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In re Commitment of Fontenot

Court of Appeals of Texas, First District

December 5, 2017


         On Appeal from the 177th District Court Harris County, Texas Trial Court Case No. 509155-0101Z

          Panel consists of Chief Justice Radack and Justices Jennings and Keyes.


          Evelyn V. Keyes, Justice

         As 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.

         We affirm.


         Fontenot 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."

         The 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 stated:

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 treatment. Okay.
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 treatment for.
So the Petitioner in this case, the State of Texas, that's what they have to prove.

         Later, 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."

         Several 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.

         The trial court then had another exchange with a different venireperson:

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.

         One 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 dire.[1]

         During 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 ...

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