IN THE TENTH COURT OF APPEALS
No. 10-22-00360-CV
IN RE THE COMMITMENT OF MILTON EVON EDDINGTON
From the 272nd District Court Brazos County, Texas Trial Court No. 21-003304-CV-272
MEMORANDUM OPINION
In one issue, appellant, Milton Evon Eddington, contends the evidence is legally
and factually insufficient to support the trial court’s finding that he is a repeat sexually
violent offender. Specifically, Eddington contends that the State cannot use a prior
conviction to which he pleaded “nolo contendere” to satisfy the State’s burden of proving
that he has been convicted of two sexually violent offenses under Chapter 841 of the Texas
Health and Safety Code. We affirm.
Background
In 1982, Eddington was first convicted of rape of a child. The trial court sentenced
Eddington to ten years in prison, suspended the sentence, and placed him on probation for ten years. Thereafter, the State filed a motion to revoke Eddington’s probation,
alleging numerous violations of the terms and conditions of his probation. On September
11, 1984, the court revoked Eddington’s probation and sentenced him to ten years in
prison. In 1997, Eddington pleaded nolo contendere to sexual assault of a child and was
sentenced to thirty-five years in prison.
On December 8, 2021, the State filed an original petition, alleging that Eddington
is a sexually violent predator and requesting that he be committed civilly for treatment
and supervision. In its original petition, the State used Eddington’s 1982 conviction for
rape of a child and his 1997 conviction for sexual assault of a child to assert that he is a
repeat sexually violent offender. See TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1),
(b).
After a trial, the jury found beyond a reasonable doubt that Eddington is a sexually
violent predator. The trial court signed a final judgment in accordance with the jury’s
verdict and a civil-commitment order. This appeal followed.
Standard of Review
Proceedings under the Sexually Violent Predator Act (“SVPA”) are civil in nature,
but because the State’s burden of proof at trial is the same as in a criminal case, we review
verdicts in cases brought under the SVPA using the standard of review applied in
criminal cases. In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston
[1st Dist.] 2015, pet. denied). When reviewing a legal-sufficiency challenge to the
In re The Commitment of Eddington Page 2 evidence in a sexually violent-predator case, we assess all the evidence in the light most
favorable to the verdict to determine whether a rational jury could find, beyond a
reasonable doubt, each of the elements that the State must prove to support a judgment
of civil commitment. In re Commitment of H.L.T., 549 S.W.3d 656, 661 (Tex. App.—Waco
2017, pet. denied) (citing In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—
Beaumont 2002, pet. denied)).
The Texas Supreme Court has articulated the proper standard for factual-
sufficiency review of a finding that a person is a sexually violent predator as follows:
The appellate standard governing factual-sufficiency review of a finding that a person is a sexually violent predator is whether, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of the verdict, along with undisputed facts contrary to the verdict, is so significant that the factfinder could not have found beyond a reasonable doubt that the statutory elements were met.
In re Commitment of Stoddard, 619 S.W.3d 665, 677 (Tex. 2020).
Applicable Law
As defined by the Legislature, a sexually violent predator is a person who “(1) is a
repeat sexually-violent offender; and (2) suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence.” TEX. HEALTH & SAFETY
CODE § 841.003(a). “[A] person is a repeat sexually violent offender . . . if the person is
convicted of more than one sexually violent offense and a sentence is imposed for at least
one of the offenses . . . .” Id. § 841.003(b). As relevant here, rape of a child is the equivalent
of sexual assault or aggravated sexual assault. See Wisdom v. State, 708 S.W.2d 840, 843 In re The Commitment of Eddington Page 3 (Tex. Crim. App. 1986) (“The Legislature incorporated the old laws (Rape, Aggravated
Rape, Sexual Abuse, Aggravated Sexual Abuse, Rape of a Child, Sexual Abuse of a Child)
into two new laws (Sexual Assault and Aggravated Sexual Assault; V.T.C.A., Penal Code
Secs. 22.011 and 22.021).”); see also Reyes v. State, 119 S.W.3d 844, 847 (Tex. App.—San
Antonio 2003, no pet.) (“The now-repealed Penal Code provisions, including the offense
of rape of a child, are undeniably the statutory predecessors of the modern-day offenses
of sexual assault and aggravated sexual assault.”) (citation omitted). Moreover, sexual
assault and aggravated sexual assault are both sexually violent offenses under the SVPA.
See id. § 841.002(8)(A); see also TEX. PENAL CODE ANN. §§ 22.011, 22.021
Discussion
In his sole issue on appeal, Eddington contends that the evidence is legally and
factually insufficient to support the element that he is a “repeat sexually violent
predator.” Specifically, Eddington argues that the State cannot use his 1997 conviction
for sexual assault of a child because article 27.02(5) of the Texas Code of Criminal
Procedure prohibits the use of a conviction based on a plea of nolo contendere in a civil
suit. See TEX. CODE CRIM. PROC. ANN. art. 27.02(5).
Article 27.02(5) of the Texas Code of Criminal Procedure provides that a nolo
contendere plea has the same effect as a plea of guilty, “except that such plea may not be
used against the defendant as an admission in any civil suit based upon or growing out
of the act upon which the criminal prosecution is based.” Id. However, the Texas Code
In re The Commitment of Eddington Page 4 of Criminal Procedure does not generally apply to a civil-commitment case. See, e.g., In
re Commitment of McCafferty, No. 02-20-00073-CV, 2021 Tex. App. LEXIS 5071, at *18 (Tex.
App.—Fort Worth June 24, 2021, no pet.) (mem. op.) (citing In re Commitment of Price, No.
06-16-00077-CV, 2017 Tex. App. LEXIS 4837, at *5 (Tex. App.—Texarkana May 26, 2017,
pet. denied) (mem. op.)). Rather, under section 841.146 of the Texas Health and Safety
Code, “a civil commitment proceeding is subject to the rules of procedure and appeal for
civil cases.” TEX. HEALTH & SAFETY CODE ANN. § 841.146(a)-(b). Therefore, like our
coordinate appellate courts, we too hold that article 27.05(2) of the Texas Code of
Criminal Procedure does not apply to civil-commitment cases. 1
In the alternative, Eddington argues that Texas Rule of Evidence 410(a)(2)
prohibited the State from using his 1997 conviction to satisfy the element that he is a
“repeat sexually violent predator” because a plea of nolo contendere “is not admissible”
in a “civil case . . . against the defendant who made the plea.” See TEX. R. EVID. 410(a)(2).
This argument also lacks merit.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE TENTH COURT OF APPEALS
No. 10-22-00360-CV
IN RE THE COMMITMENT OF MILTON EVON EDDINGTON
From the 272nd District Court Brazos County, Texas Trial Court No. 21-003304-CV-272
MEMORANDUM OPINION
In one issue, appellant, Milton Evon Eddington, contends the evidence is legally
and factually insufficient to support the trial court’s finding that he is a repeat sexually
violent offender. Specifically, Eddington contends that the State cannot use a prior
conviction to which he pleaded “nolo contendere” to satisfy the State’s burden of proving
that he has been convicted of two sexually violent offenses under Chapter 841 of the Texas
Health and Safety Code. We affirm.
Background
In 1982, Eddington was first convicted of rape of a child. The trial court sentenced
Eddington to ten years in prison, suspended the sentence, and placed him on probation for ten years. Thereafter, the State filed a motion to revoke Eddington’s probation,
alleging numerous violations of the terms and conditions of his probation. On September
11, 1984, the court revoked Eddington’s probation and sentenced him to ten years in
prison. In 1997, Eddington pleaded nolo contendere to sexual assault of a child and was
sentenced to thirty-five years in prison.
On December 8, 2021, the State filed an original petition, alleging that Eddington
is a sexually violent predator and requesting that he be committed civilly for treatment
and supervision. In its original petition, the State used Eddington’s 1982 conviction for
rape of a child and his 1997 conviction for sexual assault of a child to assert that he is a
repeat sexually violent offender. See TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1),
(b).
After a trial, the jury found beyond a reasonable doubt that Eddington is a sexually
violent predator. The trial court signed a final judgment in accordance with the jury’s
verdict and a civil-commitment order. This appeal followed.
Standard of Review
Proceedings under the Sexually Violent Predator Act (“SVPA”) are civil in nature,
but because the State’s burden of proof at trial is the same as in a criminal case, we review
verdicts in cases brought under the SVPA using the standard of review applied in
criminal cases. In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston
[1st Dist.] 2015, pet. denied). When reviewing a legal-sufficiency challenge to the
In re The Commitment of Eddington Page 2 evidence in a sexually violent-predator case, we assess all the evidence in the light most
favorable to the verdict to determine whether a rational jury could find, beyond a
reasonable doubt, each of the elements that the State must prove to support a judgment
of civil commitment. In re Commitment of H.L.T., 549 S.W.3d 656, 661 (Tex. App.—Waco
2017, pet. denied) (citing In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—
Beaumont 2002, pet. denied)).
The Texas Supreme Court has articulated the proper standard for factual-
sufficiency review of a finding that a person is a sexually violent predator as follows:
The appellate standard governing factual-sufficiency review of a finding that a person is a sexually violent predator is whether, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of the verdict, along with undisputed facts contrary to the verdict, is so significant that the factfinder could not have found beyond a reasonable doubt that the statutory elements were met.
In re Commitment of Stoddard, 619 S.W.3d 665, 677 (Tex. 2020).
Applicable Law
As defined by the Legislature, a sexually violent predator is a person who “(1) is a
repeat sexually-violent offender; and (2) suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence.” TEX. HEALTH & SAFETY
CODE § 841.003(a). “[A] person is a repeat sexually violent offender . . . if the person is
convicted of more than one sexually violent offense and a sentence is imposed for at least
one of the offenses . . . .” Id. § 841.003(b). As relevant here, rape of a child is the equivalent
of sexual assault or aggravated sexual assault. See Wisdom v. State, 708 S.W.2d 840, 843 In re The Commitment of Eddington Page 3 (Tex. Crim. App. 1986) (“The Legislature incorporated the old laws (Rape, Aggravated
Rape, Sexual Abuse, Aggravated Sexual Abuse, Rape of a Child, Sexual Abuse of a Child)
into two new laws (Sexual Assault and Aggravated Sexual Assault; V.T.C.A., Penal Code
Secs. 22.011 and 22.021).”); see also Reyes v. State, 119 S.W.3d 844, 847 (Tex. App.—San
Antonio 2003, no pet.) (“The now-repealed Penal Code provisions, including the offense
of rape of a child, are undeniably the statutory predecessors of the modern-day offenses
of sexual assault and aggravated sexual assault.”) (citation omitted). Moreover, sexual
assault and aggravated sexual assault are both sexually violent offenses under the SVPA.
See id. § 841.002(8)(A); see also TEX. PENAL CODE ANN. §§ 22.011, 22.021
Discussion
In his sole issue on appeal, Eddington contends that the evidence is legally and
factually insufficient to support the element that he is a “repeat sexually violent
predator.” Specifically, Eddington argues that the State cannot use his 1997 conviction
for sexual assault of a child because article 27.02(5) of the Texas Code of Criminal
Procedure prohibits the use of a conviction based on a plea of nolo contendere in a civil
suit. See TEX. CODE CRIM. PROC. ANN. art. 27.02(5).
Article 27.02(5) of the Texas Code of Criminal Procedure provides that a nolo
contendere plea has the same effect as a plea of guilty, “except that such plea may not be
used against the defendant as an admission in any civil suit based upon or growing out
of the act upon which the criminal prosecution is based.” Id. However, the Texas Code
In re The Commitment of Eddington Page 4 of Criminal Procedure does not generally apply to a civil-commitment case. See, e.g., In
re Commitment of McCafferty, No. 02-20-00073-CV, 2021 Tex. App. LEXIS 5071, at *18 (Tex.
App.—Fort Worth June 24, 2021, no pet.) (mem. op.) (citing In re Commitment of Price, No.
06-16-00077-CV, 2017 Tex. App. LEXIS 4837, at *5 (Tex. App.—Texarkana May 26, 2017,
pet. denied) (mem. op.)). Rather, under section 841.146 of the Texas Health and Safety
Code, “a civil commitment proceeding is subject to the rules of procedure and appeal for
civil cases.” TEX. HEALTH & SAFETY CODE ANN. § 841.146(a)-(b). Therefore, like our
coordinate appellate courts, we too hold that article 27.05(2) of the Texas Code of
Criminal Procedure does not apply to civil-commitment cases. 1
In the alternative, Eddington argues that Texas Rule of Evidence 410(a)(2)
prohibited the State from using his 1997 conviction to satisfy the element that he is a
“repeat sexually violent predator” because a plea of nolo contendere “is not admissible”
in a “civil case . . . against the defendant who made the plea.” See TEX. R. EVID. 410(a)(2).
This argument also lacks merit.
First, Eddington’s argument regarding Rule 410(a)(2) is that his 1997 conviction
should not have been admitted into evidence. In other words, this argument challenges
the admissibility of the evidence. The record reflects that Eddington did not object in the
1 We also note that article 27.05(2) of the Texas Code of Criminal Procedure states that a plea of nolo contendere “may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (emphasis added). In this case, the State did not attempt to use Eddington’s 1997 conviction as an admission against him. Instead, the State only introduced the conviction to show that Eddington has been convicted of a sexual offense.
In re The Commitment of Eddington Page 5 trial court to the admission of his 1997 conviction under Rule 410(a)(2). Therefore,
Eddington did not preserve his admissibility argument under Rule 410(a)(2). See TEX. R.
APP. P. 33.1(a).
Second, even if Eddington had preserved his Rule 410(a)(2) argument for appeal,
it would fail. This is because “Rule 410 is not intended to prevent the State from
proceeding under a statute to impose civil consequences that result from criminal
convictions.” In re Young, 410 S.W.3d 542, 552 (Tex. App.—Beaumont 2013, orig.
proceeding) (addressing a discovery dispute in a proceeding under the SVPA where
appellant objected to the State’s requests for admission regarding whether he has
charged, convicted, and sentenced in three separate criminal cases where appellant had
entered pleas of nolo contendere) (citing Turton v. State Bar of Tex., 775 S.W.2d 712, 715
(Tex. App.—San Antonio 1989, writ denied) (concluding that Rule 410 did not preclude
admission of a nolo contendere plea in an action brought under the State Bar Act to
suspend an attorney for conviction of a serious crime)). Therefore, based on the
foregoing, the State was entitled to rely on Eddington’s 1997 conviction, regardless of his
plea of nolo contendere, in this case brought under the SVPA.
As mentioned earlier, the State presented evidence of two sexually violent
offenses—Eddington’s 1982 conviction for rape of a child and his 1997 conviction for
sexual assault of a child. Eddington does not challenge the second element—whether he
suffers from a behavioral abnormality. Viewing the evidence in the light most favorable
In re The Commitment of Eddington Page 6 to the verdict, we hold that a rational jury could have found, beyond a reasonable doubt,
that Eddington is a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§
841.003(a), 841.062; In re Commitment of H.L.T., 549 S.W.3d at 661; In re Commitment of
Mullens, 92 S.W.3d at 885. Furthermore, in light of the entire record, we conclude that the
evidence is also factually sufficient to support the jury’s verdict. See TEX. HEALTH &
SAFETY CODE ANN. §§ 841.003(a), 841.062; In re Commitment of Stoddard, 619 S.W.3d at 677.
We overrule Eddington’s sole issue on appeal.
MATT JOHNSON Justice
Before Chief Justice Gray Justice Johnson, and Justice Smith (Chief Justice Gray concurs in the judgment. A separate opinion will not issue.) Affirmed Opinion delivered and filed May 3, 2023 [CV06]
In re The Commitment of Eddington Page 7