IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

ERIC DWAYNE STEVENSON, § 

APPELLANT § 

 § 

v. § NO. PD-0122-15

 § 

THE STATE OF TEXAS, § 

APPELLEE § 

ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02-13-

00537-CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS 

DISTRICT OF TEXAS.

§ § § 

STATE'S BRIEF ON THE MERITS

§ § §

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR

Chief, Post-Conviction

STEVEN W. CONDER, Assistant

Criminal District Attorney

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672 

State Bar No. 04556510

COAAppellatealerts@tarrantcountytx.gov

LISA MCMINN

State Prosecuting Attorney

Austin, Texas

PD-0122-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/16/2015 11:18:18 AM

Accepted 7/16/2015 11:56:50 AM

ABEL ACOSTA

CLERK
i

TABLE OF CONTENTS

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

STATEMENT OF THE CASE ................................. 1

STATEMENT OF FACTS ................................... 3

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

STATE’S REPLY TO APPELLANT’S FIRST GROUND FOR REVIEW:

DOUBLE JEOPARDY ..................................... 9

A Allowable Units of Prosecution ................. 11

B. Units of Prosecution Shown ..................... 15

C. Conclusion ..................................... 16

STATE’S REPLY TO APPELLANT’S SECOND GROUND FOR REVIEW:

TRIAL COURT JURISDICTION ........................... 17

STATE’S REPLY TO APPELLANT’S THIRD GROUND FOR REVIEW:

DENIAL OF MOTION TO QUASH INDICTMENT ............... 21

STATE’S REPLY TO APPELLANT’S FOURTH GROUND FOR REVIEW:

DENIAL OF DIRECTED VERDICT ......................... 24

STATE’S REPLY TO APPELLANT’S FIFTH GROUND FOR REVIEW:

EXCLUSION OF EVIDENCE .............................. 27

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

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

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

INDEX OF AUTHORITIES

CASES PAGES

Arbuckle v. State,

132 Tex. Crim. 371, 105 S.W.2d 219

(Tex. Crim. App. 1937)..............................18

Bays v. State,

396 S.W.3d 580 (Tex. Crim. App. 2013)...............28

Boykin v. State,

818 S.W.2d 782 (Tex. Crim. App. 1991)...............19

Brown v. Ohio,

432 U.S. 161, 97 S.Ct. 2221

53 L.Ed.2d 187 (1977)...............................10

Crabtree v. State,

389 S.W.3d 820 (Tex. Crim. App. 2012)...............28

Ex parte Benson,

459 S.W.3d 67 (Tex. Crim. App. 2014)................10

Fletcher v. State,

214 S.W.3d 5 (Tex. Crim. App. 2007).................17

Gonzales v. State,

304 S.W.3d 838 (Tex. Crim. App. 2010)...............12

Hardy v. State,

187 S.W.3d 232 (Tex. App. -- Texarkana

2006, pet. refused).................................29

Huffman v. State,

267 S.W.3d 902 (Tex. Crim. App. 2008)...............11
iii

In re Commitment of Fisher,

164 S.W.3d 637 (Tex. 2005)..........................18

In re Commitment of Lowe,

151 S.W.3d 739 (Tex. App. - Beaumont

2004, pet. denied)..............................19, 26

In re Commitment of Richards,

202 S.W.3d 779 (Tex. App. – Beaumont

2006, pet. denied)..................................18

In re Commitment of Stevenson,

2013 WL 5302591 (Tex. App. – Beaumont

September 19, 2013, no pet.).....................3, 18

Jones v. State,

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

Long v. Castle Tex. Prod. Ltd. P'ship,

426 S.W.3d 73 (Tex. 2014)...........................18

Miller v. State,

333 S.W.3d 352 (Tex. App. - Fort Worth

2010, pet. refused).................................22

Rodriquez v. State,

227 S.W.3d 842 (Tex. App. – Amarillo

2007, no pet.)......................................28

Rotenberry v. State,

245 S.W.3d 583 (Tex. App. - Fort Worth

2007, pet. refused).................................22

Smith v. Doe,

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

155 L.Ed.2d 164 (2003)..............................13
iv

Smith v. State,

2014 WL 4460420 (Tex. App. – Beaumont

September 10, 2014, no pet.) .........................23

Speights v. State,

___ S.W.3d ___, 2015 WL 3988969

(Tex. Crim. App. July 1, 2015)......................10

Stevenson v. State,

2015 WL 221816 (Tex. App. – Fort Worth

January 15, 2015, pet. granted)......................1

Thomas v. State,

454 S.W.3d 660 (Tex. App. – Texarkana

2014, pet. refused).................................12

Young v. State,

341 S.W.3d 417 (Tex. Crim. App. 2011)...............12

CONSTITUTION & STATUTES

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

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

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

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

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

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

RULES

Tex. R. App. P. 9.4(e) ...............................31
v

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

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

Tex. R. Evid. 401 ................................28, 29
1

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

ERIC DWAYNE STEVENSON, §

APPELLANT §

§

V. § NO. PD-0122-15

§

THE STATE OF TEXAS, §

APPELLEE §

ON DISCRETIONARY REVIEW FROM CAUSE NUMBER 02-13-

00537-CR IN THE COURT OF APPEALS FOR THE SECOND APPEALS 

DISTRICT OF TEXAS.

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant was convicted of three counts of 

violating the civil commitment requirements for

sexually violent predators. (C.R. I:109-11). The jury 

found the repeat offender notice to be true, and 

sentenced him to seventeen years’ confinement and a 

$5000 fine for each count. (C.R. I:116-18).

The Court of Appeals for the Second District of 

Texas overruled the appellant’s five points of error 

and affirmed his conviction. Stevenson v. State, 2015 

WL 221816 at *1-2 (Tex. App. – Fort Worth January 15, 
2

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

On April 29, 2015, this Court granted the 

appellant’s petition for discretionary review on the 

following issues:

1. Are the appellant’s convictions in each count 

the same offense for double jeopardy purposes?

2. Did the trial court have jurisdiction because 

the appeal from his commitment order was still 

pending at the time of trial?

3. Did the trial court improperly deny the 

appellant’s motion to quash his indictment 

because the appeal from his commitment order 

was still pending at the time of trial?

4. Did the trial court improperly deny the 

appellant’s motion for directed verdict because 

the appeal from his commitment order was still 

pending at the time of trial?

5. Did the trial court improperly exclude evidence 

that his commitment order was still on appeal? 

Stevenson v. State, No. PD-0122-15 (notice).
3

STATEMENT OF FACTS

On September 14, 2011, the appellant was found by a 

jury to be a sexually violent predator. (R.R. IV:38, 

42, VIII:State’s Exhibit #2). The trial court entered 

a final judgment and order of civil commitment for 

outpatient treatment against him. (R.R. IV:38, 42, 

VIII:State’s Exhibits #1 & 2).1

 The trial court ordered 

that the appellant’s civil commitment begin upon his 

release from the Texas Department of Criminal Justice. 

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

Under the terms of his civil commitment, the 

appellant was ordered to:

• Reside in a residential facility under contract 

with the Office of Violent Sex Offender 

Management;

• Participate in and comply with the course of 

treatment provided by the Office;

 

1 The Court of Appeals for the Ninth District of Texas 

affirmed the appellant’s final judgment and civil 

commitment order on September 19, 2013. See In re 

Commitment of Stevenson, 2013 WL 5302591 (Tex. App. –

Beaumont September 19, 2013, no pet.) (not designated 

for publication).
4

• Comply with all written requirements of the 

Office and his case manager; and

• Submit to tracking under a global positioning 

satellite (GPS) monitor or other monitoring 

system and not tamper with, alter, modify, 

obstruct or manipulate the GPS monitor 

frequency and comply with all written monitor 

system requirements.

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

On December 27, 2011, the appellant was assigned to 

a transitional living center in Fort Worth for his 

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

appellant received the supervision requirements that:

• He wear a wearable miniature tracking device 

(WMTD) twenty-four hours a day, seven days a 

week;

• He remain on home confinement twenty-four hours 

a day, seven days a week, unless given 

permission to leave; and

• He not have any contact with family members, 

casual relations, or friends unless approved by 

his case manager and treatment provider.

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

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

The appellant received his treatment program
5

conditions and requirements that:

• He could be terminated from the program if he 

failed to make progress;

• He could be discharged from the program if he 

did not follow the rules of civil commitment, 

including supervision and treatment; and

• He was required to actively participate in and 

successfully complete the Outpatient Sexually 

Violent Predator Treatment Program.

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

1, 4 & 8]).

On February 26, 2012, the appellant removed his 

tracking device and left the transition center without 

permission. (R.R. IV:45-46, 47-48). He was located 

his girlfriend’s apartment. (R.R. IV:94-95). The 

appellant had not been approved to have contact with 

family or friends, or to meet with his girlfriend. 

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

The appellant had not been making progress in his 

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

• He had a difficult time being open;

• He was not cooperative;
6

• In group sessions, he would laugh, make light of 

the conversation, and did not appreciate the 

seriousness of the discussion; and

• He commented that “people don’t need to get into 

his business”.

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

The appellant was discharged from the outpatient 

treatment program after he absconded from the 

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

Exhibit #7). His treatment provider believed that he

lacked commitment to treatment, and is dangerous due to 

his highly impulsive nature and his inability to weigh 

the consequences of his actions. (R.R. IV:168-71).
7

SUMMARY OF THE STATE'S REPLIES

Double Jeopardy:

Each violation of the civil commitment requirements 

is an allowable unit of prosecution. The appellant’s 

three convictions do not violate his double jeopardy 

protection against multiple punishments.

Jurisdiction:

Civil commitment orders are effective immediately. 

A prosecution for violating its requirements may occur 

despite a pending appeal of that order.

Indictment:

The pendency of an appeal challenging a civil 

commitment order is not relevant to the validity of an 

indictment for violation its requirements.

Directed Verdict:

Civil commitment orders are effective immediately. 

The conclusion of an appeal challenging that order is 
8

not an element of prosecution for violating its 

requirements.

Exclusion of Evidence:

The “finality” of a civil commitment order is a 

question of law for the trial court. It is not 

relevant to any question of fact for the jury.
9

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

DOUBLE JEOPARDY

Appellant's Contention:

The appellant contends that his three convictions 

are the same offense for double jeopardy purposes.

State's Reply:

Each violation of the civil commitment requirements 

is an allowable unit of prosecution. The appellant’s 

three convictions do not violate his double jeopardy 

protection against multiple punishments.

 

Arguments and Authorities:

The United States Constitution guarantees that a 

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

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

amend. V. This guarantee protects a defendant against:

(1) A second prosecution for the same offense

after acquittal;
10

(2) A second prosecution for the same offense 

after conviction; and

(3) Multiple punishments for the same offense.

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

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

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

2015).

What constitutes the “same offense” for multiple 

punishment purposes is strictly a matter of legislative 

intent; that is, how many different offenses or units 

of prosecution did the Legislature contemplate for 

which an accused should be susceptible to punishment. 

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

prosecution” analysis consists of two parts:

(1) What the allowable unit of prosecution is?

(2) How many units have been shown?

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

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

Absent an explicit statement defining the allowable 

unit of prosecution, the best indicator of legislative 
11

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

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

2010).

A. Allowable Units of Prosecution

The Texas Health and Safety Code provides that a 

person commits a criminal offense if, after having been 

adjudicated and civilly committed as a sexually violent 

predator, he violates a civil commitment requirement 

imposed under section 841.082(a). Tex. Health & Safety 

Code §841.085(a). 

Under the “eighth grade grammar” approach for 

determining legislative intent, the statutory language 

that constitutes the “gravamen” of an offense is the 

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

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

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

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

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

civil commitment requirement”. See Tex. Health & 

Safety Code §841.085(a). Thus, the “gravamen” of 
12

section 841.045 is the defendant violating his civil 

commitment requirements or the nature of his conduct.

In “nature of conduct” offenses, each separately 

defined act within a statute typically evinces a 

legislative intent that the act be construed to 

constitute separate offenses and not merely different 

manners and means for committing a single offense. 

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

2010). Thus, multiple violations of the civil 

commitment requirements constitute multiple offenses or 

units of prosecution.

While the Court has not yet addressed this precise 

issue, an apt comparison can be made to the sexual 

offender registration cases where each violation of the 

sexual offender registration requirements can be a 

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

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

to comply with the change of residence notification is 

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

664 n.1 (Tex. App. – Texarkana 2014, pet. refused) 
13

(each change of address is an allowable unit of 

prosecution since a sex offender has a duty to report a 

change of address to the proper authorities both before 

and after a move).2

 See also Jones v. State, 323 S.W.3d 

at 889 (in “false statement to obtain property or 

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

materially false statement; thus, multiple false 

statements give rise to multiple offenses even if made 

in connection with only one credit application).

Additionally, the express language in section 

841.085(a) criminalizes the violation of “a civil 

commitment requirement”. See Tex. Health & Safety Code 

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

singular suggests that each instance that item occurs

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

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

 

2 Contrary to the appellant’s claim, nothing in Smith v. 

Doe appears to limit the units of prosecution which 

might arise from a defendant’s failure to comply with 

his sexual offender registration requirements. See

Smith v. Doe, 538 U.S. 84, 101-02, 123 S.Ct. 1140, 

1152, 155 L.Ed.2d 164 (2003).
14

[O]ther jurisdictions have employed what is 

sometimes known as the “a/any test”: The use of 

“a” before the proscribed conduct means that 

the statute unambiguously proscribes each 

instance of the conduct while the use of “any” 

is ambiguous, and may or may not proscribe each 

instance of conduct, depending on the context 

of the entire statute. One court has criticized 

the employment of this test while another has 

cautioned that the “test” is a “valuable but 

nonexclusive means to assist courts in 

determining the intended unit of prosecution” 

that should not be applied “mechanistically.”

We do not adopt the “a/any” test as a strict 

rule, but we find it to be a helpful tool in 

statutory analysis. The presence of “a” before 

the term “materially false or misleading 

statement” in §32.32 is at least some 

indication that each “materially false or 

misleading statement” constitutes a separate 

unit of prosecution.

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

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

the term “civil commitment requirement” in section 

841.085(a) indicates that each violation constitutes a 

separate unit of prosecution.

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

violation of a civil commitment requirement; as such,

each violation is an allowable unit of prosecution.
15

B. Units of Prosecution Shown

The appellant’s civil commitment required that:

• He wear a wearable miniature tracking device 

(WMTD) twenty-four hours a day, seven days a 

week;

• He remain on home confinement twenty-four hours 

a day, seven days a week, unless given 

permission to leave;

• He not have any contact with family members, 

casual relations, or friends unless approved by 

his case manager and treatment provider; and

• He actively participate and make progress in 

his outpatient treatment program.

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

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

[requirements 1 & 8]).

The evidence showed that:

• On February 26, 2012, the appellant removed his 

tracking device and left the transition center

without approval. (R.R. IV:45-46).

• The appellant was found at his girlfriend’s 

apartment when he had not been approved for

contact with his girlfriend. (R.R. IV:49-51,

94-95, 150-51).

• The appellant was discharged from the treatment 

program for lack of progress; specifically, he 
16

was not cooperative and did not treat the 

program seriously. (R.R. IV:153, 155-57, 167-

72, VIII:State’s Exhibit #7).

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

appellant violated at least three requirements of his 

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

C. Conclusion

The appellant’s conviction for three separate 

violations of his civil commitment requirements does 

not violate his double jeopardy protection against 

multiple punishments because each violation was an 

allowable unit of prosecution and supported by the 

evidence.

The appellant’s first ground for review should be 

denied.
17

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

TRIAL COURT JURISDICTION

Appellant's Contention:

The appellant contends that the trial court lacked 

jurisdiction over this prosecution because his appeal 

from his civil commitment order was still pending.

State's Reply:

Civil commitment orders are effective immediately. 

A prosecution for violating its requirements may occur 

despite a pending appeal of that order.

Arguments and Authorities:

In criminal cases, a conviction from which an 

appeal has been taken is not considered to be a final 

conviction until that conviction is affirmed by the 

appellate court and mandate is issued. Fletcher v. 

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

criminal-case finality rule derives from specific 
18

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

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

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

A sexually violent predator commitment proceeding, 

however, is not criminal matter. In re Commitment of 

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

violent predator commitment proceedings are a civil 

matter). A civil commitment proceeding is subject to 

the rules of procedure and appeal for civil cases. In 

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

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

Safety Code §841.146(b).

In civil cases, a judgment’s finality is contextdependent. See Long v. Castle Tex. Prod. Ltd. P’ship, 

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

appeal does not automatically suspend the enforcement 

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

 

3 The State does not dispute that the appellant’s civil 

commitment appeal was still pending when he violated 

its requirements. See In re Commitment of Stevenson, 

2013 WL 5302591 (Tex. App. – Beaumont September 19, 

2013, no pet.) (not designated for publication).
19

Court should instead look at the statutory language.

The Texas Health and Safety Code expressly states:

The commitment order is effective immediately 

on entry of the order.

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

suggests that the Legislature intended for the civil 

commitment requirements to have immediate effect and 

immediate consequences for any violation. See In re 

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

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

is effective even while the case is on appeal). 

Legislative interpretation does not generally allow the 

Court to ignore express statutory language. See Boykin 

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

(where the statute is clear and unambiguous, the 

Legislature must be understood to mean what it has 

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

subtract from such a statute).

Furthermore, section 841.085 does not use the term 

“final”; rather, it states “after having been 
20

adjudicated and civilly committed as a sexually violent 

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

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

statutes, such as the repeat offender statutes and the 

habeas corpus statute refer to “final convictions” or a 

defendant being “finally convicted”. See Tex. Penal 

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

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

reinforces that the Legislature intended for the civil 

commitment requirements to have immediate effect.

In sum, given the civil commitment order’s 

immediate effect, the trial court had jurisdiction over 

this prosecution despite the order’s pending appeal.

The appellant’s second ground for review should be 

denied.
21

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

DENIAL OF MOTION TO QUASH INDICTMENT

Appellant's Contention:

The appellant contends that the trial court 

improperly denied his motion to quash his indictment 

because his civil commitment order was pending appeal.

State's Reply:

The pendency of an appeal challenging a civil 

commitment order is not relevant to the validity of an 

indictment for violation its requirements.

 

Arguments and Authorities:

The appellant filed a pre-trial motion to quash his 

indictment because his civil commitment order was 

pending appeal when he violated its requirements. 

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

(R.R. II:10).

In evaluating the denial of a motion to quash, an 
22

indictment should be analyzed to determine whether it

states on its face the facts necessary to allege that 

an offense was committed, to bar a subsequent 

prosecution for the same offense, and to give the 

accused notice of the precise offense with which he has 

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

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

indictment herein, on its face:

• Identifies the appellant as the defendant;

• Identifies the sexually violent predator 

judgment and civil commitment by date and cause 

number; and

• Identifies how and when the appellant

intentionally or knowingly violated its

requirements.

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

requisite notice.

Whether a defendant must comply with a civil 

commitment order still pending appeal is not relevant 

to the issue of whether an indictment should be

quashed. See Miller v. State, 333 S.W.3d 352, 358 
23

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

(appellant's defense that he was confined when he 

violated the civil commitment order was irrelevant to 

whether the trial court should have granted a motion to 

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

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

designated for publication) (argument that defendant

was not required to comply with civil commitment order 

still pending appeal is a defensive theory and not 

relevant to whether indictment should be quashed). 

Thus, the trial court properly denied the appellant’s 

motion to quash his indictment.

The appellant’s third ground for review should be 

denied.
24

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

DENIAL OF MOTION FOR DIRECTED VERDICT

Appellant's Contention:

The appellant contends that the trial court 

improperly denied his motion directed verdict.

State's Reply:

Civil commitment orders are effective immediately. 

The conclusion of an appeal challenging that order is 

not an element of prosecution for violating its 

requirements.

Arguments and Authorities:

The appellant moved for a directed verdict on the 

basis that his civil commitment order was not final 

since it was still pending appeal when he violated its 

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

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

The civil commitment violation prosecution statute 
25

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

describing the civil commitment order. See Tex. Health 

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

State prove that the defendant had been adjudicated and 

civilly committed as a sexually violent predator when 

he violated his commitment requirements. See Tex. 

Health & Safety Code §841.085(a).

The State proved both these elements by showing 

that:

• The appellant was adjudicated as a sexually 

violent predator and civilly committed on 

September 14, 2011. (R.R. IV;38, 42, 

VIII:State’s Exhibits #1 & 2).

• The appellant violated its requirements when:

 He removed his tracking device and left 

the transition center without approval. 

(R.R. IV:45-46);

 He was located at his girlfriend’s 

apartment with whom he had not been 

approved to have contact. (R.R. IV:49-51, 

94-95, 150-51); and

 He was discharged from the treatment 

program for not being cooperative or 

treating the program seriously. (R.R. 

IV:153, 155-57, 167-72, VIII:State’s 
26

Exhibit #7).

Thus, the trial court properly denied the appellant’s 

motion for directed verdict.

Furthermore, as previously addressed, the statutory 

language clearly indicates that the Legislature 

intended for the civil commitment requirements to have 

immediate effect and immediate consequences for any 

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

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

The appellant’s fourth ground for review should be 

denied.
27

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

EXCLUSION OF EVIDENCE

Appellant's Contention:

The appellant contends that the trial court 

improperly excluded evidence that his civil commitment 

order was pending appeal.

State's Reply:

The “finality” of a civil commitment order is a 

question of law for the trial court. It is not 

relevant to any question of fact for the jury.

 

Arguments and Authorities:

The trial court excluded evidence that the 

appellant’s civil commitment order was pending appeal 

when he violated its requirements on the State’s 

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

Evidence is relevant if it has any tendency to make 

the existence of a fact that is of consequence to the 
28

determination of the action more probable or less 

probable than it would be without the evidence. Tex. 

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

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

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

determined by the trial court and not by a jury. 

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

App. 2012).

Since the legal status of the appellant’s civil 

commitment order was a question of law, the trial court 

properly excluded evidence that the commitment order 

was pending appeal as irrelevant to any issue before 

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

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

properly denied the jury opportunity to decide whether 

a New Mexico offense was substantially similar to 

various statutory crimes mandating a life sentence 

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

they are substantially similar is a question of law 

involving the interpretation of the respective 
29

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

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

statutes to determine their similarity under Texas 

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

determined by the trial court and not the jury).

Furthermore, as previously addressed, the State is 

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

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

defendant had been adjudicated and civilly committed as 

a sexually violent predator when he violated his 

commitment requirements). Thus, evidence regarding the 

civil commitment order’s appellate status is irrelevant

to any consequential fact for the jury consideration in 

determining whether the appellant violated the order’s 

requirements. See Tex. R. Evid. 401.

The appellant’s fifth ground for review should be

denied.
30

CONCLUSION AND PRAYER

The Court of Appeals properly upheld the 

appellant’s conviction and sentence. Therefore, the 

State prays that its judgment be upheld.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR

Chief, Post-Conviction

/s/ Steven W. Conder 

STEVEN W. CONDER, Assistant

Criminal District Attorney

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672

State Bar No. 24073106

COAAppellatealerts@tarrantcountytx.gov

LISA MCMINN

State Prosecuting Attorney

Austin, Texas

CERTIFICATE OF SERVICE

True copies of the State's brief have been 

electronically served on opposing counsel, the Hon. 
31

Scott Walker (scott@lawyerwalker.com), 222 W. Exchange 

Avenue, Fort Worth, Texas 76164; and the State 

Prosecuting Attorney, the Hon. Lisa McMinn 

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

Texas 78711-3046, on this, the 16th day of July, 2015.

/s/ Steven W. Conder 

STEVEN W. CONDER

CERTIFICATE OF COMPLIANCE

This document complies with the typeface 

requirements of Tex. R. App. P. 9.4(e). It has been 

prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This 

document complies with the word-count limitations of 

Tex. R. App. P. 9.4(i). It contains approximately 3557

words, excluding those parts exempted, as computed by 

Microsoft Office Word 2010.

/s/ Steven W. Conder

STEVEN W. CONDER

c18.stevenson eric dwayne.br/cca