in Re Commitment of Lonnie James

Opinion issued October 7, 2021

In The

Court of Appeals

For The

First District of Texas

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NO. 01-19-00734-CV

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IN RE COMMITMENT OF LONNIE JAMES, Appellant

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Case No. 0579726-0101Z

MEMORANDUM OPINION

In this case, the State filed a petition seeking to have appellant, Lonnie James,

civilly committed under Texas’s Sexually Violent Predators Act (“SVP Act” or “the

Act”). See TEX. HEALTH & SAFETY CODE §§ 841.001–.153. A jury determined that

James is a sexually violent predator, and the trial court signed an order of civil

commitment.

In three issues on appeal, James contends that (1) the State presented factually

insufficient evidence to support the jury’s finding that he is a sexually violent

predator; (2) the trial court erred by granting the State’s motion for partial directed

verdict before he rested his case-in-chief; and (3) the trial court erred by refusing to

instruct the jury that it could return a verdict in his favor—that is, a verdict that he

was not a sexually violent predator—by a 10-2 vote instead of a unanimous vote.

We affirm.

Background

James has nine convictions for sexually violent offenses. He was convicted of

rape in California in 1978, received five years’ probation, and was ordered to

participate in inpatient sex offender treatment. He was also convicted of rape in

Tarrant County in 1984 and was sentenced to confinement for fifteen years. He

served approximately five years of this sentence. The complainants for both of these

offenses were adults. In 1991, while he was still on parole, James was convicted in

Harris County of three counts of aggravated kidnapping and four counts of

aggravated sexual assault of a child arising out of three different incidents with four

child complainants. The trial court assessed James’s punishment at confinement for

thirty years for each offense, with the sentences to run concurrently.

In May 2018, as James’s confinement for the 1991 convictions was coming

to an end, the Harris County District Attorney’s Office and the Special Prosecution

2

Unit filed a petition seeking to have James civilly committed as a sexually violent

predator under the SVP Act. The State alleged that James “is a repeat sexually

violent offender who suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence” and requested that the trial court

commit him for “treatment and supervision.”

Three witnesses testified at trial: Dr. Randall Price, a forensic psychologist;

Dr. Sheri Gaines, a psychiatrist; and James. Dr. Price and Dr. Gaines both reviewed

extensive records, including records describing the details of James’s past

convictions, and interviewed James. Dr. Price also completed three actuarial

measures designed to determine James’s level of psychopathy and risk for

reoffending and committing another sexually violent offense. Both witnesses

testified concerning the facts of each of James’s offenses, which they considered

relevant in determining whether James has a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. They both testified about risk

factors for reoffending that they had identified when reviewing records and

interviewing James, as well as protective factors that operate to decrease that risk.

Dr. Price and Dr. Gaines both diagnosed James as having “other specified

paraphilic disorder, nonconsensual sex with adults and children” and “other

specified personality disorder with antisocial traits.” Both experts testified that, in

3

their professional opinion, James has a behavioral abnormality as defined by the

SVP Act.

James also testified during both the State’s case-in-chief and his own case-in-

chief. During the State’s case-in-chief, James admitted that he had pleaded guilty to

nine sexually violent offenses; that he had been hospitalized for sex offender

treatment and then placed on probation after the California offense; that he received

a fifteen-year sentence following his conviction of the Tarrant County offense; and

that he was currently serving a thirty-year sentence following his conviction of the

seven Harris County offenses. Although James admitted, with respect to the Harris

County offenses, that he kidnapped three of the four child complainants and that he

intended to have sex with these complainants, he denied sexually abusing any of the

child complainants. With respect to the California and Tarrant County offenses,

James admitted having sex with the two adult complainants but testified that it was

consensual. James testified similarly concerning his convictions and his denials of

the conduct underlying the convictions during his own case-in-chief.

Before James rested his case-in-chief, the parties and the trial court held an

off-the-record discussion concerning several issues, including the jury charge. On

the record, James objected to the trial court granting a directed verdict on the first

element of the State’s burden of proof—whether James was a repeat sexually violent

offender because he had been convicted of more than one sexually violent offense

4

and a sentence had been imposed for at least one of the offenses. James argued that

resolution of this question was “within the purview of the jury” and that “[a]ny

finding on the part of the Court might unfairly bias the jury as to their answering of

the second question,” whether James has a behavioral abnormality as defined by the

SVP Act. The trial court stated, “It’s pretty much a foregone conclusion based upon

the evidence that no reasonable juror could disagree with the fact that he is a multiple

offender and has been sentenced at least once for one of those crimes enumerated in

the charge.” The following exchange occurred between the trial court and the State:

The State: I just want to make sure the record is clear that we did ask

the Court for that directed verdict on the first element.

The Court: I think you could ask for it after the close of evidence here.

The State: Yes.

The Court: But if you are making that request right now, I will grant

that.

The State: Yes, Your Honor, we are—we’ve already rested. I think

we are entitled to make a motion at any time—

The Court: I believe so.

The State: —before the jury is instructed, but I will formally ask for

that directed verdict at this time.

The Court: All right. That motion is granted as to the directed verdict.

After the trial court granted the partial directed verdict, James briefly continued

testifying. He once again acknowledged that he had multiple convictions for sexually

violent offenses and denied that he had committed any improper sexual conduct.

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During the charge conference, James acknowledged that a “yes” verdict under

the SVP Act—that is, a verdict that a defendant is a sexually violent predator—must

be unanimous, but he argued that the Act does not specifically require that a “no”

verdict—that is, a verdict that a defendant is not a sexually violent predator—must

be unanimous. He therefore requested a “10-2” instruction, or an instruction that the

jury could answer “no” to the question whether James is a sexually violent predator

by a vote of only ten jurors. The trial court stated that it believed both “yes” and “no”

votes should be unanimous, and it refused to give James’s requested instruction.

The jury charge contained one question: “Do you find beyond a reasonable

doubt that LONNIE JAMES is a sexually violent predator?” The charge instructed

the jury that a person is a “sexually violent predator” if the person (1) is a repeat

sexually violent offender, and (2) suffers from a behavioral abnormality that makes

the person likely to engage in a predatory act of sexual violence. The charge defined

“repeat sexually violent offender” and stated: “The Court has granted a directed

verdict that Respondent, LONNIE JAMES, has been convicted of more than one

sexually violent offense and a sentence was imposed for at least one of the offenses.

Therefore, he is a ‘repeat sexually violent offender’ as defined above.” The charge

also instructed the jury to answer “yes” or “no” to the question and stated:

A “yes” answer must be based on a belief beyond a reasonable doubt.

If you do not find beyond a reasonable doubt that the evidence supports

a “yes” answer, then answer “no.” Your verdict must be unanimous.

That means that all twelve of the jurors must agree to the answer.

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The jury answered “yes” to the question, and the presiding juror certified that the

verdict was unanimous.

The trial court signed a civil commitment order under the SVP Act and a final

judgment ordering that James is a sexually violent predator and that he is to be civilly

committed. James filed a motion for new trial, which was overruled by operation of

law. This appeal followed.

Factual Sufficiency of Evidence

In his first issue, James argues that the State failed to present factually

sufficient evidence to support the jury’s finding that he is a sexually violent

predator.1

1

The State argues that because the burden of proof at trial in SVP cases is beyond a

reasonable doubt, factual sufficiency reviews of the evidence in SVP cases should

be abolished, as the Court of Criminal Appeals has done in criminal cases. See, e.g.,

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that Jackson

v. Virginia standard is only standard appellate court should apply in determining

whether evidence is sufficient to support each element of criminal offense beyond

reasonable doubt). James argues that we should follow the factual sufficiency

analysis that the Fort Worth Court of Appeals conducted in In re Commitment of

Stoddard. See 601 S.W.3d 879, 891–98 (Tex. App.—Fort Worth 2019), rev’d, 619

S.W.3d 665 (Tex. 2020). After James and the State had filed their appellate briefs

in this case, the Texas Supreme Court granted review and decided In re Commitment

of Stoddard. In that case, the supreme court expressly declined to abolish factual

sufficiency review in SVP cases. See In re Commitment of Stoddard, 619 S.W.3d at

676 (“[W]e hold that the ‘right of courts of appeals to review for factual sufficiency’

under the standard expressed herein ‘must continue undisturbed.’”) (quoting Pool

v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)). The court also held that the

factual-sufficiency analysis conducted by the intermediate court in Stoddard did not

comport with the appropriate appellate standard of review. Id. at 678. We therefore

follow the Texas Supreme Court’s guidance in Stoddard and conduct a factual

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A. Standard of Review

A person is a sexually violent predator under the SVP Act if the person (1) is

a repeat sexually violent offender, and (2) suffers from a behavioral abnormality that

makes the person 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); id. § 841.002(8) (defining

“sexually violent offense” to include offense for aggravated sexual assault of child

and aggravated kidnapping “if the person committed the offense with the intent to

violate or abuse the victim sexually”). The SVP Act defines “behavioral

abnormality” as “a congenital or acquired condition that, by affecting a person’s

emotional or volitional capacity, predisposes the person to commit a sexually violent

offense, to the extent that the person becomes a menace to the health and safety of

another person.” Id. § 841.002(2). The Act defines “predatory act” as “an act

directed toward individuals, including family members, for the primary purpose of

victimization.” Id. § 841.002(5). The factfinder shall determine whether, beyond a

reasonable doubt, the person is a sexually violent predator. Id. § 841.062(a).

sufficiency review of the evidence under the standards articulated by the supreme

court.

8

A commitment proceeding under the SVP Act is the “unusual civil case

incorporating the ‘beyond a reasonable doubt’ burden of proof typically reserved for

criminal cases.” In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020).

The burden of proof at trial “necessarily affects appellate review of the evidence.”

Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Regardless of the burden of

proof at trial, however, “the jury remains ‘the sole judge of the credibility of

witnesses and the weight to be given to their testimony.’” Id. (quoting Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).

A factual sufficiency review “is premised on consideration of the entire

record.” Id. In Stoddard, the Texas Supreme Court stated:

The assumption that the factfinder resolved disputed evidence in favor

of the finding if a reasonable factfinder could do so remains. However,

rather than “disregard” disputed evidence that a reasonable factfinder

could not have credited in favor of the finding, the court must determine

whether, in light of the entire record, that evidence “is so significant

that a factfinder could not reasonably have formed a firm belief or

conviction” that the finding was true. By logical extension, in an SVP

case where the burden of proof is beyond a reasonable doubt, the

evidence is factually insufficient if, in light of the entire record, the

disputed evidence that a reasonable factfinder could not have credited

in favor of the SVP finding, along with the undisputed facts that do not

support the finding, is so significant that the factfinder could not have

found beyond a reasonable doubt that the statutory elements were met.

Id. at 674–75 (quoting J.F.C., 96 S.W.3d at 266). Mere disagreement with the jury

as to the proper evidentiary weight and credibility of the evidence cannot be the basis

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of a reversal on factual insufficiency grounds. Id. at 677. We may not substitute our

judgment for that of the jury. Id.

Thus, the appellate standard for conducting a 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.” Id. at 678. If we reverse for factual insufficiency, we must

“detail why [we have] concluded that a reasonable factfinder could not have credited

disputed evidence in favor of the finding.” Id.

B. Trial Testimony

Dr. Randall Price is a forensic psychologist and licensed sex offender

treatment provider, and he is board certified in forensic psychology and clinical

neuropsychology. After reviewing the relevant records (including police reports and

prison records), interviewing James, reviewing the depositions of James and Dr.

Gaines, and scoring relevant actuarial measures designed to assist in determining an

individual’s risk of reoffending, Dr. Price concluded that James has a behavioral

abnormality as defined in the SVP Act that makes him likely to engage in a predatory

act of sexual violence. Dr. Price relied on James’s sexual offending history in

arriving at this opinion, and he discussed this history with James during their

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interview. James has a total of nine sex-related convictions. The facts underlying

each of these convictions were relevant to Dr. Price’s opinion, and he testified

concerning the facts of each offense.

James’s first sex offense occurred in San Diego in 1976, when James was

twenty-one years old. James was acquainted with the complainant, a twenty-one-

year-old neighbor, who he had met approximately one month before the sexual

assault occurred. A week after the complainant had a baby, James stopped by her

house and asked to use her phone. She invited him inside and allowed him to see her

new baby. James then physically and sexually assaulted her, threatened her life and

that of the baby, and then left. James pleaded guilty to the offense of rape in 1978,

and he was placed on probation for five years and ordered to a state hospital for

eighteen months for sex offender treatment, anger management treatment, and

alcohol abuse treatment. During his interview with Dr. Price, James stated that he

“thought it was consensual at the time.”

After being released from sex offender treatment in California, James moved

to Tarrant County, Texas. His next sex offense occurred there in 1983,

approximately two years after he completed probation for the California offense.

James, who was around twenty-eight at the time, followed a twenty-five-year-old

neighbor up the stairs to her apartment, pushed her inside, dragged her by her hair

to the bedroom, hit her in the head, and sexually assaulted her. James pleaded guilty

11

to the offense of rape in 1984, and he received a fifteen-year sentence. He served

nearly five years of this sentence before being paroled in 1988. When asked about

this offense, James told Dr. Price that “it was consensual.” Dr. Price testified that

James had not accepted responsibility for either of these offenses because “[h]e

maintains they are consensual.” Dr. Price considered this offense significant because

it occurred after his conviction for the California offense, indicating that his

conviction and the treatment he received following the first offense “did not lead to

him controlling his urges.” He testified that James “reoffended in spite of treatment

and sanction; and that is significant in the risk he poses.”

James was still on parole for this second offense when the next sex offenses—

the ones for which he was incarcerated at the time of this SVP proceeding—occurred

in Harris County in 1990. In January 1990, James, who was thirty-five years old,

was dating a woman who had a six-year-old niece and two-year-old nephew living

with her. James dropped his girlfriend off at work and, while still parked in the

parking lot, forced his girlfriend’s niece to perform oral sex on him. James pleaded

guilty to the offense of aggravated sexual assault of a child, and the trial court

assessed his punishment at confinement for thirty years. During his interview with

Dr. Price, James denied having any kind of sexual contact with this complainant.

The day after the assault on his girlfriend’s niece, James abducted two girls—

a five-year-old girl and her three-year-old sister—who lived in the same apartment

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complex as people he knew. The girls waved to James from a window in their

apartment, and he pulled them through the window and drove them to a local motel

where he forced them to perform oral sex on them and attempted vaginal intercourse

with them. James pleaded guilty to two counts of aggravated kidnapping and two

counts of aggravated sexual assault of a child, and the trial court assessed his

punishment at confinement for thirty years for each count, to run concurrently. The

indictments for the aggravated kidnapping offenses alleged that James kidnapped

both girls with the intent “to violate and abuse the [complainants] sexually.” During

his interview with Dr. Price, James admitted to kidnapping these girls and taking

them to a motel. He told Dr. Price, “My intent was to have sex with them,” but he

denied having sex with the girls. He further stated that he “took them back close to

their home and let them out” of his car.

Eight days after he sexually assaulted the two sisters, James kidnapped and

assaulted an eight-year-old girl who he did not know. While driving, James saw this

complainant walking along the side of the road and he asked her if she had seen his

daughter.2 James stopped at a park and forced her to perform oral sex on him. They

spent the night in his car, and then James took her to a motel where he again forced

her to perform oral sex and had vaginal intercourse with her. James dropped her off

on the side of the road and told her someone would give her a ride home. James

2

James does not have a daughter.

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pleaded guilty to the offenses of aggravated kidnapping and aggravated sexual

assault of a child, and the trial court assessed his punishment at confinement for

thirty years for both offenses, to run concurrently.

During his interview with Dr. Price, James stated that he “was under a lot of

stress about his ex-girlfriend” and acknowledged taking this complainant to a motel.

James at first told Dr. Price that he “never thought about having sex like that,” but

then he admitted that this complainant “gave [him] oral sex one time.” In his

deposition, James denied any kind of sexual contact with this complainant. Dr. Price

testified that the fact that this complainant was a stranger to James was significant

because when the victim is a stranger “that represents more of a risk for sexually

reoffending than if the offender knows the victim” because it is “usually a lot harder

to gain access to the victim” and it “increases the potential pool of victims in the

future.” Dr. Price testified that James has accepted “at least some responsibility for

this.”

Dr. Price defined “sexual deviance” as “abnormal sexual behavior,” and he

stated that James is sexually deviant because he “has an interest and is aroused by

nonconsensual sex by having sex with a victim that doesn’t want to.” Dr. Price used

the Diagnostic and Statistical Manual, Fifth Edition, to diagnose James with “other

specified paraphilic disorder,” specifically “nonconsensual sex with both adults and

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children.”3 He testified that sexually assaulting women and any kind of sexual

conduct with children qualifies as sexually deviant acts. He testified that there was

some evidence that James still had this interest because he had reported to Dr. Gaines

that, while in the hospital in 2006 after having a prostatectomy, he saw a movie that

depicted a sexual assault and this aroused him. Dr. Price testified that paraphilic

disorder is a chronic condition that cannot be cured, only managed.

Dr. Price also diagnosed James with “other specified personality disorder”

with traits of antisocial personality disorder. A personality disorder is a “pervasive

and chronic” set of traits or behaviors that are dysfunctional and cause problems for

either the person or other people. He defined “antisocial” in this context as “a set of

traits and behaviors that are not pro social” and are not “in tune with or consistent

with the basic values of our society.” James has several antisocial traits, including

“a failure to conform to social norms with respect to lawful behaviors,” “an element

of conning of others,” “a reckless disregard for the safety of others,” and a lack of

remorse, as demonstrated by his denial of the offenses. Dr. Price did not diagnose

James with antisocial personality disorder because that diagnosis requires evidence

of a conduct disorder prior to age fifteen, and he did not have any evidence that

3

Dr. Price testified that a diagnosis of pedophilia was not appropriate for James

because that diagnosis requires sexual interest in children that persists for at least

six months, and that was not present here. There was evidence that James’s sexual

interest in children “was present and very strong for eight days but not for six

months,” and James did not self-report a sexual interest in children.

15

James had started acting out prior to that age. According to Dr. Price, there is a

consensus in the professional literature that there are “two pathways to being a sex

offender”: sexual deviance and antisociality. Both are present with James. He agreed

that James’s sexual offending history is evidence of his personality disorder, stating,

“it’s persistent of violating the law in spite of the consequences.”

As part of his evaluation of James, Dr. Price completed several actuarial

measures including the PCL-R, the psychopathy checklist revised. “Psychopathy” is

a “clinical construct” that is similar to antisocial personality traits and is related to

recidivism. The PCL-R considers twenty psychopathic traits and is scored on a scale

from 0 to 40. Dr. Price scored James at 20, which is below the threshold for being

considered a psychopath. Compared to other criminal offenders, James “would fall

at the 40th percentile which would mean that he’s higher than 40 percent of other

criminal offenders and, of course, that means that 60 percent are higher than him.”

Dr. Price did not conclude that James is a psychopath, but he does have some

psychopathic traits including lack of remorse, lack of empathy, poor behavioral

controls, promiscuous sexual behavior, impulsivity, and failure to accept

responsibility. Although many sex offenders exhibit denial about their offenses,

James displayed “extreme levels of denial,” minimizing his behavior, his motive, or

the effect his behavior had on the complainants. An extreme level of denial is a risk

factor for reoffending.

16

Dr. Price also completed the Static-99R, which contains a list of ten risk

factors that have been empirically studied in sex offenders and assesses the

likelihood of a sex offender to reoffend. It’s impossible to predict whether an

individual will sexually reoffend in the future, but this actuarial measure “gives us

totally objective information that forms a baseline that you then adjust based on the

individual.” Dr. Price agreed that the Static-99R does not address all factors that are

relevant to an individual’s risk for reoffending, such as whether an individual

commits an offense while on parole, “and it only captures factors that are static,

which means they don’t change,” such as the number of past sex-related offenses.

After assessing James, Dr. Price gave him a score of 3 on this measure, which, when

compared with other sex offenders, means that James is in the “average range” for

reoffending.4

After interviewing James, Dr. Price also considered the Risk for Sexual

Violence Protocol (“RSVP”), which is a research-based “checklist of other risk

4

Dr. Price compared James’s score to several different groups of sex offenders and

considered what percentage of offenders later reoffended, meaning that they were

convicted of another sex-related offense. Because “reoffending” is defined only as

a later conviction and does not consider unreported sex offenses, the numbers are

considered an underestimate of “actual reoffending.” In the “routine sample” of sex

offenders, on average, 7.9% of offenders with a score of 3 on the Static-99R

reoffended within five years. In the “high-risk, high-needs” group of sex offenders,

14% of offenders with a score of 3 reoffended within five years and 22.9%

reoffended within ten years. And in the “Texas Norms” group of sex offenders,

which has a “very small” sample size, 3.8% of offenders with a score of 3 in Texas

reoffended within five years.

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factors” that addresses factors known to increase the risk for reoffending. This

measure includes some “dynamic factors,” including successfully undergoing sex

offender treatment and maintaining steady employment, which means it accounts for

things that the individual can do to decrease the risk of reoffending. At trial, Dr.

Price listed for the jury the risk factors that James possesses, which are covered by

the Static-99R, the RSVP, and other clinical research: he had never lived with a

partner for two years;5 nonsexual violence associated with the last offense; pattern

of reoffending; having unrelated victims; having strangers as victims; chronic sexual

violence spanning a long time period; diverse forms of sexual assault; escalation of

sexual offenses; use of physical coercion; use of psychological coercion; extreme

denial of sexual offending; attitudes that support or condone sexual violence;

problems with stress or coping; sexual deviance; problems with substance abuse;

problems with intimate relationships; employment history; reoffending while on

parole; reoffending after sex offender treatment; violating community supervision

by committing a new offense; alcohol use during at least one offense; deficient

acceptance of responsibility; deficient victim empathy; and choice of victims from

a wide age range.

5

Dr. Price did not recall whether James reported that he had lived with a partner for

two-and-a-half years. He agreed that if James had done so, that would reduce his

score on the Static-99R from a 3 to a 2. James testified that, before moving to Texas,

he lived with a partner for around two-and-a-half years.

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Balanced against an individual’s risk factors are the individual’s protective

factors, or “anything that tends to decrease the risk of reoffending.” James’s

protective factors included his age (sixty-four at the time of trial); poor medical

health; good adjustment to incarceration, including no sexual offenses while in

prison;6 he obtained college degrees while incarcerated; lack of a male victim; no

major mental illnesses; he is not “a prototypical psychopath”; he does not meet all

criteria for antisocial personality disorder; he has “[a] fairly reasonable plan for his

release,” involving seeking acceptance into a program for homeless veterans; he has

a reported low sex drive and a reported lack of interest in sex at all; and he has an

accepting attitude towards sex offender treatment for sex offenders. At times, James

acknowledged to Dr. Price that he needs sex offender treatment, but other times he

said that he did not. He also told Dr. Price that he did not consider himself to be a

sex offender. When balancing the risk factors and protective factors, Dr. Price

opined that James had a “moderately high” risk for sexual reoffending.

Dr. Price also considered James’s medical and substance abuse history. He

considered James’s past alcohol abuse significant because alcohol use can lower the

6

Dr. Price testified that the fact that James has had no sexual offenses while in prison

does not change his ultimate opinion because prison is a “[t]otally different situation

than being in the free world.” Although women can be on prison staff, no children

are present in prison, and the environment is highly structured and under near-

constant surveillance, which can “curtail and inhibit assaultive behavior of a sexual

variety in thousands of inmates,” although sexual assaults do still occur in prison.

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individual’s inhibitions and behavioral control and can increase “the chances of

acting out on some predisposition that they might have that leads to reoffending.”

While James was hospitalized in California and while incarcerated for his first

conviction in Texas, he participated in substance abuse treatment. He also has a

conviction for driving while intoxicated, and the records that Dr. Price reviewed

indicated that James had been drinking during the 1976 offense and around the time

of the 1990 offenses. Dr. Price considered James’s diagnosis of prostate cancer and

the subsequent removal of his prostate in 2006, but this did not change his opinion

that James has a behavioral abnormality that makes him likely to reoffend because

the prostate “is not physiologically involved with sex drive.” He also considered

James’s knee problems, which makes his gait unsteady and decreases his mobility,

but this did not change his opinion because “you don’t need to have a lot of mobility

to commit some sex offenses” and some of James’s offenses involved him “sexually

offending with his hand.”

Dr. Sheri Gaines, a psychiatrist, also reviewed relevant records, interviewed

James, and evaluated him. Dr. Gaines did not score any actuarial measures herself,

but she used the scores completed by Dr. Price as part of the basis for her opinion.

Dr. Gaines, like Dr. Price, opined that James has a behavioral abnormality as defined

by the SVP Act.

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Dr. Gaines considered the facts of each of James’s offenses when reaching

her conclusion. With respect to the California offense, the fact that it occurred a long

time ago “shows a pattern of behavior, that shows behavior that persisted throughout

decades.” She also considered the physical violence, the verbal threats that James

made to this complainant, and the fact that this complainant was a young adult, as

opposed to the child complainants for James’s most recent convictions. Although

James completed sex offender treatment after this offense, he later reoffended, which

is a risk factor for future reoffending. With respect to the Tarrant County offense,

Dr. Gaines testified that many of the risk factors from the first offense were present

with this offense, as well as a “lack of insight and the denial, saying that it was

consensual,” and a lack of remorse and callousness towards the complainant.

With respect to the 1990 offenses, Dr. Gaines identified several facts that were

relevant to her opinion, including the age of the complainants contrasted with

James’s first two offenses, a pattern of behavior, “the escalation of the offenses and

even a spree of these last seven convictions,” three of the complainants were

strangers to James, parts of some of the offenses occurred in a public place, and the

kidnapping constituted an “additional offense.” James admitted that he kidnapped

three of the children, but he never admitted to Dr. Gaines that he had committed any

sex crimes. She testified that this was significant because “denial is a risk factor for

repeating negative behaviors.”

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Dr. Gaines testified that James’s sexual deviancy is “nonconsent, perpetrating

sexual acts on nonconsensual victims, adults, and children,” and she diagnosed him

with “other specified paraphilic disorder, nonconsent with adults and children.” She

testified that this is a chronic, lifelong condition that “can sometimes be controlled

with various kinds of treatment, but it does not go away on its own.” She stated that

this disorder has affected James’s volitional capacity because he has “been unable

to abide by laws or ethical rules or rules of society,” and he continues to have risk

factors, “including the denial of committing the offenses.” Dr. Gaines also diagnosed

James with “[o]ther specified personality disorder with antisocial traits.” The

“antisocial component” of this disorder for James is his pattern of illegal behavior,

a lack of remorse, denial, and deception. She also considered James’s past history

with alcohol abuse as a risk factor, and she testified that it was “concerning” that

James does not believe that he needs treatment for substance abuse.

During her interview with James, Dr. Gaines asked him if he needed sex

offender treatment, and he stated that he did not believe that he needs it. She stated

that James had “poor insight” into his paraphilic disorder, he does not understand

why he sexually offended, and he does not exhibit empathy or remorse for his

victims. He acknowledged that when he kidnapped the child complainants he

intended to have sex with them, but he could not explain what led to this thought.

This also concerned Dr. Gaines because “[i]n order to change a problematic

22

behavior, someone has to identify that behavior first . . . and then start working on

how to change it.”

Dr. Gaines also identified several protective factors for James, including his

age because “the literature indicates that after the age of 60, there’s a pretty steep

decline in reoffending.” James’s age did not change Dr. Gaines’s opinion about

likelihood of reoffending “given all these risk factors we’ve been talking about, the

decades of offending.” James had also obtained college degrees while in prison and

had adjusted well to the prison environment without having many disciplinary

issues. He also has family members, friends, and members of his religious

community who correspond with him and provide a support system for him. James

also has balance and mobility problems, and he reported that his prostate cancer has

affected his libido. These factors did not change Dr. Gaines’s opinion because

neither the ability “to run around from place to place” nor a sex drive is necessary to

commit a sexual offense.

James also testified. He acknowledged that he had nine prior convictions for

sex-related offenses. The State questioned James about the details of each of these

offenses, and although he admitted pleading guilty to these offenses and being

convicted of them, he denied sexually assaulting any of the complainants. With

respect to the two adult complainants, in California and in Tarrant County, he

testified that he had consensual sex with both of them. James also denied sexually

23

assaulting any of the child complainants in 1990, but he admitted to kidnapping three

of the complainants with the intent to have sex with them. He denied being sexually

attracted to children.7 Aside from the court-ordered treatment after his California

conviction, James has not participated in sex offender treatment, and he does not

believe that he is a sex offender. He denied having a sex drive or thoughts about sex.

He also denied having a problem with alcohol abuse.

C. Analysis

In arguing that the jury’s finding that he is a sexually violent predator is not

supported by factually sufficient evidence, James relies heavily on the Fort Worth

Court of Appeals’ analysis in In re Commitment of Stoddard, which has since been

reversed by the Texas Supreme Court. See Stoddard, 619 S.W.3d at 676–78. He also

compares many of the facts in this case, such as his scores on the actuarial measures

and his lack of unadjudicated sexual offenses, to the facts in Stoddard and argues

that this Court should, as the Fort Worth Court did, find that the State presented

factually insufficient evidence to support the jury verdict.

7

James offered inconsistent testimony on this matter. When he was questioned by his

counsel, James denied being sexually attracted to children and stated that he never

told anyone that, when he kidnapped the child complainants, he intended to have

sex with them. He testified that that thought did not cross his mind. He stated that

he “would not want anybody’s kids to go through what I put them through,” that his

actions were “definitely wrong,” and that he “deserved to do these 30 years for what

I did.” When later asked if he believed he needed sex offender treatment, he stated,

“Well, I could use it because I did kidnap the girls with the intent to have sex with

them; so there’s nothing wrong with having treatment programs to see why I even

did that.”

24

When faced with a similar argument, the Texarkana Court of Appeals declined

to engage in such a comparison between facts in different cases. See In re

Commitment of Metcalf, 602 S.W.3d 609, 623 (Tex. App.—Texarkana 2020, pet.

denied). The court stated:

Comparing isolated facts appearing in other reported SVP commitment

cases, such as the seriousness of the underlying offenses or scores on

risk assessment guidelines and psychopathy checklists, should not be

part of [the factual sufficiency] review. First, isolating and comparing

individual pieces of evidence unduly emphasizes that evidence while

discounting the remaining evidence present in both cases, which is

contrary to the factual sufficiency review standard. Further, the

evidence presented in other cases was not before the jury in this case,

and the factual sufficiency standard of review does not include

considering evidence not before the jury.

Id.; see Stoddard, 619 S.W.3d at 678 (noting that intermediate court had compared

Stoddard “to other adjudicated SVPs with predicate offenses and criminal histories

that were more sustained and egregious than Stoddard’s” and concluded that

Stoddard was not “worst of the worst” of sex offenders, but SVP Act does not require

State to prove that offender is one of “the worst of the worst” to obtain verdict that

individual is sexually violent predator). We therefore consider only the evidence

presented before the jury in this case.

The jury heard evidence that James has been convicted of nine sexually

violent offenses, and it heard evidence of the details of these offenses. Dr. Price and

Dr. Gaines discussed the details of these offenses, which they considered when

formulating their opinions on whether James has a behavioral abnormality, and they

25

discussed the risk factors for reoffending that they observed in connection with

James’s offenses. Among other risk factors, both Dr. Price and Dr. Gaines

considered it significant that James committed a new sexual offense in Tarrant

County after undergoing sex offender treatment in California and that he committed

the 1990 offenses after being paroled following his Tarrant County conviction.

James also committed offenses over a period spanning fourteen years, he offended

against both women and young children, he used physical violence against the adult

complainants, he threatened the complainants, and he engaged in several different

sexual acts with the complainants. Both experts also discussed the significance of

James’s denial of the sexual components of his offenses and his insistence that he is

not a sex offender and does not need sex offender treatment. This level of denial,

which Dr. Price characterized as “extreme,” is a risk factor for reoffending. Both

experts diagnosed James as having “other specified paraphilic disorder,

nonconsensual sex with adults and children” and “other specified personality

disorder with antisocial traits.”

Dr. Price discussed the actuarial measures that he scored for James, as well as

the shortcomings of those measures and why he believed James had a greater risk

for reoffending despite his “average” scores on the measures. The experts agreed

that James is not a psychopath. But he did display some psychopathic traits, which

combined with his paraphilic disorder and deviant sexual interests concerned Dr.

26

Price. Both Dr. Price and Dr. Gaines acknowledged that James has several

“protective” factors that could decrease his risk of reoffending, such as his age and

his medical history, but both doctors explained why the existence of the protective

factors present here did not change their ultimate opinion that James has a behavioral

abnormality as defined by the SVP Act. Both experts also acknowledged that James

had adjusted well to prison and did not have any major disciplinary cases or new

sexual offenses since being incarcerated in 1991, but they discounted the

significance of that as a major protective factor due to the highly controlled and

surveilled nature of confinement in prison.

James also testified, and while he acknowledged that he had nine convictions

and admitted that he had kidnapped three of the four child complainants, he denied

committing any sexual offenses against any of the complainants. He also denied

having a sex drive and denied having any thoughts about sex. As the factfinder, it

was within the province of the jury to weigh the evidence, judge the credibility of

the witnesses’ testimony, and resolve any conflicts in the evidence. See In re

Commitment of Williams, 539 S.W.3d 429, 440–41 (Tex. App.—Houston [1st Dist.]

2017, no pet.); In re Commitment of Stuteville, 463 S.W.3d 543, 552 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied); see also Stoddard, 619 S.W.3d at 668 (stating

that, in conducting factual sufficiency review in SVP case, we “may not usurp the

jury’s role of determining the credibility of witnesses and the weight to be given

27

their testimony”). Additionally, the jury was free to believe all, part, or none of a

witness’s testimony. In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex.

App.—Beaumont 2002, pet. denied). We may not substitute our judgment for that

of the jury. See Stoddard, 619 S.W.3d at 677.

We presume that the jury resolved any disputed evidence in favor of its

finding that James is a sexually violent predator. See id. at 668, 674 (stating that we

“must presume that the factfinder resolved disputed evidence in favor of the finding

if a reasonable factfinder could do so”). The disputed evidence a reasonable

factfinder could not have credited in favor of the jury’s verdict, along with

undisputed facts contrary to the verdict, is not so significant in light of the entire

record such that the jury could not have found beyond a reasonable doubt that James

is a sexually violent predator. See id. at 678. We therefore hold that the State

presented factually sufficient evidence to support the jury’s finding that James has a

behavioral abnormality as defined by the SVP Act and is a sexually violent predator.

We overrule James’s first issue.

Partial Directed Verdict

In his second issue, James contends that the trial court erred by granting the

State’s motion for a partial directed verdict on whether James is a repeat sexually

violent offender before James had rested his case-in-chief.

28

A civil commitment proceeding under the SVP Act “is subject to the rules of

procedure and appeal for civil cases,” but if a conflict exists between the SVP Act

and the rules of civil procedure, the SVP Act controls. TEX. HEALTH & SAFETY CODE

§ 841.146(b); In re Commitment of Talley, 522 S.W.3d 742, 749–50 (Tex. App.—

Houston [1st Dist.] 2017, no pet.). In civil cases generally, a party has a right to a

jury trial to determine questions of fact. In re Commitment of Harris, 541 S.W.3d

322, 330 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The SVP Act grants a

defendant the right to a jury trial. See TEX. HEALTH & SAFETY CODE § 841.061(b);

Talley, 522 S.W.3d at 749. In a jury trial in an SVP case, the jury shall determine

whether, beyond a reasonable doubt, the person is a sexually violent predator. TEX.

HEALTH & SAFETY CODE § 841.062(a); Harris, 541 S.W.3d at 330.

Uncontroverted questions of fact need not be and should not be submitted to

the jury for its determination. Harris, 541 S.W.3d at 330 (quoting Clark v. Nat’l Life

& Accident Ins. Co., 200 S.W.2d 820, 822 (Tex. 1947)). The Texas Rules of Civil

Procedure allow for directed verdicts. See TEX. R. CIV. P. 268; see Harris, 541

S.W.3d at 330 (“A partial directed verdict is a procedure for removing parts of a civil

case from the jury when there are no fact issues to resolve.”); Talley, 522 S.W.3d at

750 (stating that partial directed verdict is “a mechanism for removing parts of a case

from the factfinder”); see also In re Commitment of Perdue, 530 S.W.3d 750, 753

(Tex. App.—Fort Worth 2017, pet. denied) (“A directed verdict does not violate the

29

right to a trial by jury because it is a procedure that depends on a trial court’s

conclusion that there are no issues of fact to be determined.”).

In an SVP Act proceeding, “[a]bsent evidence that challenges the evidence

that the defendant has been convicted of more than one sexually violent offense and

for which a sentence was imposed for one of them, a person’s status as a sexually

violent offender is a legal determination appropriate for partial directed verdict.”

Talley, 522 S.W.3d at 750. “When undisputed evidence demonstrates that a person

is a repeat sexually violent offender, reasonable jurors can make only one finding as

to that element—a conclusion that remains true whether the burden of proving the

element is by a preponderance of the evidence or beyond a reasonable doubt.”

Harris, 541 S.W.3d at 330. Thus, in SVP Act cases, the trial court may grant a partial

directed verdict on the question whether a person is a repeat sexually violent offender

when there is no probative evidence raising a fact issue to the contrary. Id.; Talley,

522 S.W.3d at 750–51 (upholding trial court’s directed verdict when defendant

admitted to multiple convictions and sentences for sexually violent offenses in

requests for admission and at trial and State introduced records establishing prior

convictions and sentences, and therefore this element “was conclusively established

and not a contested issue for the jury to determine”).

James acknowledges the precedent from this Court holding that trial courts

may grant partial directed verdicts on the question whether the defendant is a repeat

30

sexually violent predator, but he argues that the trial court in this case prematurely

granted the directed verdict before he had rested his case-in-chief, depriving him of

the “full opportunity” to present his case and thus automatically requiring reversal.

In support, James cites, among other cases, the Texas Supreme Court’s decision in

Tana Oil & Gas Corp. v. McCall, in which the court stated, “Ordinarily, a directed

verdict should not be granted against a party before the party has had a full

opportunity to present its case and has rested.” See 104 S.W.3d 80, 82 (Tex. 2003);

see also Wedgeworth v. Kirskey, 985 S.W.2d 115, 116–17 (Tex. App.—San Antonio

1998, pet. denied) (stating that purpose of motion for directed verdict is to show trial

court that cause of action does not exist and that “[t]his can only be done after the

plaintiff has had full opportunity to present their evidence” and stating that trial court

commits reversible error if it grants directed verdict on its own motion before

plaintiff has presented all his evidence); Nassar v. Hughes, 882 S.W.2d 36, 38 (Tex.

App.—Houston [1st Dist.] 1994, writ denied) (“[T]he trial court may properly direct

a verdict if no evidence is presented to support the cause of action. However, if done

before the plaintiff has presented all his evidence, it is reversible error.”).

In Tana Oil, two attorneys sued Tana Oil & Gas and claimed that the

company, by suing them and their client in another county, had tortiously interfered

with their agreement to represent a client in a different suit against the company. See

104 S.W.3d at 81. The only actual damages that the attorneys sought “were the value

31

of the time they spent in defending themselves as well as the costs they incurred.”

Id. The trial court impaneled a jury, but during the testimony of the McCalls’ first

witness, the court granted Tana Oil’s motion for directed verdict. Id. at 81–82. The

next day, the trial court signed an order granting the directed verdict “because ‘as a

matter of law, Plaintiffs [the McCalls] have not and cannot establish all the elements

of this cause of action, viz., Plaintiffs have neither pled nor demonstrated that

Plaintiffs suffered any actual damage or loss.’” Id. at 82.

The Texas Supreme Court concluded that even if the McCalls could have

proved that Tana Oil tortiously interfered with their relationship with their client,

“they would not be entitled to the only damages they claimed.” Id. The court then

noted that a trial court typically should not grant a directed verdict “against a party

before the party has had a full opportunity to present its case and has rested.” Id. The

court stated, however:

[T]he McCalls were not harmed by the trial court’s irregular procedure

because their action for tortious interference failed not for want of

evidence but because proof of all their claims would not have entitled

them to the only damages they sought. We emphasize that the McCalls

did not merely fail to plead a viable damage claim; rather they

affirmatively limited their claim to damages they could not recover as

a matter of law.

Id. The supreme court ultimately concluded, “In such a situation, the trial court did

not err in dismissing the case.” Id.

32

James argues that the “Tana Oil exception” to the general rule of automatic

reversal when a trial court grants a directed verdict before the party has finished its

case-in-chief applies only when “the opposing party’s claim or defense could not be

established as a matter of law,” “has nothing to do with an assessment of the trial

evidence,” and has no application to this case. James argues that he was not barred

as a matter of law from challenging the repeat-sexually-violent-offender element of

the State’s burden of proof, but the trial court’s granting of a directed verdict on this

element in favor of the State before he had rested his case-in-chief “foreclosed any

further evidence (including James’s testimony)” on this matter. He argues that the

proper remedy for the trial court’s error is to reverse the judgment and remand for a

new jury trial.

The general rule is that a trial court should not render a directed verdict against

a party before that party has had a full opportunity to present the party’s case and

has rested. Tana Oil, 104 S.W.3d at 82; Stearns v. Martens, 476 S.W.3d 541, 546

(Tex. App.—Houston [14th Dist.] 2015, no pet.); State Office of Risk Mgmt. v.

Martinez, 300 S.W.3d 9, 11 (Tex. App.—San Antonio 2009, pet. denied). Here, the

State moved for a directed verdict on whether James was a repeat sexually violent

offender because he had been convicted of more than one sexually violent offense

and a sentence was imposed for at least one of the offenses. The trial court granted

the directed verdict during James’s testimony as part of his case-in-chief. Because

33

the trial court did not wait to grant the directed verdict until after James had rested

his case-in-chief, we conclude that the trial court erred. See Tana Oil, 104 S.W.3d at

82; Stearns, 476 S.W.3d at 546; State Office of Risk Mgmt., 300 S.W.3d at 11.

James argues that because this case does not fall within the Tana Oil

exception, the general rule that a premature directed verdict constitutes reversible

error applies, and this Court need not conduct a harm analysis. Under the unique

facts of this case, we disagree.

As part of its burden of proof, the State was required to prove that James was

a repeat sexually violent offender. See TEX. HEALTH & SAFETY CODE § 841.003(a)

(providing that person is sexually violent predator under SVP Act if person “is a

repeat sexually violent offender” and “suffers from a behavioral abnormality that

makes the person likely to engage in a predatory act of sexual violence”). 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). The SVP Act defines which offenses are considered sexually

violent offenses, and this definition includes aggravated sexual assault of a child and

aggravated kidnapping when the offense is committed “with the intent to violate or

abuse the victim sexually.” Id. § 841.002(8)(A), (B); see TEX. PENAL CODE

§ 20.04(a)(4) (providing that person commits offense of aggravated kidnapping if he

“intentionally or knowingly abducts another person with the intent to . . . inflict

34

bodily injury on him or violate or abuse him sexually”); id. § 22.021(a) (setting out

elements of aggravated sexual assault).

To meet its burden of proof, the State introduced both testimonial and

documentary evidence in its case-in-chief. Both Dr. Price and Dr. Gaines testified

that James had convictions for nine sexually violent offenses: a conviction for rape

in 1978; a conviction for rape in 1984; convictions for three counts of aggravated

kidnapping in 1991; and convictions for four counts of aggravated sexual assault of

a child in 1991. James pleaded guilty to all these offenses. He was placed on

probation for the 1978 rape offense, but he received and served prison sentences for

each of the other offenses. The trial court admitted copies of the judgments and

sentences for each offense. The trial court also admitted copies of the indictments

for the 1991 offenses, which alleged that, with respect to the aggravated kidnapping

offenses, James committed the offense with the intent to violate and abuse the

respective complainants sexually.

James also testified as part of the State’s case-in-chief. James acknowledged

that, at the time of trial, he was incarcerated and was serving sentences for seven

offenses: four convictions for aggravated sexual assault of a child and three

convictions for aggravated kidnapping. These convictions involved four different

complainants. He also admitted that this was not his first time in prison and that he

had previously been incarcerated for a rape conviction. He further admitted that he

35

had another prior rape conviction in California, that he had been placed on probation,

and that he had participated in a hospital treatment program after that conviction.

The State questioned James extensively about the details of each of these offenses.

Although James denied that he had committed the sexual offenses—stating that he

had consensual sex with the two adult complainants and admitting that he kidnapped

three of the child complainants with the intent of having sex with them but denying

that he sexually assaulted them—he unequivocally admitted that he had been

convicted of nine different offenses.8

James also testified as the only witness in his own case-in-chief. James again

acknowledged that he had pleaded guilty to the offense of rape in California in 1978

and to the offense of rape in Tarrant County in 1984, although he again stated that

he did not rape these complainants. James also again acknowledged that he pleaded

8

James denied that he was guilty of the sexually violent offenses, but this does not

create a fact issue on the pertinent question whether he was convicted of the offenses

and had a sentence imposed for at least one of them. See In re Commitment of Black,

522 S.W.3d 2, 5 (Tex. App.—San Antonio 2017, pet. denied) (“Even if there was

evidence at Black’s civil commitment proceeding showing he did not actually intend

to commit a sexual assault when he committed burglary, it is undisputed that he was

convicted of committing burglary with the intent to commit sexual assault. . . . We

hold Black’s testimony is not probative evidence of the material fact of whether he

was ‘convicted’ of burglary with the intent to commit sexual assault.”); In re

Commitment of Barrientos, No. 01-17-00649-CV, 2018 WL 3384563, at *4 (Tex.

App.—Houston [1st Dist.] July 12, 2018, pet. denied) (“Although he denies

committing either offense, Barrientos’s denials of guilt do not raise a question of

fact as to whether he was convicted of these offenses and sentenced for at least one

of them.”). The evidence is undisputed that James has been convicted of nine

sexually violent offenses and that he had a sentence imposed for at least one of them.

36

guilty to seven offenses in 1991. He offered explanations for why he pleaded guilty

to all these offenses even though he claimed that he did not commit these offenses.

James’s testimony on these issues occurred before the State moved for a directed

verdict on the repeat sexually violent offender element of its case.9

Although the trial court granted a directed verdict in favor of the State on the

question whether James was a repeat sexually violent offender before James had

rested his case-in-chief, this occurred after he had admitted—during both the State’s

case-in-chief and his own—that he had been convicted of nine sexually violent

offenses and had a sentence imposed for at least one of them. The State’s other

witnesses—Dr. Price and Dr. Gaines—also testified that James had convictions for

nine sexually violent offenses, and the trial court admitted the judgments and

sentences for each offense. It was therefore undisputed that James had been

convicted of more than one sexually violent offense and a sentence had been

imposed for at least one of the offenses. See TEX. HEALTH & SAFETY CODE

§ 841.003(b) (defining “repeat sexually violent offender”); Harris, 541 S.W.3d at

331 (“But if there are no disputed facts regarding this element, the person’s status as

a repeat sexually violent offender is appropriate for partial directed verdict.”);

9

Even after the trial court granted the directed verdict, James acknowledged that he

had been incarcerated for the rape offense that occurred in Tarrant County. The State

asked, “And yet after being incarcerated for that second rape, you did commit these

other offenses?” James responded, “Unfortunately, yes.” He then stated that none

of the allegations against him were true.

37

Talley, 522 S.W.3d at 750–51 (“Because Talley admitted to his repeat offender

status in his pleadings, this element was conclusively established and not a contested

issue for the jury to determine.”). James therefore had an opportunity to present a

defense on this issue, but not only did he not challenge the State’s proof that he had

been convicted of more than one sexually violent offense, he affirmatively admitted

it during his testimony before the trial court granted the directed verdict.

Under the facts of this case, we conclude that the trial court’s error in granting

a directed verdict before James rested his case-in-chief was harmless.10 See State

Office of Risk Mgmt., 300 S.W.3d at 11–12 (noting that while “it is generally

reversible error for the trial court to direct a verdict without allowing the plaintiff to

10

We note that the Fourteenth Court of Appeals has held that when a case does not

fall within the Tana Oil exception, the trial court commits reversible error in

granting a directed verdict against a defendant before he had an opportunity to

present his case-in-chief. See Stearns v. Martens, 476 S.W.3d 541, 546–47 (Tex.

App.—Houston [14th Dist.] 2015, no pet.). In Stearns, a divorce proceeding, one of

the issues was whether shares in a company were the petitioner’s separate property.

Id. at 545. The trial court granted a directed verdict in favor of the petition on this

issue after the petitioner rested her case-in-chief and before the respondent had a

chance to present any of his case-in-chief. Id. at 547. The Fourteenth Court noted

that the case did not fall within the Tana Oil exception because “none of [the

potential bases for affirming the directed verdict] rely on [the respondent’s]

purported affirmative limitation of his claims to damages he cannot recover as a

matter of law.” Id. The Fourteenth Court held that the trial court committed

reversible error when it granted a directed verdict against the respondent “before he

had an opportunity to present his case-in-chief.” Id. Here, although James had not

yet finished his case-in-chief at the time the trial court granted the directed verdict,

James had already admitted during his case-in-chief (as well as when he testified

during the State’s case-in-chief) that he had nine convictions for sexually violent

offenses and that a sentence had been imposed for at least one of those offenses.

Stearns is therefore distinguishable from the present case.

38

present all of its evidence,” Texas Supreme Court had, in Tana Oil, “held that a

procedural error in granting a directed verdict before the close of evidence did not

require reversal where no harm was shown”); TEX. R. APP. P. 44.1(a) (providing that,

in civil case, no judgment may be reversed on appeal on ground that trial court made

error of law unless court of appeals concludes error probably caused rendition of

improper judgment or probably prevented appellant from properly presenting case

to court of appeals).

We overrule James’s second issue.

Jury Charge Error

In his third issue, James argues that the trial court erred by refusing to instruct

the jury that, while its determination that he is a sexually violent predator was

required to be unanimous, it could determine that he was not a sexually violent

predator by a non-unanimous, 10-2 verdict.

As noted above, the SVP Act provides that “a civil commitment proceeding

is subject to the rules of procedure and appeal for civil cases,” but “[t]o the extent of

any conflict between [the SVP Act] and the rules of procedure and appeal for civil

cases, [the SVP Act] controls.” TEX. HEALTH & SAFETY CODE § 841.146(b). Texas

Rule of Civil Procedure 292(a), which governs jury verdicts in civil cases, states that

“a verdict may be rendered in any cause by the concurrence, as to each and all

answers made, of the same ten or more members of an original jury of twelve.” TEX.

39

R. CIV. P. 292(a). Health and Safety Code section 841.062(b) provides that “[a] jury

determination that the person is a sexually violent predator must be by unanimous

verdict.” TEX. HEALTH & SAFETY CODE § 841.062(b). There is “no question” that

for a jury to find that a person is a sexually violent predator, it must do so

unanimously. In re Commitment of Jones, 602 S.W.3d 908, 912 (Tex. 2020). Thus,

because section 841.062(b) conflicts with Rule 292(a), section 841.062(b) controls.

Id.

However, section 841.062(b) “addresses only the number of votes needed for

a ‘yes’ verdict—that is, a verdict for the State finding ‘that the person is a sexually

violent predator.’” Id. (quoting TEX. HEALTH & SAFETY CODE § 841.062(b)). The

statute is silent “about the number of votes needed for a ‘no’ verdict,” or a verdict

declining to find that the defendant is a sexually violent predator. Id. As the Texas

Supreme Court noted, if the Legislature had intended for section 841.062(b) to apply

to both “yes” and “no” verdicts, “it could easily have done so, for example, by

requiring unanimity for a ‘determination of whether the person is a sexually violent

predator.’” Id. The supreme court concluded that because the plain language of

section 841.062(b) applies only to “yes” verdicts under the SVP Act, Rule 292(a)

applies to “no” verdicts. Id. at 913. A unanimous jury verdict is therefore required

to find that a defendant is a sexually violent predator, but only ten votes are necessary

to reach a verdict declining to find that the defendant is a sexually violent predator.

40

Id. “Consequently, a defendant who requests that the jury be instructed to that effect

is entitled to the submission of such an instruction.” Id.

Here, James requested that the trial court instruct the jury in the charge that,

while a “yes” answer to the question whether James was a sexually violent predator

was required to be unanimous, a “no” answer only required the votes of ten jurors.

The trial court overruled this request and instructed the jury that its verdict was

required to be unanimous. We conclude that the trial court’s refusal to include

James’s requested instruction was erroneous. See id. We therefore turn to whether

this error was harmful.

Texas Rule of Appellate Procedure 44.1(a) provides:

(a) No judgment may be reversed on appeal on the ground that the

trial court made an error of law unless the court of appeals

concludes that the error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting

the case to the court of appeals.

TEX. R. APP. P. 44.1(a). A jury’s unanimous verdict finding that a defendant is a

sexually violent predator demonstrates that the trial court’s error in refusing to

submit the requested 10-2 instruction did not affect the jury’s verdict. Jones, 602

S.W.3d at 914. “[W]e must presume that the jurors voted the way they did because

they were conscientiously convinced of the result they reached.” Id. at 915. When

the members of a jury unanimously come to the conclusion that a defendant is a

41

sexually violent predator, “an instruction explaining that a vote of ten of the jurors

was sufficient for a verdict declining to find that [the defendant is a sexually violent

predator] would not have changed the outcome” of the case. Id.

In this case, the jury unanimously determined that James is a sexually violent

predator. We therefore conclude that the trial court’s failure to submit James’s

requested 10-2 instruction did not probably cause the rendition of an improper

judgment, and the trial court’s error was harmless. See id.; In re Commitment of Hill,

621 S.W.3d 336, 346 (Tex. App.—Dallas 2021, no pet. h.) (concluding that because

jury unanimously found defendant was sexually violent predator, “an instruction

explaining that a vote of ten jurors was sufficient for a verdict declining to find Hill

is a sexually violent predator would not have changed the outcome of this case”); In

re Commitment of K.H., 609 S.W.3d 247, 257 (Tex. App.—Houston [14th Dist.]

2020, pet. denied) (concluding that trial court erred by not giving requested 10-2

instruction, but “because the jury unanimously found that appellant was a sexually

violent predator, the error did not probably cause the rendition of an improper

judgment”).

We overrule James’s third issue.

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Conclusion

We affirm the judgment of the trial court.

April L. Farris

Justice

Panel consists of Justices Kelly, Guerra, and Farris.

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