IN RE COMMITMENT OF STONEY RAYMOND FONTENOT, Appellant
Appeal from the 177th District Court Harris County, Texas
Trial Court Case No. 509155-0101Z
consists of Chief Justice Radack and Justices Jennings and
V. Keyes, Justice
appellant, Stoney Raymond Fontenot, neared the end of his
confinement for a 1989 sexual assault conviction, the State
filed a petition to commit him civilly as a sexually violent
predator. See Tex. Health & Safety Code Ann.
§§ 841.001- .151 (West 2017). After a jury found
him to be a sexually violent predator, the trial court signed
a final judgment and order of civil commitment. In two
issues, Fontenot contends that (1) the State's questions
directed to its mental health expert concerning the screening
process an individual goes through before a
sexually-violent-predator commitment trial constitutes
fundamental error; and (2) the trial court committed
fundamental error during voir dire when it made
"misleading" statements concerning the role of the
jury in the trial.
pleaded guilty to the offense of rape in 1982, and the 262nd
District Court of Harris County assessed his punishment at
eight years' confinement. He was then convicted of sexual
assault in 1989, and the 177th District Court of Harris
County assessed his punishment at thirty years'
confinement. In February 2016, as Fontenot neared the end of
his sentence, the Special Prosecution Unit, acting with the
Harris County District Attorney's Office, filed a
petition in the 177th District Court alleging that Fontenot
was a sexually violent predator and seeking to have him
committed for treatment and supervision pursuant to Health
and Safety Code Chapter 841. Specifically, the State alleged
that Fontenot was a "repeat sexually violent offender
who suffers from a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence."
trial court began voir dire by explaining to the venire that
this case was "a civil case with a criminal voir dire
and a criminal jury charge." The trial court explained
that in 1999, the Texas Legislature enacted a statute
concerning sexually violent predators. The trial court
When someone in Mr. Fontenot's position is about to be
released from prison, he then-if TDC feels it's
appropriate, can file a lawsuit to say he needs-potentially
needs additional treatment, outpatient sex offender type
The statute is two-pronged. The first part is is he-this is
what the Petitioner, the State has to prove to the jury-is he
labeled what's, quote, "a sexually violent predator,
" which means does he have two or more prior convictions
or probations, in certain combinations, either probations or
trips to the penitentiary. There's different combinations
of that. For our purposes here, it doesn't matter. But he
has two qualifying prior type cases; and then, third, he has
a behavioral abnormality that he still needs some sort of
So the Petitioner in this case, the State of Texas,
that's what they have to prove.
the trial court stated that the jury would have to decide one
question: whether Fontenot was a sexually violent predator.
The court then stated that Fontenot's prison sentence
would not get any longer; instead, "It is an outpatient
treatment program. Think of it as a halfway house type
situation." The court repeatedly emphasized that
Fontenot's prior convictions were not going to be
relitigated in this proceeding, but instead the question was,
"what do we do going forward, " specifically,
"yes or no does he need this continued care."
members of the venire expressed confusion regarding what the
jury would be asked to determine. The trial court had the
following exchange with a venireperson:
Venireperson: Are we just deciding does he get therapy after
all this? Is that-
The Court: So 17 asked a good question. What are we deciding?
Does he get therapy? So here's what I can tell you. If
the jury-well, the jury's going to answer, yes or no,
does he meet the statutory criteria being a, quote,
"sexually violent predator." Okay? From there
it's up to the doctors to figure out what to do. My
experience tells me-I don't know.
Is it automatically statutory or is it depending on-
[The State]: Your Honor, it's up to the Court to decide
what actually happens afterwards.
The Court: Okay. So then it's up to me to then figure out
sort of what to do, what is the continuum of care. Is it a
halfway house type situation? Is it a lockdown treatment
program? It basically-if the jury says yes, it's up to me
to take more-different information into account to figure out
what is next. Kind of think of it as a-it's not probation
and it's not parole, but it's kind of like that.
Because here's the deal. Let's say this was a regular
criminal case and a jury places someone on probation. The
jury has no determination on what the programs are on
probation. That's always up to the Court. So basically he
remains under the Court's jurisdiction in some sort of
treatment program up until he is either discharged from it or
successfully completing it. Then there's also a process,
he can petition to get out of it and different things like
that. But more or less he stays under the jurisdiction of the
Court going forward into the foreseeable future.
trial court then had another exchange with a different
Venireperson: Are we here because the State says that he
should have treatment and it's-he disagrees with it or
whatever or is this standard protocol for anybody being
released for whatever the offenses were listed?
The Court: Good question. So, without getting too far into
the weeds, Mr. Fontenot has-the State-the State of Texas-so
this is a Prosecution Unit and-that deals with these types of
cases. They have filed a petition. They believe that Mr.
Fontenot needs this continuing care.
Venireperson: And that's not necessarily standard for
everybody in this situation? That's just-they're
arbitrary decisions at this point?
The Court: I wouldn't say-I wouldn't say arbitrary,
but it's- I mean, it's not everybody, but
it's-they've- they've chosen in this particular
situation to follow this law.
Venireperson: So it's not for every single person
that's going to be released?
The Court: Not necessarily.
venireperson stated, "So the petition is for more time,
I guess." The trial court again clarified that
Fontenot's prison sentence would not be extended but that
there would be "some sort of after-care sex offender
treatment that comes after [the prison sentence] that I
decide on what exactly that is." This venireperson then
stated that they did not think that "the jury should be
deciding if he needs more" and that it would be a
"mistake" to do so. Fontenot did not object to any
of the trial court's comments during voir
its portion of voir dire, the State further explained the
statutory elements that it was required to prove beyond a
reasonable doubt. The State emphasized that it had to do more
than prove that Fontenot had two prior sexual offenses-it
also had to prove that Fontenot suffered from a behavioral
abnormality. The State then asked the venire if anyone would
make up their minds as soon as they heard evidence of two
prior convictions. One venirepeson stated, "I feel like
I've already made up my mind that he needs more
therapy." Another venireperson ...