentenc e of death, while the vote of ten jurors is sufficie nt to return a verdict deny i n g a s en t en ce o f death. See Tex. Code Crim. Proc. art. 37.071, § 2(d)( 2); cf. In re Commitment of Jones , 571 S.W .3d at 890 (noting that leg islature require s unanimity for exemplary damag es awa rds but “only 10 jurors need to ag ree that exemplary damag es

are not war

rante d” (citing Tex. Civ. Prac. & Rem. Code § 41.003(d); Tex. R. C i v . P

. 226(a) , 292(b)) ). T he State attempts to distinguish this example by arg uing that “the Code of Criminal Procedur e expressly provides for non-unanimous verdic ts. Chapter 841 does not.” But by expressly stating that the Texas Rules of Civil Procedur e g overn when there is no conflict and by addre ssing only aff irmative jury verdic ts, Chapter 841 does exactly what the State say s i t d o es n o t

— i.e., it expressly provides for non-unanimous neg ative SVP jury verdic ts. We there fore conclude that there is no conflict betwee n section 841.06 2(b)’ s require ment for unanimous jury verdic t as to an aff irmative SVP deter

mination and Rule 292(a) ’s allowanc e for the concur renc e of ten or more jury members to suff

ice f or a ne g ative SVP determination.

3. Absur dity Finally , the State arg ues that this re s u l t wo uld lead to an absurd conclusion. The
State’s absurdity arg ument is inchoate, but its arg ument appea rs to be as follows: it i s ab s u rd to “re quire a unanimous verdict to civilly commit a sexually violent preda tor but allow the per son to avoid supervision and trea tment with a split jury vote” beca use the “public’s interest is best serve d by a rea sonable and just require ment of a unanimous jury verdic t” and “[h] olding otherwise puts the

conce rns of the individual over the conce rns of society .” See Tex. Gov’t Code § 311.021(5) (stating

13presumption of leg islature’s in t en t in enac ting statutes that public interest is favor ed over private

interest). Howeve r, eve n if we w ere to conclude tha t this result favors priva te intere st over public interest—ther eby rebutting the presumption presc ribed in the Code Construction Act—we fail to see how “the proce ss and result called for by the plain lang uag e of the statut e i s i l l o gi ca l , much less absurd.” See City of Rock wall , 246 S.W .3d at 627–28; see also Combs v. Health Care Serv. Corp. , 401 S.W .3d 623, 630 (Tex. 2013) (“I f an as-wr itten statute leads to patently nonsensical results, the ‘absur dity doctrine’ comes into play , but the bar for rew orking the words our L eg islature passed into law is hig h, and shoul d be. The absurdity safe ty valve is rese rved for truly exceptional case s, and

mere oddity

does not equa l absurdity .”). The State a

ppear s to have dra

wn its absurdity

arg ument from a c ase de cided by the Supreme Court of I owa, which the State claims is the only cour t t h at “has direc tly addre ssed the

same issue now befor e this Court.” See In re Detention of W illiams , 628 N.W.2d 447, 454–55 (I owa 2001). The I owa SVP statute at the time of W illiams is near ly identical to section 841.062(b) and
states: “I f the deter

mination that the responde nt is a sexually violent preda tor is made by a jury , the deter m ination shall be by unanimous verdic t of such jury .” I owa Code § 229A.7(3) (1999). I n interpre ting section 229A.7(3), the I owa Supreme Court reje cted Wil liams’s arg ument that section 229A.7(3) gove rns onl y aff irmative S VP deter

mination and that neg ative S VP deter minations are
g overne d by I owa’ s Rule of Civil Procedur e 203(a) , which permit s non-unanimous jury verdic ts. W illiams , 628 N.W.2d at 454–55 (noting that “Willi ams succe ssfully arg ued in advanc e of trial that, if the rules of civil proce dure apply , rule 203(a) should permit a jury to find by a vote of seven to one that the re spondent is not an SVP”). I n a cur sory

statement, the I owa Supre me Court asser ted:

14There is only one issue on trial in a case like this—whether the responde nt is a

sexually violent preda tor under section 229A.7(3). Given that fac t, and the fac t that commitment require s a unanimous verdic t, we think it would be absurd to conclude the l egi s l ature intended to permit a less-than-una nimous verdic t to rele ase the responde nt. Such a re sult finds no support in t his leg islative scheme.

Id. at 455. We find this rea soning inadequa te, lacking both t ex t u al analy sis and any substantive
arg ument reg arding absurdity

. But even wer e we to ag ree with this rea soning, the Texas leg islative scheme , in contrast to the I owa leg islative scheme, pr ovides support for such a result by expressly stating the rules of civil proce dure a pply

. See Tex. Health & Safety Code § 841.146(b). The only ref ere nce to applicable rules for the SVP hear ing in the I owa statutory scheme at the time of W illiams provided: “At the hear ing on this [S VP] i s sue, the rules of evidenc e applicable in criminal cases shall apply [.] ” I owa Code § 229A.7(1) (1998) (e m p h as i s added)

. Acc ording ly , we neither ag ree with the rea soning in W

illiams nor find it applicable to the interpre tation of section 841.146(b)

. Having conclude d that the State’s ambig uity , conflict, and absurdity arg uments fail,

we overr ule the State’s first issue and turn now to the State’s second issue reg arding the exclusion of evide nce.

B. Exclus ion of

Evid ence I n its second issue, the S tate arg ues t hat t he trial c ourt err ed by excluding evide nce that Gipson invoked the Fifth Amendment when questioned at his deposition reg arding committing

a sexual offe nse against his daug hter. Rulings on exclusion of evidenc e are revie wed under the abuse of discretion standard. Caffe Ribs, Inc . v. State , 487 S.W .3d 137, 142 (Tex. 2016). “A trial
court abuses its discretion by failing to follow g uiding rules and principles.” Id

. Be cause “[t] he trial

15court ha s ext ensive discr etion in evidentiary ruling s, . . . we will uphold decisions within the zone of rea sonable disag ree ment.” Diamond Offshore Servs. Ltd. v. W illiams , 542 S.W .3d 539, 545 (Tex. 2018). “F or the exclusion of evidenc e to constitute reve rsible err or, the complaining party must show that (1) the trial court commit ted error and (2) the err or probably ca u s ed t h e re n dition of an improper judgme nt.” State v. Central Expressway Sign Assocs. , 302 S.W .3d 866, 870 (Tex. 2009);

see Tex. R. App. P. 44.1. I n deter mining whether any err or p ro b ab l y caused the rendition of an improper judgme nt, “we must revie w the entire rec ord.” Gunn v. McCoy , 5 5 4 S.W .3d 645, 668 (Tex. 2018). I mportantly , reve rsal is only appropr iate if the err or probably resulted in an improper judgme nt be cause “a litigant is not entitled to a perf ect trial for, indeed, few trials are perf ect.” Id

. (quoting Lorusso v. Membe rs Mut. Ins. , 603 S.W .2d 818, 819–20 (Tex. 1980)).

I n a ci v i l case , a fac t finder may draw rea sonable infere nces from a party ’s invocations of the Fifth Amendment. See T ex . R

. Evid. 513(c) ; see also Baxter v. Palmigiano , 425 U.S. 308, 318 (1976); W ilz v. Flournoy , 228 S.W .3d 674, 677 (Tex. 2007) (per curia m); Lozano

v. L o zano , 52 S.W .3d 141, 150 (Tex. 2001) (per curiam) (Phi llips, C.J ., concur ring ); Texas Dep’t of Pub. Safety Officers Ass’n v. Denton , 897 S.W .2d 757, 7 6 3 (T ex . 1995); W ebb v. Maldonado , 331 S.W .3d 879, 883 (Tex. A pp.—Dallas 2011, pet. denied)

. But “[a]lt houg h the jury [i s] fre e to 4
draw a neg ative infere nce, a ‘cla im of privileg e is not a substitut e for rele vant evidenc e.’” Matbon,
Inc. v . Gries , 288 S.W .3d 471, 489 (Tex. App.—Eastland 2009, no pet.) (quoting United St ates v. Rylander , 460 U.S. 752, 761 (1983)) ; see also Lozano , 52 S.W .3d at 149 (Philli ps, C.J ., concur ring );

The State does not cite any auth o ri t y apply ing this doctrine in civil commitment 4 proce eding s, but for purposes of this analy sis, we assume without deciding that the doctrine applies. 16W

ebb , 331 S.W .3d at 8 8 3 ; B l a ke v. Dorado , 211 S.W .3d 429, 433 (Tex. App.—El Paso 2006, no pet.). Wit hout some other probative evidenc e, any neg ative infere nce draw n from a party ’s invocation of the Fifth Amendment cannot rise bey ond “mer e suspicion,” and the infere nce “could
not be considere d as evidenc e at all.” Matbon , 288 S.W .3d at 489–90; see Lozano , 52 S.W .3d at 149 (Philli ps, C.J ., concur

ring ); W ebb , 331 S.W .3d at 883; Blake , 211 S.W .3d at 434.
As an initial matter, Gipson claims the State did not prese rve err or as to this issue of excluded evidenc e. Rule 103 permits a party to claim error “ o n l y i f the error affe cts a subst antial rig ht of the par

ty and . . . a pa

rty informs the cour

t of its substance by an offer of proof, unless the substance was apparent from the contex t.” Tex . R. Evid. 103(a)( 2). I t is undisput ed the State did not submit an off

er of proof, but the State arg ues the substance was appar ent from the context. At trial, Gipson responde d to the previous question re g arding sexually assaulting his daug hter be fore her day car e with “I wasn’t in her life when she was in a day car e” and “I never confe ssed to touching
my child.” Thus, the State’s question in context was “ if [Gipson] pled the Fifth about this off ense [i .e., sexually assaulting his daug hter] when he talked about this befor e [at his deposition] ,” and the substance of the evidenc e was appar ently Gipson pleading t h e Fi ft h about this offe nse at his deposition. Assuming without deciding that err or was prese rved, we never theless conclude that it would not be re versible e rror for the f ollowing r easons.

1. Cum ulati ve Ev idence
I t is the State’s burden on appea l “to indicate to which issue eac h particula r piece of excluded evidenc e perta ins and whether the judgme nt on that i s s u e turned on the excluded evidenc e.” Cantu v. Texas W orkforce Comm’n , 145 S.W .3d 236, 245 (Tex. App.—Austin 2004, no

17pet.). I n its opening brief, the State arg ues that Gipson g ave “ inconsistent versions of eve nts” and

the testify ing experts “we ighe d his inconsistencies into their opinions.” Thus, acc ording to the State, “the jury should have known tha t [Gipson] continued thos e inconsist encie s during this civil case ” and without knowing of Gipson’s “re peate d asser tions of the Fifth Amendment during deposition,” the jury “could not c onfirm the experts’ conclusions” that we re based on Gipson’s inconsistencies and “they could not draw infere nces adver se to [Gipson] .” Howeve r, as the State noted an d our revie w of the rec ord reve aled, the State’s expert witnesses explained a nd discussed the documents that they relied on for their opinions—including interviews with Gipson and their revie w of Gipso n ’s d e p o s it io n te s ti mo n y

—and testified about inconsistencies in Gipson’s acc ounts. Although the Texas Supreme Court has re cog nized “‘the impossibi lity of establishing a specific test for deter mining harmful err or,’” consistently it has explained that “[e]x clusion is likely harmless if the evidenc e was cumulative.” Gunn , 554 S.W .3d at 668 (quoting Caffe Ribs , 487 S.W .3d at 145). We conclude that the evidenc e here is cumulative as to the S tate’s point that Gipson made “inconsistent versions of events,” and ther efor e that it is unlikely to have c aused the rendition of an imprope r judg ment. 5

Moreove r, the State spec ifically asked its expert to explain what Gipson had sa id during 5 his deposition reg arding the alleg ations that he committed a sexual offe nse ag ainst his daug hter, to which the expert replied: “He said that nothing happene d, that he disputed that -- that she had even

-- that she persona lly made alleg ations or that there was any substance to them. He said that he never did any thing with her

of a se x ual manner .” 182. Lack of P robative Evidence
I n its reply brief, the State arg ues that “the jury could have inferr ed from [Gipson’s] Fifth Amendment asser

tion that he [commi tted a] sex u al [ ] o ff en[se] ag ainst [hi s daug hter].” At 6 trial, the State’s expert witness explained that one of the rec ords he revie wed was a letter written to Gipson’s parole board from the mother of Gipson’s daug hte r , w h ic h in d ic a te d G ip s o n’s daug hter was

an unadjudicate d victim of Gipson, but also stated that later, when the daug hter was interviewe d and

rec orded, “she didn’t make the alleg ations under those circ umstances, [] she made these alleg ations just specific ally to the mother.” The State’s expert also testified that the only “evide nce whatsoeve r that any offe nding took place ag ainst [Gipson’s daug hter]” was the letter written by the daug hter’s mother, and the expert had not seen a ny other e vidence of an offense ag ainst the daughter nor any

rec ords of the da

ug hter a ccusing

her f ather

. Howeve r, althoug h t h e S t at e’s expert testified as to the letter from the mother of Gipson’s daug hter that indicated Gipson may have committed a sexual offe nse ag ainst his daug hter, the letter was never admitted into evidenc e and State’s counsel asser ted “my expert is not testify ing to the truth of the matter,” rathe r “[h] e’s testify ing to what he revie wed and relied upon in f orming his opinion in the case .” Fur ther, the trial court provided a limit ing instructi on to the jury that

To the extent this constitutes a new arg ument, the State cannot raise it for the first time in 6 the reply brief. See Tex. R. App. P. 38.1, 38.3; Cebcor Serv. Corp. v. Landscape Design & Constr., Inc. , 270 S.W .3d 328, 334 (Tex. App.—Dallas 2008, no pet.) (par ty may not prese nt arg uments for fi rs t t i m e i n reply brief) ; Howell v. Texas W orkers’ Comp. Comm’n , 143 S.W .3d 416, 439 (Tex

. App.—Austin 2004, pet. denied) (“The rules of appellate proce dure do not allow an ap p ell ant to include in a reply brief a new issue in response to some matter pointed out in the appellee ’s brief but not raised by appellant’ s orig inal brief.” ). Neve rtheless, leaving as i d e t he question of briefing waiver , we c onclude that ther e wa s no reve rsible er ror. 19hear say information relied upon by an expert is not to be consider ed “f o r an y other purpose, including whether the fac ts alleg ed in the rec ords are actua lly true” and in discussion with the 7 State’s counsel, re q u es t ed t hat t he ex pert should “[j] ust make sure t he jury knows that [t he letter]

came from the mother [of Gipson’s daug hter], a lleg edly throug h her, so that we know that it’s like hear say -- only hear say almost, so the jury knows that.” Acc ording ly , the expert’s hear say testimony admitted under a limit ing instruction that addre ssed a letter that was never introduced into evidenc e does not constitute probative evidenc e as t o whether Gipson committed a sexual offe nse ag ainst his daug hter. The State fails to identify any other probative evidenc e besides Gipson’s invocation of the Fifth Amendment to support its claim that Gipson committed a sexual offe nse ag ainst h i s daug hter, nor has our revie w of the rec ord rev ea l ed s uch evidenc e. Moreove r, at trial, Gipson
repe atedly denied committing a sexual offe nse ag ainst his daug hter, asser ted that he was never alone with his daug hter, and testified that he had “[j] ust lear ned” that he had been acc used of committing

a sexual offe nse ag ainst his daug hter. Fur ther, Gipson’s sister testified that the family was planning for Gipson’s rele ase from prison and Gipson’s daug hter supports Gipson. Acc ording ly , had the jury hear d the excluded evidenc e that Gipson invoked the Fifth Amendment, a neg ative infere nce from the evidenc e could not rise “bey ond mere suspicion” and the “infe renc e could not be considere d as evidenc e at all” that Gipson committed a sexual offe nse aga i n s t his daug hter. See Matbon ,

The full instruction sta ted: “He arsa y evidenc e ordinarily would not be admissible in this 7 trial , b u t beca

use t he ex pert witness relied upon these recor ds in forming the basis of hi s opinion, y ou can hear ab o u t t h es e records for t he very narr ow purpose of an explanation or support for his opinions, how he came about his opinions. You may not consider this hear say information for any other purpose , including w hether the fa cts alleg ed in the re cords a re a ctually

true.” 20288 S.W .3d at 490; see also W ebb , 331 S.W .3d at 883. We there fore conclude that even if the trial
court had abused its discretion in excluding the evidenc e, which we do not decide here , the excluded “evide nce” did not rise “bey ond mere suspicion” and is unlikely to have cause d the rendition of an improper judg ment. We overrule the State’s sec ond issue.

CONCLUSION Having overr

uled the State’s issues on appea l, we aff irm the trial court’s final judg ment.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Goodwin, B aker , and Smith Affir med Filed: Jul y

26, 2019

21