PD-0122-15 February 4, 2015
NO. __________________
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Eric Dwayne Stevenson, Appellant v. The State of Texas, Appellee
***************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
SECOND APPELLATE DISTRICT OF TEXAS
FORT WORTH, TEXAS
NO. 02-13-00537-CR
TARRANT COUNTY TRIAL COURT NO. 1272720
R. Scott Walker STATE BAR # 24004972 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 478-9999 (817) 977-0163 FACSIMILE Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED 1 TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . 2 INDEX OF AUTHORITIES . . . . . . . . . . . . . . 3 STATEMENT DECLINING ORAL ARGUMENT . . . . . . . . 4 STATEMENT OF THE CASE . . . . . . . . . . . . . . 5 STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . . 6 QUESTIONS PRESENTED FOR REVIEW NUMBER ONE (The convictions on Count I, Count II, and Count III are for the same offense for double jeopardy purposes). NUMBER TWO: The trial court had no jurisdiction in this case because the prior jurisdictional judgment was on appeal and was, therefore, not a final judgment. NUMBER THREE: The trial court erred by denying Appellant’s motion to quash the indictment. NUMBER FOUR: The trial court erred by denying Appellant’s motion for directed verdict. NUMBER FIVE: The trial court erred by sustaining the State’s relevance motion to Appellant’s proffered evidence that the commitment order was on appeal). . . . . . . 6 PRAYER . . . . . . . . . . . . . . . . . . . . .17 CERTIFICATE OF SERVICE . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE . . . . . . . . . . 18
2 INDEX OF AUTHORITIES
CASES
Ex Parte Manuel Cavazos, 203 S.W.3d 333 (Tex.Crim.App. 2006). . . 8, 10
Duckett v. State, 454 S.W.2d 755 (Tex.Crim.App. 1970) . . . . . 9
Gongora v. State, 916 S.W.2d 570 (TexApp.—Houston 1st dist. 1996, PDRR) . . . . . . . . . . . . . . . 7, 10
Gonzalez v. State, 8 S.W.3d 640 (Tex.Crim.App. 2000). . . . . 8, 9
Holberg v. State, 38 S.W.3d 137 (Tex.Crim.App. 1987) . . . . . 14
Jordan v. State, 36 S.W.3d 871 (Tex.Crim.App. 2001) . . . . . 15
Lopez v. State, 108 S.W.3d 293 (Tex.Crim.App. 2003) . . . 7, 10
Mobley v. State, 2008 WL 4414254 (Tex.App.—Texarkana 2008, no pet.) . . . . . . . . . . . . . . . . . . 8
Rabb v. State, 730 S.W.2d 751 (Tex.Crim.App. 1987) . . . . 14
Smith v. Doe, 538 U.S. 84, 101, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) . . . . . . . . . . . . . 13
Tamez v. State, 980 S.W. 2d 845 (Tex.Crim.App. 1998) . . 15, 16
3 State v. Baker, 761 S.W.2d 465 (Tex.App.—Eastland, 1988, no pet.) . . . . . . . . . . . . . . . . . . 7
STATUTES
Tex.Health and Safety Code, §841.085 . . . . . . . . . . . . . . . . . 11
Tex. Rules of App. Proc. §25.2(g) . . . . . . . . . . . . . . . . 15, 16
STATEMENT DECLINING ORAL ARGUMENT
Oral argument of this case is not requested on
behalf of Appellant, and is hereby waived.
4 All references to Texas statutes, rules, etc. are references to the latest edition published by West Publishing Company, unless otherwise indicated. ERIC DWAYNE STEVENSON, Appellant-Applying for Review V. THE STATE OF TEXAS, Appellee
************ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ************ TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
This appeal has resulted from a criminal prosecution for violation of civil commitment requirements for sexually violent predators. (C.R. Vol. 1, p. 123). The jury was charged on three separate counts of the same offense. (C.R. Vol. 1, p. 104). Appellant was found guilty on all three counts by a jury. The jury assessed punishment at seventeen years on each count. (C.R. Vol. 1, p. 123-138).
5 STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written non-published memorandum
opinion on January 15, 2015. The deadline for
filing a Petition for Discretionary Review is
February 15, 2015.
QUESTIONS PRESENTED FOR REVIEW
ONE: The convictions on Count I, Count II, and
Count III are for the same offense for double
jeopardy purposes.
TWO: The trial court had no jurisdiction in this
case because the prior jurisdictional judgment was
on appeal and was, therefore, not a final judgment.
THREE: The trial court erred by denying
Appellant’s motion to quash the indictment.
FOUR: The trial court erred by denying
Appellant’s motion for directed verdict.
FIVE: The trial court erred by sustaining the
State’s relevance objection to Appellant’s
proffered evidence that the commitment order was on
appeal.
6 ARGUMENT
ARGUMENT QUESTION NUMBER ONE
QUESTION NUMBER ONE RESTATED: The convictions
on Count I, Count II, and Count III are for the
same offense for double jeopardy purposes.
APPLICABLE LAW: Due to the fact that the
statute that allows for civil commitment for
sexually violent predators is relatively new, there
are no cases specifically on point. Therefore, the
Court of Appeals used a case that has nothing to do
with a civil commitment order in order to to
overrule Appellant’s first issue, saying that each
separate violation of the commitment order is a
separate offense. The case was a loan fraud case,
and is in no way on point. However, there are
cases involving analogous situations. The law
relating to double jeopardy when multiple
convictions are handed down at the same time, as in
this case, is well developed. For example, two
separate convictions for possession of marijuana
and delivery of the same marijuana is a violation
of the double jeopardy provisions of the Texas and 7 United States Constitutions. Gongora v. State, 916
S.W.2d 570, 577 (Tex.App.—Houston 1st Dist. 1996,
PDRR), State v. Baker, 761 S.W.2d 465, 467
(Tex.App.—Eastland, 1988, no pet.), Lopez v. State,
108 S.W.3d 293, 300 (Tex.Crim.App. 2003). Also,
two separate convictions for Burglary of a
Habitation when there is two victims but only one
unlawful entry is also barred by the double
jeopardy provisions of the Texas and United States
Constitutions. Ex Parte Manuel Cavazos, 203 S.W.3d
333,337 (Tex.Crim.App. 2006). An unpublished
memorandum opinion out of the Texarkana Court of
Appeals cited Cavazos for the same proposition.
The case, while not authoritative, could be
helpful. Mobley v. State, 2008 WL 4414254
(Tex.App.—Texarkana 2008, no pet.).
A double jeopardy complaint that a defendant
was convicted of the same offense multiple times
during the same trial can be raised for the first
time on appeal, as is cited below:
. . . because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on 8 appeal . . . when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim. App. 2000).
The Court in Gonzalez went on to say that when the
two disputed convictions occurred in the same
court, on the same day, before the same judge, and
were based on the same evidence, as was the case in
Duckett v. State, 454 S.W.2d 755 (Tex.Crim.App.
1970), there is clearly no state interest that
would be served by requiring an objection in order
to preserve the jeopardy issue. Gonzalez v. State,
8 S.W.3d 640, 643 (Tex.Crim. App. 2000).
When multiple convictions result from one
trial for similar or identical offenses, the
question of whether the double jeopardy provisions
are violated is determined by looking at the
legislative intent as to the allowable unit of
prosecution.
The allowable unit of prosecution for burglary
is the unlawful entry, while the allowable unit of
9 prosecution for an assaultive offense is each
complainant, as is cited below:
The allowable unit of prosecution for an assaultive offense is each complainant. . . Burglary, however, is not an assaultive offense; rather, its placement within Title 7 indicates that the legislature determined burglary to be a crime against property. Thus, the complainant is not the appropriate allowable unit of prosecution in a burglary; rather, the allowable unit of prosecution in a burglary is the unlawful entry. Applicant’s convictions violate double jeapardy because he was punished multiple times for a single unlawful entry. Ex Parte Manuel Cavazos, 203 S.W.3d 333,337 (Tex.Crim.App. 2006).
The following is another example: The allowable
unit of prosecution in a drug case is the illegal
substance. Gongora v. State, 916 S.W.2d 570, 577
(Tex.App.—Houston 1st Dist. 1996, PDRR), Lopez v.
State, 108 S.W.3d 293, 300 (Tex.Crim.App. 2003).
ANALYSIS: The convictions on Count I, Count
II, and Count III were for the same offense for
double jeopardy purposes. Appellant was convicted
of three separate counts of violation of civil
commitment requirements for sexually violent
predators. Again, there are no Texas cases that
explore the allowable unit of prosecution in a
10 violation of civil commitment requirements for
sexually violent predators. However, it would
appear that the allowable unit of prosecution would
be the violation of one or more of the rules
contained in the commitment order. The State will
probably argue that each separate violation
constitutes the allowable unit of prosecution.
However, there is nothing contained in the statute
that would indicate that the legislature intended
multiple punishments for each separate violation of
the order.
Chapter 841 of the Health and Safety Code
provides the regulations for civil commitment of
sexually violent predators. Section 841.085
contains the criminal penalty for the offense:
(a) A person commits an offense if, after having been adjudicated and civilly committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement imposed under Section 841.082(b) An offense under this section is a felony of the third degree. . . (Texas Health and Safety Code §841.085).
Above-mentioned Section 841.082 provides a list of
seven requirements that must be included in the 11 order. There is an eighth requirement listed,
which is any other requirements determined
necessary by the judge. Some of the eight
mandatory requirements listed in the statute are
written very broadly, which indicates that the
listed requirements could actually number a lot
more than eight. For example: Requirement four
states that the person must comply with all written
requirements imposed by the case manager or
otherwise by the Office of Violent Sex Offender
Management. These requirements could be numerous.
If the legislature intended that each violation of
these numerous requirements could be a separate
offense, it would appear that they would have
specifically stated so. After all, failure to
comply with any one of the requirements would most
likely not be illegal for anyone who had not been
found to be a sexually violent predator under the
statute. It would not be fundamentally fair to
impose multiple felony punishments for what would
usually be very minor infractions of the rules.
Doing so would be like allowing multiple 12 convictions in a probation revocation proceeding
because the probationer violated multiple
conditions of probation. A 2003 United States
Supreme Court case contains language that
substantiates this argument. The Court stated that
a sex offender who fails to comply with the
reporting requirements may be subjected to a
criminal prosecution for that failure. Smith v.
Doe, 538 U.S. 84, 101,102, 123 S.Ct. 1140, 155
L.Ed.2d 164 (2003). The language is that if one
fails to comply with the requirements, he or she
may be subjected to a criminal prosecution.
‘Criminal prosecution’ is singular which indicates
only one single prosecution for multiple
violations. The multiple punishments in this case
violate double jeopardy, and two of the three
convictions should be vacated.
In the instant case, Trial Counsel did not
object to the jeopardy violation. However, the
jeopardy violation is clear from the face of the
record, and there is no State interest in requiring
an objection in order to preserve error when the 13 two convictions happened on the same day, in the
same court, and in front of the same judge. Two of
the cases are barred under double jeopardy
provisions. Therefore, the cases should be
reversed.
ARGUMENT QUESTIONS TWO THROUGH FIVE
The Court of Appeals overruled issues two
through five by stateing that the statute that
criminalizes violations of a civil commitment order
does not require that the commitment order first be
final for appellate purposes before violations are
criminal. This is true, but it is also true that
the statute does not say that the commitment order
need not be final for appellate purposes before
violations are criminal. The statute is merely
silent as to this issue. Therefore, it appears
prudent to look to criminal law in this regard
since this statute has criminal penalties.
Therefore, Appellant’s argument on appeal is more
persuasive than the appellate opinion.
14 Applicable Law: It is well settled that a
jurisdictional challenge may be raised for the
first time on appeal. Rabb v. State, 730 S.W.2d
751, 752 (Tex.Crim.App. 1987), Holberg v. State, 38
S.W.3d 137, 139 n.9 (Tex.Crim.App. 1987). When a
criminal conviction is on appeal, the judgment is
not a final judgment until the appellate court
affirms the conviction and issues its mandate.
Jordan v. State, 36 S.W.3d 871, 875 (Tex.Crim.App.
2001). A trial court does not have jurisdiction
over a case until the mandate has issued. (Tex.
Rules App. Proc., §25.2 g).
Probably the most analagous situation deals
with DWI cases that are felony offenses because the
defendant has two prior DWI convictions. The prior
convictions must be final convictions. If a prior
DWI conviction is on appeal, it is not a final
conviction. Jordan v. State, 36 S.W.3d 871, 875
(Tex.Crim.App. 2001). A prior DWI conviction used
to enhance a misdemeanor DWI to that of a felony is
jurisdictional because the felony court would not
have jurisdiction over the DWI without the 15 enhancement conviction. Tamez v. State, 980 S.W.
2d 845, 847 (Tex.Crim.App. 1998). Likewise, in a
criminal prosecution for a violation of a
commitment order of a sexually violent predator,
the trial court would not have jurisdiction over
the case absent the civil commitment judgment. The
existence of the civil commitment is an essential
element of the offense, just as the prior DWI
convictions are essential elements of a felony DWI
prosecution. Tamez v. State, 980 S.W.2d 845, 847
(Tex.Crim.App. 1998).
Analysis: The trial court had no
jurisdiction in this case because the prior
jurisdictional judgment was on appeal and was,
therefore, not a final judgment. In trial, the
prosecutor for the State argued to the trial judge
that the commitment statute states that the
commitment order is effective immediately on entry
of the order. It is true that Section 84.081
states just that. However, it does not state
anything about whether a pending appeal stays any
enforcement rights created by the statute. When 16 criminal defendants are placed on probation, the
conditions of probation are also effective
immediately. Nonetheless, the perfection of an
appeal, followed by the filing of the record, stays
any further actions of the trial court in the case
until the appeals court affirms the conviction and
mandate is issued. (Texas Rules of App. Proc.
§25.2g). This statute exists to stimulate
uniformity and reliability. This legitimate
interest is just as prevalent in the instant case
as in probation cases.
The analysis in Issues three through five is
the same as Issue Number Two. Therefore, the
argument will not be repeated.
PRAYER
WHEREFORE, PREMISES CONSIDERED, ERIC DWAYNE
STEVENSON, Appellant, prays that this Petition for
Discretionary Review be granted; that this case be
submitted to the Court; that the Court of Appeals’
decision be reversed and for such other relief for
which he shows himself entitled. 17 Respectfully Submitted,
/s/ R. Scott Walker By: R. SCOTT WALKER 222 W. Exchange Ave. Fort Worth, Texas 76164 (817) 478-9999 (817) 977-0163 Fax Attorney for Appellant
CERTIFICATE OF SERVICE A copy of this petition was served by first class mail to the Office of Criminal District Attorney, Tarrant County Courthouse, 401 W. Belknap, Fort Worth, Texas 76196 and to the State Prosecuting Attorney at P.O. Box 12405, Austin, Texas 78711 on the 3rd day of February, 2015.
/s/ R. Scott Walker R. SCOTT WALKER CERTIFICATE OF COMPLIANCE I certify that this document complies with the length requirements as set forth by the Texas Rules of Appellate Procedure in that this document contains 2839 words, and that the document is in 14 point type.
/s/ R. Scott Walker R. SCOTT WALKER
18 APPENDIX
19 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
Eric Dwayne Stevenson § From Criminal District Court No. 3
§ of Tarrant County (1272720D)
v. § January 15, 2015
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By __/s/ Lee Ann Dauphinot_____________ Justice Lee Ann Dauphinot COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
ERIC DWAYNE STEVENSON APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1272720D
MEMORANDUM OPINION 1
A jury convicted Appellant Eric Dwayne Stevenson of three counts of
violating civil commitment requirements for sexually violent predators 2 and, after
finding the allegations in the repeat offender notice true, assessed his
1 See Tex. R. App. P. 47.4. 2 See Tex. Health & Safety Code Ann. § 841.085(a)–(b) (West 2010). punishment for each count at seventeen years’ confinement and a $5,000 fine.
The trial court sentenced him accordingly.
Appellant brings five issues on appeal, contending that the trial court had
no jurisdiction because his appeal of the commitment order was pending, that the
three convictions violate double jeopardy protections, that the trial court erred by
denying his motion to quash the indictment and his motion for a directed verdict,
and that the trial court abused its discretion by excluding his evidence that the
commitment order was not final. Because the trial court had jurisdiction, double
jeopardy was not implicated, and the trial court did not reversibly err, we affirm
the trial court’s judgment.
Double Jeopardy
In his first issue, Appellant argues that the convictions and sentences on
three counts of the indictment are repeated convictions and punishments for the
same offense for double jeopardy purposes. Section 841.085(a) of the health
and safety code provides that a person commits an 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). 3 Applying the test
and logic of Jones v. State, 4 the gravamen of the offense of violating civil
3 Id. § 841.085(a). 4 323 S.W.3d 885, 889 (Tex. Crim. App. 2010).
2 commitment requirements for sexually violent predators appears to be breaking a
rule imposed not only by the committing court but also by the treatment provider. 5
The Texas Supreme Court has held that the sexually violent predator
commitment statute is civil because the legislature intended it to be civil. 6 Yet
violations of the commitment obligations carry criminal sanctions. 7 Applying the
rule of Jones v. State, it appears that we are required to hold that each violation
of a rule, whether by a single or multiple acts, is a separate violation of Section
841.085(a), carrying criminal penalties for violation of the rules of the civil
commitment. 8 We are therefore compelled to overrule Appellant’s first issue.
Finality of Commitment Order
In his second issue, Appellant contends that the trial court had no
jurisdiction over the criminal case because his appeal of the commitment order
was pending at the time of trial. In his third issue, he contends that the trial court
therefore erred by denying his motion to quash the indictment. In his fourth
issue, he challenges the trial court’s denial of his motion for directed verdict for
5 See id.; see also Tex. Health & Safety Code Ann. § 841.082(a) (West Supp. 2014), § .085(a). 6 In re Commitment of Fisher, 164 S.W.3d 637, 639–40, 654 (Tex.), cert. denied, 546 U.S. 938 (2005). 7 See Tex. Health & Safety Code Ann. § 841.085(a). 8 See id.; Jones, 323 S.W.3d at 889.
3 the same reason. Appellant raises no other challenge in these issues to the
convicting court’s jurisdiction or to the indictment’s validity.
The statute criminalizing violations of civil commitment requirements for
sexually violent predators does not require that the commitment order first be
final for appellate purposes before violations are criminal. 9 A “commitment order
is effective immediately on entry of the order.” 10 Further, in civil cases, the filing
of a notice of appeal does not automatically suspend enforcement of the
judgment. 11 Enforcement of the judgment proceeds unless the judgment is
superseded in accordance with Rule 24. 12 Consequently, Appellant was bound
by the requirements of the order of commitment regardless of the status of his
appeal of that order. 13 The convicting court had jurisdiction over the criminal
case. Additionally, for the reasons set out above, and because the indictment
was valid on its face, the trial court did not err in denying Appellant’s motion to
quash. We overrule Appellant’s second and third issues.
9 See Tex. Health & Safety Code Ann. § 841.085(a). 10 See id. § 841.081(a) (West 2010). 11 See Tex. R. App. P. 25.1(h). 12 See Tex. R. App. P. 24, 25.1(h). 13 See United States v. United Mine Workers of Am., 330 U.S. 258, 294, 67 S. Ct. 677, 696 (1947) (“Violations of an order are punishable as criminal contempt even though the order is set aside on appeal . . . .”); In re Sheshtawy, 154 S.W.3d 114, 126 (Tex. 2004) (citing same and noting that relator remained subject to further contempt proceedings for violating an order before its reversal).
4 In his fourth issue, Appellant challenges the denial of his directed verdict.
He moved for a directed verdict on the basis that there was no final order of
commitment because he had filed a notice of appeal and the appeal was still
pending. He does not otherwise challenge the sufficiency of the evidence to
support his convictions. The trial court admitted State’s Exhibits 1 and 2, certified
copies of the final judgment finding Appellant to be a sexually violent predator
and the commitment order. Again, the commitment order was effective when
issued, and the issuance of mandate of that order was not a necessary
precondition for imposing criminal sanctions for its disobedience. 14 The trial
court therefore did not err by denying Appellant’s motion. We overrule his fourth
issue.
Exclusion of Evidence
In his fifth issue, Appellant argues that the trial court abused its discretion
by excluding on relevance grounds his proffered evidence that the commitment
order was not final because his appeal thereof was pending. Even if the trial
court abused its discretion by excluding the evidence, an issue we do not reach,
any such error would be harmless because the filing of a notice of appeal does
not affect the finality of judgment in a civil case and did not stay the
14 See Tex. Health & Safety Code Ann. § 841.085(a).
5 enforcement of the commitment order in this case. 15 We overrule Appellant’s
fifth issue.
Conclusion
Having overruled Appellant’s five issues on appeal, we affirm the trial
court’s judgment.
/s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
WALKER, J., concurs without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 15, 2015
15 See id. § 841.081(a); Tex. R. App. P. 24, 25.1(h), 44.2(b).