## In the Court of Appeals Second Appellat e District of Texas

at Fort Worth

__________

________ __ _______ No. 02

- 19

- 00033

- CV

___________________________

O n Appeal f

rom the 16th District Court Denton County, Texas Trial Court No. 18

- 1648

- 16
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wom ack 

### I N RE 

### : THE 

### C OMMITMENT OF 

### J USTIN 

### S HELTON2 MEMORANDUM OPINION
I
. I NTRODUCTION In f our issues, appellant Justin Shelton appeals the trial court ’ s order that he be committed as a sexually violent predator

. Specifically, Shelton argues (1) that the State committed fundamental error by allowing him to enter into a plea agreement for a
lo w
- leve l sentence for the purpose of commencin g th is commitment proceeding to detain him indefinitely ; (2) that the trial court pre vented him from fully presenting
defens ive theories when it sustained the State ’ s o bjection to his closing argument ; (3) that th e trial cour t erred by granting a partial di rected verdict ; and (4) that the trial

court erred by refusing to include his request ed charge that the jury could a cquit him
on le ss than a unanimous jury. W e wi ll a ffirm.
II. B ACKGROUND Shelton has been co nvicted of six sex offenses. In 2 004, when he was twenty,
Shelton was convicted of two counts of sexual assaul t against a fifteen

- year

- old girl

. In 2015, when he was thirty, Shelton was convicted of two more se xual assaults against a fou rteen

- year

- old girl

. While he was serving his sentence for the second set of convictions, the State petitioned to have Shelton declared a sexually violent predator under Chapter 841 o f the Health and Safety Code. See Tex. Healt h & Safety Code Ann. § 841.003. After the f il ing of the State ’ s petition but prior to a tr ial being held, Shelton ’ s biological daughter made an outcry that Shelton had sexually assaulted
her when she was between the ages of nine and ele ve n. The Stat e wit hdrew it s3

commitment petition and enter ed into a plea agreement wit h Shelton wherein he pleaded guilty to indecenc y with a ch ild by contact (touching his daughter ’ s breast) and aggravated sexual assault (digitally penetrating h is daughter ’ s sexual org an).
Shelton ’ s plea was that he serve five years ’ confinemen t. Shelton was scheduled to be
released from incarc eration on November 15, 2019. After Shelton entered his plea agreement with the State, the State r e

- filed these commitm ent proceedings. A jury
tri al was held on November 6, 2018.
A. Dr. Sheri Gaines Testifie d At trial, p sychiatrist Dr. Sheri Gaines testified that, among other areas of psychiatry, she ha d practiced forensic psychiatry for twenty

- eight years and that sh e had ev a luated approxi mately 135 individual s for civil

- commitment cases. As part of
her evaluation of Shelton for this case , she met with Shelton for roughly three

- and

- a
half hours , and she re viewed numerous documen ts related to his criminal and
ps ychological histories. One of the d ocuments she reviewed was a report from a psychologist who evaluated Shelton when the State originally petitioned for Shelton’s

co mmitment in 2015. Gai n e s testified that the psychologist who wrot e the report
concluded that Shelton has a behavioral abnorma lity ; Gaines agreed. Gaines explain ed that Shelton d isplayed two major risk factors: sexual deviance and ant isocial
behavior

. Gai nes said that she diagnosed Shelton sexually deviant because he had been convicted of numerous sexual offenses, once ag ainst a prepubesc ent child and others against postpubescent children. Gaines identified these acts as sexually deviant4

becaus e they are illeg al , and prepubescent an d pos tpubescent children do not possess the brain maturity to be able to co nsent to sex. Gaines further averred that the fact that Shelton quickly violated his community supervision 1 terms after his first conviction indicated a n inability by
Shelto n to follow soc ial rules, typical of antisocial behavior. After Shelton’s community supervision was re voked, he went to prison wh ere he attended an eighteen

- month sexual

- offender progra m. Gaines said that the r ecords indicated th at although he part

icipat ed in the program, his treatment provider expressed concern that Shelton was not showing evidence of in ternalizing the things he was learning.
Gain e s said that after Shelton w as released from prison , he failed to con tinue

sex

- offender tre atment despite recommendations to do so . Instead, Shelton committed another two sexual assault offenses, this time wit h a fourteen

- year

- old girl.
Gaines said t hat in addition to him having comm it ted the tw o sexual assaults, this episode by She lton w as disturbing because it appeared that Shelton and the victim had exchanged sex

- based text messages as well a s text messages talking about killing the girl’s mother i n order for her and Shelton to be to gether. Gaines also said tha t Shel ton ha d been inconsistent , and at times outright disingenuous , throughout the
years about what actually transpired between him and the girl , at times claiming that

1 Shelt on ’ s v

iolations of community supervision included f ailure to report as a sex offender, drug use, and being in the presence of a child un der the age of eighteen

.5

the sexual acts were c onsensual. According to Gaines, this behavior demonstrated
both a ntisocial behavior and sexual deviancy.
Gai nes explained that after Shelton’s offenses against t he fifteen year old and
the fourt ee n year old, Sh elton’s sexually deviant beh avior broadened in rang e in that he began to sexually abuse h is own prepubescent daughter when she was between the
ages o f nin e and eleven. 2 Another risk factor that Gaines described Shelton as disp la ying was that he would groo m his victims by providing them with drugs and acting as a father figure to them. She also said that Shelton sees himself as the v ictim
of circumstances rather than someone who did so mething wrong and that he believ ed
his sexual acts with the two post pube scent gir ls had a positive im p act on them and helped straighten out th eir lives. Gaines stated that with regard to She lton ’ s daughter, Shelton maintained that
there were innoce nt reasons for the actions that le d to him pleading guilty to indecency with a child and aggra vated sexual assault of a child. According to Gaines,
Shelton sexualize d his daughter and expressed that he like d the way his d aughter
looks , an d he used very crude word s to describe her gen i t alia. At one point in sex

offender treatment, Sh elton quo ted a passage of the Bible that h e said made it “ okay
to have sex with [one ’ s own] daugh ter i n order to keep [one ’ s] bloodline goin g. ”

2 Gaines also testified that Shelt on ’ s ex

- girlfriend ’ s da ughter had rep orted
a llegat ions of abuse a f

ew days before trial that allegedly occurred when the girl was thirteen years old

.6

Gaines also said that Shel to n displayed manipulative and antisocial behavior while
incarcerated

— for instance, he would send letters to his d augh ter stating that if she told anyone what had transpire d betwee n the m , he would kill himself.
Gaines said that Shelton’s continued recidivism indicat ed a “ huge risk factor ” in her diagnoses because it d emonstrated that S helto n suffered fr om “pe rs iste nce after punishment” behavior and that this indicated that Shelton was at a future risk to offend again. Gaines said that her sexual

- deviant d iagnosis of Shelton is that he experiences “pedophili c disorder.” Gaines test if ie d th a t t his is a life long disorder and that Shelton was at high risk to offend again. She also said that in making this diagnosis she took into accou nt that Shelton had sexually assaulted a child between the ages of nine and eleven a s wel l as ot he r vi ctim s who were thirt een, fourteen, and fifteen. Gaines said that it was not only the offenses against his daughter that led to her diagnosis but rathe r the “ whole picture ” of Shelton that she had developed f rom meeting with him and exa mining hi s his to ry . Pe rtain ing more to her antisocial

- personality

- disorder diagnosis, Gaines said that unlike most individuals that she had assessed, there was a larg e amount of evidence from Shelton’s pubescen t past that indicated he had suffer ed from t he
d isorder for some tim e. S pecifically, Gaines said that Shelton had run away from
home multiple times a s a teen, been suspended f rom school, and spent t ime in j uvenile detention twice when he was thirteen for two separate bu rglaries of
habitati on s. Gaines averred that Shelton ’ s an ti social behavior continued into7

adulthood and that Shelto n had a history of drug use, domestic violence, and c riminal mischief, including slashing tires, haras sment, and r etaliation. Gaine s also said t hat Shelton has a poor employ ment history

— he had been fired from multiple jo b s
— and
that this instability was another recidivism risk factor

. By Gaines ’ s account, Shelton ’ s antisocial per sonality disord er ha s not dim in ished over time and indica te s a predisposition to commit t ing more sexually violent off enses . Gaines also st at ed tha t Shelton ’ s pe rsistent drug use is a risk factor for hi m to reoffend

. Ga ines expressed

concerns that Shelton does not have a support syst em and that he does not see
himself a t risk to reoffend

. B. Shelton Testifie d
The S ta t e called Shelton to testify at trial. He adm it ted that he had not been

t ruthful in multiple deposi tions in the past year nor in multiple psy ch olog ical
evalu ations

. Shelton averred that he began to have problems with authority figures when he was young b eca use his stepfather had abused him. Sh elton recalled how he
had been s uspen d ed from school at age nine and had lat er b een ex pelled

. He said that
he be gan to use illegal substa nces around the age of twel ve and that th e first drug he
used was heroine , th at he had tried cocaine, but that his preferred drug of c hoice during his young er years was marijuana but later methamphetamine

. He justified his two juvenile bur glary adjudications by claiming he was attempting to retrieve his keys from his neighbor s ’ ho use once and merely closing the wind ow for his neighbor the
second time

. A rou nd the time he turned twenty , h e was jailed for shop lif ting,8

harassment, and criminal trespass ; after he had sexually assaulted the fifteen year old
in 200 4 , he was arrested fo r a m yri ad of offenses inc l uding crim inal mischief,
domes tic assault, and re tali ation.
Shelton described himself a s a “ recovering addict ” and blamed illegal drugs for his past criminal history

. Shelton said that when he used methampheta mine , it made
hi m see women a s “ sex objects

. ” H e admi tted that in the past, when being evaluat ed or deposed, he had claimed that he did not have a drug problem and was merely
someone who chose to use them. Shelt on testified that he would no longer have an
issue w ith met ha mph etamin e if he wa s released because he did not “ plan on pu tt ing [h imself] in that position to be tempted. ” Shelton said tha t in the past he had claimed
that God had inter

v ened and taken his desire for d rugs away but admitt ed that after making suc h a c la im he had written a friend that he had a cra vi ng for “ dop e. ” According to Shelton, he has suffered from depression most of his life and has experienced an ger i ssues. But Shelton cl aimed at trial that he had le t go of his ang er i ssues during a three

- d ay re treat in 2017. In discussing his 200 4 sexual assault of the fifteen year old , Shelto n claimed that he thoug ht she was older than she was

. Shelton denied th a t multiple peo ple had

warne d him of how young the girl was prior to Sh elton ’ s having sexual ly as saulted her.
He testified that it was “ possible ” that h is sexual assault of the girl h e l ped the gir l ’ s life
turn out be tter. Shelton stated that he pur pose ly vio lated the conditions o f his community supervision and was sent to pr is on.9

Shelton adm it ted that after being released from pr ison, he “ fell right back into ”
his old lifes tyle and groomed and later sexually assaulted the fou r teen year old girl in
2013

. He also said that when he did sexua lly assault the girl, she was high on drugs.
Contrar y t o Gaine s ’ s testimony, Shelton denied ever havi n g sent messag es to the girl suggesting th at her mothe r would have to die in order for the two to be together, but
did admit that the girl had “ vent[ed] ” to him about want ing t o kill her mother. By
Shelton ’ s a cc ount, h e and the fourteen year old had discussed running away together. Shelton pleaded guilty to two counts of sexu al assault and was assessed three years ’
incar ceration for each c ou n t, w ith t he sentences to run concurrently

. Regarding his daught er ’ s outcry , Shelton denied ever inapp ropri ately touch i ng h is d au ghter , instead claiming that her allegatio ns of abus e stemmed from one
incident where he intenti on ally tried to clean her genit alia and from another inc ident
of “ horse play[.] ” H e admitted , ho w ev er, that aft er the allegations agains t his daug hter came out, he wrote her from pris on and said that if he w as convicted of her allegations he would prefer to die than stay in prison

. He also wrote his mot her during the s ame time an d s aid that S atan ha d p ut words in his daugh te r ’ s mind

. Despite his denials, Shelton admitt ed at trial that he had once reported during therapy that he w as “ triggered ” b y seeing his daughter naked and by having seen h er

“ vagina s pread wide open. ” In a r ep ort of h is “ S exu al Ab use Offense Cycle On [his daughter ] , ” Shelton wrote about how he had groomed his dau ghter for the abuse and
how he had manipulated the people aro und him so that he wo u l d have time alone10

with her. Wh en t he Sta te questioned Shelton about the repor t, h e a dmitted that he
h ad wri tten these things in the r eport but claimed that he h ad done so because his treatment provider had said that he needed to make himself lo o k like a “ monster
. ”
Shelton averred that h e has ne ver been sexually attracted to his daught er . In 2017, while still incarcerated, Shelton p leaded guilty to indecency with a child by contact and aggravated sexual assault of his daughter , an d he received

concurrent five

- year sentence s . The judgment s re flect that Shelton received more than tw o y ea r s credit for time served

— time that Shelton would have been in prison
d ue to his sexual assaults of the fourteen year old. At tr ial, Shelton also agreed that
Child Protecti ve Service s had br iefly investigated him previously for sexually abusing his daug ht e r and stepda ughter , but Shelton alleged he could not remember what the

ex ac t complaint wa s. Shelton also confi rmed that the daughter of his girlfriend had

r ecently made sexual

- assaul t allegations again st him. Although Shelton ag reed that he would ben ef i t from general therapy if he were
release d , he a gain averred that he no longer struggled with cont rolling his sexual
desires

. He fu rther st ated t hat he felt th at children would be safe around him, but he
would not fee l safe being alone with a ch ild fo r f e ar of false accusations against hi m. C. Dr. Da rrel Turner Testifie d
C li nical and forensic p sychologist Dr. Darrel T ur ne r test ified for the State.
Turner testified that he was not the ini tial psychologist to evaluate Shelton regarding his psycholog

ica l condi ti ons ; rather, he was assigned to asses s Shelt on aft er the State11

d ismisse d its initial Chapter 8 41 case, p le a
- bar gained with Sh elton , and the n re

instituted these proceedings. Although he determines in 65 to 75% of commitment

assessments that th e s u bject does not have a behavioral abnormality, Tu rner said that
in this case Shelton d oes. Like Gaines, Turner testifi ed that he examined a p acket of information regarding Shelton before personally assessing him. Specifical ly , Turner said that he

rev iew e d details of Shelton ’ s off enses, “ witness statements, polic e repo rt s, any

s tatements [ ] made by [S helton] at that time [of the offenses] , court documents,
official documents,

. . . information about his adjustment since he ’ s been incarcerated
in th is case , ” and emails a nd letters Shelton wrote. Tu rner d ef ined a b e havio ral abnormality as “ something that prevents that person from being able to control their
behavior as it relates to sexual drive, deviant sexual in terest [,] a nd victimizing other
peop le. ”
T urner said that he evaluated Sh elton tw ice. The first time he evaluated
Shelton was brief because Shelton exercised hi s right not to participate in the
evaluation

. The second inte rv iew last ed close to two

- and

- a
- half hours. Turner expla ined the r isk fact ors that h e utilized in diagnosi ng Shelton. Turne r said that t he

“ two risk factors that correlate most with sexual recidivism are the presence of
antisocial personality ch aracteristics and behaviors and sexually deviate i nterests that

wo uld requir e vi ctim ization in o rder to satisfy ” and that Shelton disp layed both of
these risk factors as well as others. Turner described Shelton as currently being12

sexually d eviant (as opposed to a p ast condition) , and he st ated that Shelto n ’ s condition was “ chroni c . ” Muc h like Gain es had do ne, Turner chronicled Shelton ’ s criminal convictions for offenses against young and pre pubescent girls. He also
discus se d other accusations that did not lead to criminal c onvi ctions and explained
that t h o se accusati on s were i mp orta nt f or a proper evaluatio n of Shelton. Regarding Shelton ’ s conviction for sexual assault of the fifteen year old, Turner
said t ha t in addition to the two cha rges that Sh elton was c onvicted of (inte rcourse with a n d performing o ral sex upon the complai nant ) , t he comp lainant d escribed
sexual experiences with Shelton that “ occurred multiple times over several months. ”
Turner said that Shelton ’ s conduct with the girl was cons id ered sexually deviant
because sh e was unab le to cons ent to the acts , and becaus e th e re cord indicates that
Shelton knew at the time of the assaults how old the girl was eve n though he made statements to the contrary during the police ’ s invest igation

. Turner said that it was

a lso sign ificant that Shelton utilized marij uan a an d methamphetamin e as part of his

“ grooming ” of t he complainant. T urner a lso stated that Shelton ’ s belief that the sexual acts with the girl we re “ co nsensual ” was indicative of his sexual devia nc e
— in
fac t, according to Turner , Shelton re ferred to all o f hi s victims as eit her “ willing ” or

“ consensual ” victims. Turner opined that when a person perceives a child as consenting to sexual acts, t hat too is indicative of sexual deviance. Turner interpreted Shelton ’ s testimony that his assaults may have help ed o ne of
his victim s as his failure to appreciate the gravity of the harm he ha d committed13

against his vi ctims ; this was a nother f actor that weighed toward Turner ’ s recidivis m

a ss essment
. T urner also thought it significant that Shelton emotionally descri be d
abuses he suffer ed as a child , but “ that level of emotion [was] not there when
he [ talk ed] about his own victims. ” Turner expressed skept icism of Shel ton ’ s explanations for violating community

- supervision conditions because Shelton ’ s explanations had cha nged
several tim es ov er the years. Turner a verred that Shelton initially denied al l egations
that he was around children p rior t o revocation. Turner said that Shelton ’ s community

- supervision violations demonstrated a lack of self

- control even in a
sup ervi sed environment and that this was a risk factor regarding Shelton ’ s behav ior

a bnormality. According to Tur ner , Shelton through the years ha d rep eatedly denied assaulting the fourteen year old and admitted his culpability o nly after his daughter ’ s all egat ions came out
. I n the past, by Turner ’ s account, She l ton “ denigrated ” the
four teen

- year

- old vic t

im by claimin g that she was “ wild , ” that she w as already sexually
active when he assaulted her , and that she would “ dress pr o voca tively. ” Turner interpret ed t h ese statement s and belief s as show ing Sh el ton ’ s lack of remorse and
empa thy for his victims

. Turner also said that Shelton had begun to sexually groom the fourteen year old when she w as thirteen, including kissing and hugging her and
th at the offense s th at Shelton p lead ed guilty to o ccurred the day after th e girl turned
fourte en. Turner characterized Shelton ’ s claim that he did not become sexually14

attracted to the girl until the day after she turned fo urteen as simply not credibl e. He
considered She lton ’ s havin g re offe nded so soon after being released fr om prison for
his ea rlier offenses (and while on community superv i sion ) as heightening his
recidivism risk

. T urner a greed with multiple treatment providers th at had assessed Shelton as lacking insig h t i nto himself and not understanding the rea sons for his abnormal
behaviors. By Turner ’ s account, Shelto n is extremely antiso ci al and ha s learned “ w hat to say in ” treatment to sou nd as though he was making progress, but “ actually there ’ s
very little pro g ress , if a ny, going on. ” He also s aid that Shelton used r eligion as a way to manipulate those around him. Turner testified that Shelton ’ s choice of vic tims

— young girls that have familial pro blems, use drugs, and are sexu ally active at a n early
age
— demon s trat es tha t he cho se hi s victims because he kn ew how to manipulate
them and capitalize on their feel in gs of rejection. And according to Turner, Shelton ’ s

“ pool ” of victims is increasing because the age of his v ictims beg a n w

ith postpubescent girls and mo v ed t oward yo unger, p repubescent girls and because his
victims had moved from nonfamily me mb ers to his own daughter

. Turner also said that it was concerning that Shelton emotionally i dentified with hi s victims.
S h elton told Turner that he had p leaded gu i lty to the c harges a gainst his daughter only because it w ould allow him to complete his sexual

- offender pr ogram. T urner said that this explanation and the ones for his co nduct against his daughter
that he testified about indicated th at he was likely to reoffe nd

. Turner furt her15

elabora te d on Shelton ’ s abuse of his daughter, spe cifically pointing out that he was
not sup posed to be alone with her when the abuse o ccurre d, that his daughter was roughly nine years old when the assaults began, and that Shelton had g roomed his daugh ter by a “ c on stant accidental touching, ” including tou ching her buttocks and breasts and by lift

ing up her shirt or pulling down her pants. Turner said tha t his daughter also re ported th at S helton told her that the sexual co ntact was a “ se cret , ”
that the co ntact was normal between a father and dau ghter, and that the reason he had gone to prison the first time was b ecause the girl was no t h is biological child.
Turn er explained tha t even though Shelton pleaded gu ilty to touching his
d a ughte r ’ s breast and i nserting his finger in her ge nit a lia, the daughter ’ s accusations
contai ned details that Shelton had inserted his penis i n h is daughter ’ s vagina, that the daughter h ad told Shelt on that he was hurting her, but that Shelton did not stop
becau se “ he said he w asn ’ t finished yet , ” and he only stopped bec ause someone else
came home

. Turner further said that he did not believe Shelton ’ s te stimony that what
he ha d r eported in hi s sexual

- cycle report for therapy was false because what Shelton
h ad wr itten corrobor at ed his daughter ’ s report
. Turner averred that his ultimat e diagnosis regarding a behavio ral abno rmality
was that Shelton suffer s from pedoph ilic dis or der of a none xclusive type because in addition to prepubescent girl s, Shelton is a l so a t t racted to adult women . T urner said
that he , unlike Gaines, had made the additional diagnosis of he b ep hilia , “ which is a
sexual attrac tion [t o ] ch ildr en w ho have progres sed through puberty. ” Turner16

admitted that hebephilia is not in the Diagnostic a nd St atistical Manual , Edition Five ( DSM

- V )

. Turner testified that Shelton ’ s deviancy is “ characterized by a sexual

att ra ctio n to b oth prepubesc ent and postpubescent children. ” And Turner said that
he believ ed that Shelton ha s substance

- a buse issues and i s l i kely to use ille gal drugs agai n and that this was another fact or which increases Shelton ’ s recidivism risk

. Turner a lso diagnosed Shelton with antisocial personality disorde r, which he
said makes Sh elton more likely to r e offend in the future. More o ver, Turne r said that
the combination of antisocial behavior and sexual devia nc y “ exp onen tially increased ”
S helton ’ s likelihood of reoffend ing. Turner testified that he had also tested Shelton
wit h standard psy chological exams and that Shelton tested as a thir ty

- one out of fo rty

sc ore as being a psych opath , falling w it hin th e ra nge of individuals who display “ a

sever e ly high degree of psychopathic traits, ” again increasing his tendency to reoffend

. Shelton scored eight out of ten on another exam, which T urner said indic ates a higher
likelihood that Shelton wil l r eoff end. Tu rner also tested Shelton for basic recidivism
trai ts, wh ich Turner said Shelton scored high on and indicated that Shelton was almost four times as likely to reoffend than “ the average sex o f fender. ” T urner also

ex p ress ed concern that She lton had reoffended after his first stint in prison , and at that time he h ad a support system, including his moth er, but now , according to Turner, Shelton has even less of a support system.17

D. Dr. J o hn Ten nison Testi fi e d
S helton called Foren sic Psych iatrist Dr. John Tennison to testif y as an expert on his behalf

, and , based on Tenniso n ’ s two evaluation s of Shelton and a review of
the documentation , Tennis on determined that She lton does not have a be h aviora l abnormality

. Tennison said that two factors lead him to his conclusions : (1) t he data
that he had reviewed “ indicates that [] Shelton would not come anywhere near a thre shold o f fifty percent or more likely than n ot [ to re offend] , ” and (2) becau s e Shel ton was “ able to disengage ” having intercourse w ith his daughter when someone was approaching, demonstrating that Shelto n “ was in full control of his behavior. ”
Tennison also believed that Shelt on could control hi s behavior based on Shelt on ’ s use

o f a con d o m during his a ssault of the fourteen

- year

- o ld girl. A nd in Tennison ’ s view , not all people who commit sexual crimes a gainst children necessarily suffer from
pe d ophili c disor der

. Tennison ad mitted that if Shelton we re to use metha mp hetamine, that would put hi m at a h ig h risk of s e xual recidivism , but
T ennison claimed that this was not evidence of a behavior abnormality

. Tennison ’ s review of Shelton ’ s r ecords revealed his diagn osis of bi polar
disor der , bu t Tennison had not seen evidence of bipol a r disor der in his albei t limited
int eractions with Shelton

. Tennison did state that patien ts who suffer fr om bipolar
di sorder often also suffe r from a “ use disorder ” like drug abuse. According to
Tennison , many bipolar

- disorder symptoms are often confuse d wit h those of
antisoc ial personality disorder. Tennison disagreed with Turner ’ s diag nosis that18

Shelton suffers from antisocial p ersona lity disorder. Specifically, Tennison described

a person suffering from antisoc ial per sonality disorder a s unable “ to c onform
themselves to t he behavioral standards of

. . . a rigid situation su ch as prison ” and
noted that Shelton ’ s priso n reco rd had on ly one min or disciplinary mark

. Tennison stated that he did not believe that Shelton suffered from pedophilic
disorder b ecause his convictions demonstrate that he had only offended ag ainst one prepub escent victim

— his d a ug hter. Tennison also rejected the existence of hebephilia 3 and described it as an “ attempt to pathologize attraction towards teenage
females ” and that “ it ’ s und e rstood [ by mains tream psychology ] that i t ’ s b iologically
natural for a male to be att ra ct ed to teenage females ” be cause teenagers are at “ the height of fertility

. ” But Tennison did acknowledge that i t is wrong “ when someone
breaks a law and ha s sex with s omeone who is un der the age o f consent. ”
E
. The Charge and t he V er dict
After both th e State and Shelton closed, and outside the presence of the jury,
the State moved for a directed verdic t on the first prong of a Chapter 841 case

— that
the State h a d show n as a matter of l a w that Shelton is a repeat sexually vi olent
offen der. The trial court granted the motion over Sh elton ’ s objection that “ granting a directed verdict causes the jury to draw improper conclusio ns from the me re granting
of the direct e d verd ic t , causing the m to lower the burden of p roof for th e State and

3 Tennison used the term ephebophilia, but it is eviden t from the record that Turner and Tenn ison were using the terms hebephili a and eph eboph i lia as sy nonyms.19

causing them to hurry to an improper conclusion

. ” After the trial court granted t he directed verdict, it asked the State ’ s attorney whether it had a pr o posed jury charge , and the S t a t e ’ s att orney provided o ne . T he tri al court then addre ssed defense counsel
and asked , “ [O]ther than your object io ns to the directed verdict . . . did you have any other objections to their pro posed charge? ” Defense counsel res p o nded that the jury charge s h ould i nclu de a “ 10/2 i nstruction that a ‘ no ’ answer can be rendered by ten jurors as opposed to a m andatory twelve per a ‘ yes ’ verdict. ” Defense counsel did not
othe rwise make an y other objection to the jury charg e . The trial court denied defen se co un s el ’ s r equested 10

- 2 in struction , an d submitted only one question to the jury

— whether Shelton is a sexually violent predator

. The charge is titled “ DIRECTED V ERDICT JURY CHARGE ” and later in the charge, under t he heading of “ DIRECTED VERDICT G RANTE D BY TH E
CO URT ” the instructio ns read that “ [ t ] he Court has granted a directed verdict that [Shelton] has been convicted of more than one sexually violent offense an d a sentence was imposed for at least one of the of f e nses. Therefore, he is a ‘ repeat sex ually
vi o len t o ffender ’ under ( a)(1) and (b) above. ” After closing arguments, the jury
retired to deliberate , and thirty

- two minutes later , without having se nt any notes to the
court, the jury returned a u nanimous verd ict that Shelton is a se xually viole nt predat o r. Ba sed on the jury ’ s verdict, the trial court entered judgment that Shelton is a sexually violent predator as defined by Chapt er 841 and civilly committed Sh elton20

for treatm e n t and su pervision up on his release from inc arcera tion. Thi s appeal
followed.
III. D ISCUSSION
A. No Fundamental Error In his first issue, Shelton argues that “f undamental error” occurre d in this ca se when the State “ use [ d

] this civil case to p e rform the function of the crimi nal justice
system after the State’s ‘improvident plea b argai n’ in a related cri minal case .” Shelton’s argument is predicated on Justice Kennedy’s concurring opin io n in the Supreme Cour t of the Unite d State s ’ decision i n Kansa s v . Hendricks

. 521 U.S . 346 , 371, 117 S. C t . 2072, 20 87 (19 91) (Kennedy, J

. concurr ing). In Hendricks , the Court held that Kansas’ sexually violent predator act did not violate substantive d ue process, double jeopardy prin ciples, or the prohib i t io n of ex post facto laws

. Id

. at 37 0 , 117 S. C t
. at 2086 . Th e Court also held that Kansas ’ act w as civil, not c riminal, in

nature. Id

. at 37 0 , 117 S. C t
. at 2086

. Justice Kennedy joined the five

- member majority but wrot e separately to express concern regarding the potenti a l “dang ers inherent when a civil confinement law i s use d in conjuncti on with the criminal
pr oces s . . . .” Id

. at 37 1

– 72, 117 S. Ct. at 208 7

. Specifically, Justice Kennedy stated
that “ [i] f the civil system is used simply to impose punishment after the State makes an improvid e n t plea bargain on the c riminal side, then i t is n ot p erforming its p rop er f unction.” Id

. at 373 , 117 S. Ct. at 208 7

.21

Seizing on t his langu age, Shelton argues that when the State dismissed its initial Chapter 841 petition, entered a plea agreement with Shelton that he would serve f i v e years’ confinement f

o r the of fenses again st h is daughter (instead of a potential life
sentence ha d h e gone to trial), and then re

- filed its Chapter 841 petition, the State made the “improvident p lea bargain” that Justice Kennedy warned coul d occur. Recogniz ing that he did not obje ct on this grou nd in the trial court, Shelton argues
tha t this conduct by the State constituted “fundamental error” and that he did not have to preserve t he issue for appellate review.
Th e State arg ues that S helton has failed to pres erve this issue for our review
bec ause he did not object in the trial court below and that Shel ton has failed to provide this court with an adequate record on whic h to decide his complaint. We agree with the S tate.
In civil appe als, the f

undamental

- erro r doctrin e is a narrow and limi ted

exc eption to the procedural r ules requiring parties to prese rve error regarding their appellate complaints. See In re B.L.D. , 1 13 S.W.3d 340, 350 (Tex. 2003). In light of
th e strong po licy consid erations favoring the pre servatio n

- of

- e r ror requ irement , t he
S upreme Court of Texas has ca lled the fundamental

- error do ctrine “a discredited
doctrine.” See id

. At most, the fundamental

- error doctrine applies in the following
three s ituations: (1) when th e record shows on its fac e that t he cou r t render ing the ju dgme nt lacked jurisdiction; (2) when the alleged error occurr ed in a juvenile delinquency case and falls within a category of err or as to which preservation of error22

is not r eq uired; and (3) when th e error d irectly and adve rsely af fects t he inter est of the pub lic generally, as that inter est is declared by a Texas st atute or the Texas
Constitution. See Mack Trucks, Inc. v. Tamez , 20 6 S.W.3d 572, 577 (Tex. 2006) (including the fi rst and thi rd categori es); B.L. D. , 113 S.W.3d a t 350

– 51 (inclu d ing the
first and seco nd categories).
The al leged error in Shelton’s first iss ue does not fall within any of these three categories. The alleged error would not deprive the trial court of ju ri sdiction; t he alleged error did not occur in a juvenile delin q uency ca se; an d, e ven though the alleged erro r may affect Shelton’s own private interests, the alleged error does not directly and adversely affect the interest of the public generally as that i nterest is
declared b y a Texas statute or the Texas Con stitut i on. Shelton d oes not make an argument otherwise. Instead, Shelton argues that this court should expand the fun damental

- error doctrine b y looking at the Te xas Court of Criminal Appeals’ decis i o n in Marin v. State , 851 S .W.2d 275, 278

– 79 (Tex. Crim. App. 1 993) , overrule d on oth er grounds by Cain
v. State , 947 S.W.2d 262, 264 (Tex. Cr im. App. 1997). In Marin , the Texas Court of Criminal Appeals identified three categories of rules or rights: (1 ) systemic (o r absolute) requ irements or rig hts; (2) waiv able r i ghts; and (3) forf eita ble ri gh ts. See Mendez v. State , 138 S.W.3d 334, 340 (Tex. Crim. App. 2004)

. A systemic right is “a law that a trial court has a duty to follow even if the parties wish otherwise.” Id . at 340

. Syst em ic rights i nclude those tha t a re statutori ly23

or cons tit utiona lly ma ndated, or ar e otherwis e not optional, wa ivable, or forfeitable by
either party. See Sanchez v. State , 120 S.W.3d 359, 365

– 66 (Tex. Crim

. App. 2003)

. Waivable rights , on the other hand, are those a judge has an indepe ndent d uty to implemen t a bsent an effective wai ver by the defendant. Mendez , 138 S.W.3d at 341. It
is well

- es tablished that waiver ordinarily requires voluntary “ relinquishment or
ab andonment of a known right.” Johnson v. Zerbst , 3 04 U.S. 458, 464 , 58 S . C t. 1019,
10 23 (1938). Finally, f

or feitab le rights are rights which a re imp lemented at the request
of the defendant. Mende z

, 138 S.W.3d at 341.
The Marin Court reasoned that the general requirement for preserva tion of error as set forth in Rule 33.1(a ) o f the Te xas Rules of Appellate Proc edure doe s not

a pply to a violatio n of systemic or waivable rules or rights, and a violation of those

ru les or rights may be raised for the first time on appeal. See id

. at 341. Utilizing language from Proenza v. Stat e , S helton “co ntends that it th reatens the
i nte grity of the criminal adj udicatory process itsel f for the State to float in and out of this [Ch apter 841] process and then unconstitutionally pursue this civil a ction to impose what amounts to criminal punishm en t which shou ld be considered to be at
leas t a [waiv able] category

- two Marin error if not a ‘systemic’ ca tegory

- one Marin
error.” S ee 541 S.W.3d 786 , 790 (Tex. Crim. App. 2017). Shelton ’s reliance on Proenza , however, is misplaced.
The Proen za Court a ddre ss ed the i ssue of whether an a ppella nt c ould bring a
cl aim for the first time on app eal that the trial court had violated Texas C ode of24

Criminal Procedure Article 38.05, the statute th at forbids a judge fro m discussing or commenting upon the weight of the ev idence o r making any remark calcul ated to convey to t he jury the judge’s opinion o f the case. Id

. at 791. The P roenza Court h eld
that “claims of improper judicial comments raised under Ar ticle 38.05 are not within
Marin’s third class of f

orfeitable rig ht s” and c ould be raised on a p peal f or t he first
time. Id . at 801. In reaching this holding, the Proe nza Court reasoned that b e cause Article 38.05 is written in mandatory terms, it created a duty on the t rial court to
reframe from certain k inds of ac ts a nd thus Ar ticle 38.05 could n o t be a law that is
forfei table by a party’s inaction. Id

. Other than summarily arguing that hi s i ssue should be consi dered “at least a [waivable] category

- two Marin error if not a ‘ syst emic’ category

- one Marin error , ”
Sh elton does not po int this court to “a la w th a t a trial co urt has a duty to follow even if the parties wish otherwis e” or to a right that a j udge has an independent duty to implement absent an effecti ve waiver by the defe ndant. Mende z , 138 S.W.3d at 34 0

. Thus, we co ncl ude that Shelt on has fail ed to demonstr ate how this issue is not a typical, forfeitable, category

- three Marin righ t. Accor dingly, we reject Shelt on’s invitation to expand the “discr edited” fundamental

- e rror doctrine to includ e the issue
he n ow brings o n a ppeal, and we hold t hat S helto n has fai led to preserve this issue for
our review. Relying on the Supreme Court of Kansas’ case of In re Crane , Sh elton argues
that the State’s conduc t in this case falls squarely within “the sc ene sketched by Justice25

K en ned y” in Hendrick s . 26 9 Kan . 57 8 , 58 9 (20 00) ( citing Hendricks , 521 U.S. at 371 , 117 S. C t
. at 207 2 )

. But what make s Shelton’s case distinct from Crane ’ s is t hat in
Crane the Supreme Court of Kansas had a f ully developed record before it. Ind e ed,
the re co r d in Crane dem onstra ted tha t C rane’s vi ctim had testified at Crane’s sexual predator trial “that the State told he r of its intention to follow Crane’s plea w ith a sexual predator pet ition in order to prolo ng his confinement.” Id

. at 58 9

. D e s pite
this evi dence, the Cra n e cou rt still d id not fi nd error. Id

. But in t his case the record is devoid of any evidence as t o why the Stat e proceeded in the mann er that it did. 4 This la ck of record is precise ly why Shelton
should have obj ected in the trial court an d developed th e reco rd for app eal, and this is an independent reason why this court should decline to address his issue. See Ma son v. Our Lady Star of S ea Catholic Church , 154 S.W.3d 816, 821 (Tex. Ap p.

— Houston [14th Dist.] 2 005 , no pet.) (“ The only type of fundamental error th at migh t on occa sion be

4 Shelton spend s the ma jority of his first issue claimi ng that the S tate ’ s pr ocedure of having filed a commitment petition, but then later d ismissing it, entering a plea with Shel ton on new charges , and re filing of the peti tion c onst itut es the issu e that Justice Ken n edy poi nted out in his concurrence . Hendric ks , 521 U.S. at 371, 117 S. C t
. at 207 2 (Kennedy, J

. concurring)

. But Justice Kenned y ’ s concurrence did not address the exa ct circumst ances that occurred in this case

. Inde ed, Just ice Kennedy ’ s hypothetical di d n ot in volve commitment proceedings that had a lread y begun that were interrup ted by both a new set of convictions and multiple al legations of sexual assault of children like occurred in this case. Shelton summar ily cl aims tha t this is t he very sce nario J ust ice K e nned y described in his concurrence, but She lton does not even discuss the factual differences between this ca se and Justi ce Kennedy ’ s hypothetical. We therefor e reject his argument on this front.26

raised without the benefit of a reporter’s record is a jurisdiction al defect appa rent on the face of the r ecord.”). We overrule Shelton’s first issue. 5
B. C l osing Argume nts
In hi s second issu e, Shelton arg ues that the t rial c ourt erron eously pr evented him from fully presenting “defensive theories.” We disagree.
Dur ing closing arguments, the following exchange occurred: [ Shelton ’s Atto rn ey

]: Dr. Gaines fo und ant

iso cial personal

ity disorder, pedophilia. Dr . Turn er found an additio nal o ne of ephebophilia which, of course, doesn’t exist in any book that I’ve ever seen. [ State ’ s Attorney

]: O bjection, Your Honor, improper argument. It ’s no t in evidence.
THE COURT: Sus tained. [ She lton ’s Attorne y

]: Dr. Turner sat i n here in trial and told you it doesn ’ t exist in the DSM. It doesn’t exist. There’s no agreed upon criteria . There’s no cons ensus . There’s no general community standard re gardi ng ephebophilia. Bu t he ga ve it to him any way, and then he came back a nd sai d, well, you know w hat, no, no, no, I specified paraphilia.

5 The State also arg ues that Sh elton in effect is claiming prosecutorial misconduc t and that u nder case law, Shelton was required t o both object and develop a record for appeal in order to preserve this issue for our r eview. T o the extent he is bringing a pr ose cutori al

- misco nduct claim , the State is cor rect that he has failed to preserve such an i ssue for our review by not objecting on these grounds in the trial court. See Joyn er v. Stat

e , 548 S.W.3d 731, 739 (Tex. Ap p.

— Houst on [1st Dist.] 2018, pet. ref ’ d) (“W e have held th at a claim of prosecutorial m isconduct may be forfeited if not raised belo w.”); see also Real Prop. Located at 404 Fuller St., Kerrville, Kerr County, Texas
v. St ate , No. 04

- 17

- 00676

- CV, 2018 WL 662 4901, at *4 (Tex. App.

— San Antonio Dec. 19, 2018, no pet. ) (mem. op.) (questioning the applicability of a prosecutorial

misconduct c laim in a civil forfeiture proceeding and concluding that ev en if such a claim appl ie d, a par ty still must make a specific a nd timel y objection to preserve the issue fo r appe al).27

And he made an interesting statement. Isn’t be tter explained by somet hing else. It isn’t better explained by so methi ng else. Think about that f or a minute.
Sh elton’s argu ment is th at b ecause the tria l court sustain ed the State ’ s objection, he was not afforded the right to call into question what h e refers to as Turner’s “ bogus diagnosis” of hebephilia.
Ru le 26 9 provides that argu ments on questi ons of law sh all be addres sed to th e

cou rt. Tex. R. C iv. P. 269(d). Arguments on the facts should be addressed to the jury, and counsel is required to c onfine the argum ent stri ctly to the evidence and to the argu me nts of opposing counsel. Id . at (e) ; s e e Texas Sand Co . v. Shield , 3 81 S.W .2d
4 8, 58 (Tex. 19 64). The duty r ests with the trial court to supervise and properly limit the scope of counsel’s arg ument. See City of Dall as v. Andrews , 149 Tex. 609 , 610,
236 S.W .2 d 609, 611 (1951). Thus, a revi ewing co urt will not in terfer e with t he tri al court’s duty unl ess it is c lear that the trial court abused its discretion. In re Guardianship of Dahl

, 590 S.W.2d 191, 199 (Tex. App

. — Amar illo 1979, writ ref’d n.r.e.); see I

n re C.J.B. , 137 S.W.3d 814 , 826 (Tex. App

. — Waco 2004, no pet .)

. Here, as ca n be seen from the exchange ab ove, what State ’ s counsel was objecting to was defense counsel’s statement that the diagn osis of ephe bophilia
“do esn’t exist in any book that I’ve ev er seen.” Even though Shel t on contends th at this a rgument was proper b ecause it was based “in e vidence,” n either party put on
evidence that def

ense counsel had read any books, much less books tha t might contain psycholo gical diagnoses. Inde ed , as the State points out , defense cou ns el28

immediately proceeded to e xplain that Turner h ad te stified that hebephilia w as not in
the DSM

- V and that there is no medical

- community standard or agreed

- upon criter ia

or cons ensus regarding hebephilia. T he onl y thing that the tr ial cour t’s ruling
prev ented was defense counsel cla iming that hebephili a was not in any book defense
counsel had ever seen. We conclude that the trial court was within its discr etion to

sus tain the S tate’s objection , and we overr ule Sh el ton’s second issu e. C
. The Directed V erdict In his third issue, Shelto n argues that th e t rial court erred by grantin g a partial
directed ver dict on the repeat

- sexually

- violent

- offender element of the State ’ s case. We disagree. Although a defenda nt has an absolute right to a jury trial in sexually

- violent

predator c ivil

- c om mitm ent cases, se e Tex. Health & Safety Code Ann. § 841.061(b) , this court and several of our sister courts have consistently held th at when there is undisputed evidence establ is hing that the defendant ha s been convicte d of more than one sexually v

iolent o ffense and a s ent ence was imposed for one of them, a person’s status as a sexually violent offender is a legal determination appropri ate for partial
directed verdict. See In r

e Commitment of Perdue , 530 S.W.3d 750, 754 (Tex. App.

— Fort Worth 2017, pet. d en ied) (holding tri al court did not err by gra nting directed verdict
on repeat

- sexually

- violent

- offender element); see also In re Commi tment of Talley , 522 S.W.3d 742, 750

– 51 (Te x. App.

— Houston [1st Dist.] 2017, no pet.) (same); In re Commitment of H

arris , 5 41 S.W.3d 32 2, 33 0 (Tex. App.

— Houston [14th Dist.] 2017, no29

pet.) (same); In re Commitment of Decker , No. 11

- 17

- 00007

- CV, 2017 WL 286 9847, at
*3

– 4 (Tex. App.

— Eastland June 30, 20 17, no pet.) (mem. op.) (s ame); In re
Com mitment of Black , 522 S.W.3d 2, 6 ( Te x. App.

— San An ton io 2017, pet. denied) (same ); In re Commitment of Lemmons , No. 09

- 13

- 00346

- CV, 2014 WL 1400671, at *3 (Tex. App.

— Bea umont Ap r. 10, 2014, pet. denied) (mem. op. ) (same). Here, the State i ntroduced pen p ackets demonstrating that She lton h a d previous ly be en convicted of six sexually v iolent offenses, all of which were accompanied by a sentence of imprisonment. And Shelto n himse lf testified that he
had been convi ct ed of these offenses and s erved time for each of t hem. T he trial

cour t acco rdi ngly took judi ci al notice that Shelton had b een convicted of the six
offenses and served time. Shelton did not put on any evid ence a t tr ial to contradict
these facts. Thu s, the trial court did not err by granting the directed verdict. See
Perd ue , 53 0 S. W.3d at 754

. We overrule Shelton ’ s third is sue. 6

6 As recited ab ove, although Shel ton objected to the trial court granting the directed verdict, he did not object to the jury charge twice containing the l anguag e tha t the charge was a “ DIRECTED VER DICT ” charge

. And he does not challenge the cha rge on appeal. However, such language shou ld not be part of the char ge because it is ta ntamount to a trial court ’ s comment on the weight of the evidence

. S ee Redwine v. AA

A Life I ns. Co. , 852 S.W.2d 10, 14 (Tex . App

. — D allas 1993, no writ) (finding jury i nstruc tions co nstituted c omments on weight of evidence); see also 34 Nancy Saint

- Paul, T

exas Practi ce Series: The Jury Charge in Texas Civil Litigation § 3.22 ( 2019 ed.) (“[ t] he instructions in the jury charge o r di narily may not advise the jury that a fact issue has bee n conclusiv el y established as a matter of law since that instruction might unduly influence the jury ’ s answers about the other facts in the case”).30

D. Shelton ’ s Requested Jury Instruction In his fourth issue, Shelton argues that the “ trial court erred to refus e []
Sh el ton ’ s reques ted charge that t he jury coul d render a verdict in his favor by a 1 0

- 2
vote in accord a nce w

ith Rule 292(a) of the T exas Rules of Civil Procedure. ” We agree that the trial court erred by not in clud ing an instruction that the jur y did not ne ed to unanimously a gree in orde r to acquit Shelton , but we conc lude t hat Shelton was no t harmed by th is error.
This court has al ready held that in a Chapter 841 proceeding , “ the rules of civil procedure app ly and such a determination only re qu ires the agreement of 10 juro rs , ”
and it is error for the trial court to fai l t o include this in s t ruction in it s charge. In re Commitment of

Jones , 571 S.W.3d 880, 890 (Tex. App.

— Fort Worth 2019, pet. filed) ; see also Tex. Health & Safety Code Ann. § 84 1.146(b) (“Except as otherwise prov id ed by this subsection, a civil commit ment proceeding is sub jec t to the rules of proc edure and appeal for c i

vil cases.”); Tex. R. Civ. Proc. 292(a) (“a verdict may be rendered in any cause by the concurrence . . . of t he same ten or more members of a n origi nal jury of twelve”). Thus, as we he ld in Jones , the trial co urt in this ca se erred by not i ncluding
the requested in struction. 571 S.W.3d at 890

. But our in q uiry does not end there.
Hav ing found error, we must d et ermine harm. To obtain a reve rsal of a judgment on the basis of trial

- cou rt er ror in civil cases, the appellant must show that
the error occur red and that it probably caused rendition of an improper judgment or probably prevent ed t he appellant from prop er ly presenting the case to this court.31

Tex. R. App. P. 44.1(a); Romero v. KPH C onsol

. , Inc. , 166 S. W.3d 212, 225 (Tex. 2005). Charge error is generally considered harmful if it relates to a “contested, critical issue.”
T rans con. Ins. v. Crump , 33 0 S.W.3d 211, 225 (Tex. 2010) ( q uoting Columbia Rio Grande Healthcare, L.P. v. Ha wley , 284 S.W.3 d 851 , 856 (Tex. 2009) ). Unless the appellate
court is reasonably certain that the jury was not significantly influenced by issues

err oneo usly submitted to it, th e error is reversible. Romero , 166 S .W.3d at 227

– 28.
In Jones , this cour t hel d that the trial cou rt ’ s failure t o inc lude an instruction to the jury that it could render a “ no ” finding with ten juror ’ s concurrence was harmful

error . 571 S.W.3d at 8 89

– 90

. But the facts of Jones are d istinguishable from the fa c ts of this case , and a different outcome i s war ranted.
In Jo nes , this court determined that there w as harm because even though the

r ec ord d id not demonstrate exactly how th e vote among the jurors was split during deliberations, the recor d revealed a split d efinitely exist ed. Id . at 891

. Indeed, in J

ones , the jury issued four notes concerning t he substance of the case: thre e requested
p ortio ns of the record to review testim on y of definitions of certain terms and one,
issued four

- an d

- a
- half hours after jury deliberations b egan, declared that the j ury w as deadlocked. Id

. A bout an hour and fiftee n minutes a fter the trial court delivered a modified Allen charge urgin g the jury t o continue deliberat i ng, the jury returned a
unanimous verdict

. Id

. This court held that given t hat r ecord, we could not be

re asonably certa in that the verdict was n ot sig nificantly influenced by the tri al court ’ s

error. Id

.32

U nlike in Jones

, the jury in this case did not issu e any no tes and delivered its
unanimous verdict in thirty

- two minutes. I n sho rt, there is nothing in t his record, an d Shelton has point ed to nothin g , indicating that the jury was split in its decision. Thus, we are reasonably cer tain that the verdict was n ot significantly inf lue nce d by the trial

court ’ s error. 7 See i

d

. ; see also In re Commitment of Rensh aw , No. 06

- 19

- 00069

- CV, 2020 WL 559292, at *11 (Tex. App.

— Texarkana Feb. 5, 2020, no pet. h.) ( “ Unlike in Jones , there was no evidence of a split decision. Instead, the jury ’ s only correspondence with
the trial court said that it had reached a unani mous v erdict. ” ).
Sh e lton argues that under th e gui dance of the Supreme Cou rt of New Jersey ’ s de cision in State v. Brown , this cour t should presume harm in this case. 138 N.J. 48 1 , 509 (1994). W e conclu de that Sh elton ’ s reli ance on Brown is misguided

. Not onl y are we not b o und b y d ecisions of other stat e ’ s high courts, the Supreme Court of New Jer sey overruled Brown in State v. Cooper to the exten t that Brown suggested that the

non

- unanimous instruction was required during the guil t phase of trial , concl uding
tha t such an i n struc tion was only re quir ed du ring the penalty phase of a criminal trial

. 1 51 N.J. 326, 331 (199 7 ). T his civil

- commitment proceeding is not a criminal trial ,

7 When addre ss ing harm in this co ntext, our sister co urt in Beaumont analyzes the harm based on the e vidence supporting a verdict that the defendant is a sexually violent predator. S ee In re Commitment of Perez , No. 09

- 15

- 00126

- CV, 2015 WL 8470522, at *7 (Tex. App.

— B ea umont Dec. 10, 2015, no pet.) (mem. o p. )

. B ut this court in Jones looked to evi d ence in the re cord of wh ether the jury was sp lit on its verdict , and we have done the sa me in this cas e. 571 S.W.3d at 890

.33

and we decline the invitation to apply non bi n ding, ov erruled caselaw from another

state . We ove r rule S helton ’ s fourth iss ue. IV. C ONCLUSION Having overruled Shelton ’ s first three issues and having concluded that th e

error Shelton pr es ents in his fourt h issue w a s harmless , we affirm t he trial court ’ s jud gm ent
. /s/ Dana Womack
D ana Womack J ustic e Delivered: Fe bruary 13, 2 020