Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 371st District Court Tarrant County, Texas
Trial Court No. D371-S-13391-16
Sudderth, C.J.; Gabriel and Birdwell, JJ.  Memorandum Opinion on
Rehearing by Chief Justice Sudderth Dissenting Memorandum
Opinion on Rehearing by Justice Gabriel
MEMORANDUM OPINION ON REHEARING
SUDDERTH CHIEF JUSTICE
the State of Texas filed a motion for en banc reconsideration
of our September 27, 2018 memorandum opinion and judgment.
After considering the motion, we withdraw our prior opinion
and judgment and substitute the following.We dismiss the
motion for en banc reconsideration as moot. See,
e.g., In re Commitment of Bluitt, 562 S.W.3d
665, 666 (Tex. App.-Fort Worth 2018, pet. pending). Aside
from portions added to address the State's arguments for
reconsideration and the dissenting opinion and some
nonsubstantive stylistic changes, our opinion otherwise
Jeffery Lee Stoddard appeals the trial court's order that
he be civilly committed as a sexually violent predator.
See Tex. Health & Safety Code Ann. §
841.003. Because the evidence is factually insufficient to
support the jury's finding that Stoddard is a sexually
violent predator, we reverse.
2003, Stoddard was charged with aggravated sexual assault of
two children, seven-year-old Alice and her six-year-old
brother Bobby,  indecency with a child by contact by
touching Bobby's genitals, and possession of child
pornography. See Tex. Penal Code Ann. §§
21.11, 22.021(a)(1)(B), § 43.26. Stoddard was accused of
forcing the two children to perform oral sex on each other,
of performing oral sex on Alice and receiving oral sex from
her ten or eleven times, of withholding food from Alice
unless she engaged in oral sex, of attempting anal sex with
Alice, of touching Alice's genitals, and of causing Alice
to touch his genitals, all while he was living with the
children and their mother, Linda. In May 2004, Stoddard
pleaded guilty to the charges of aggravated sexual assault
and possession of child pornography in exchange for two
20-year sentences and one 10-year sentence, which he served
Stoddard served 12 years in prison, he became eligible for
parole and was scheduled to be released on or before
September 2017. Before his scheduled release date, in
November 2016, the State filed a petition to have Stoddard
civilly committed as a sexually violent predator.
See Tex. Health & Safety Code Ann. §
841.041(a). After a trial, the jury found that Stoddard was a
sexually violent predator, and the trial court ordered that
he be civilly committed.
argues that the jury's finding is not supported by
factually sufficient evidence, and we agree. To assist with
our analysis, we will begin with a discussion of the history
of civil commitments of sexually violent predators before
moving on to the facts of this case.
A history of civil commitments of sexually violent
proper evaluation of this case requires an understanding of
the background and development of civil commitment
proceedings for sexually violent predators in the United
States. These proceedings are not new developments in the
law-they have been around in some fashion since at least the
1930s. See Christy Jack & Jessica Marsh,
Civil Commitment: Coming to a Town Near You, State
Bar of Tex. Prof. Dev. Program, Advanced Criminal Law Course,
Ch. 29, p. 1 (2017) (citing Roxanna Lieb, Vernon Quinsey
& Lucy Berliner, Sexual Predators and Social
Policy, 23 Crime & Just. 43, 55 (1998) (hereinafter
Lieb, 23 Crime & Just.)). But early versions of so-called
"sexual psychopath" laws cast a broad net and were
often criticized for failing to distinguish the more violent
sex offenders from the less serious ones (i.e., peeping
Toms). See Lieb, 23 Crime & Just. at 63-65.
After reaching a peak across the nation in the mid-1960s,
these laws eventually fell into disfavor primarily because of
perceived abuses, and many of them were repealed by the
mid-1980s. See Tamara Rice Lave & Franklin E.
Zimring, Assessing the Real Risk of Sexually Violent
Predators: Doctor Padilla's Dangerous Data, 55 Am.
Crim. L. Rev. 705, 711-12 (2018) (discussing reports of
prosecutors' use of sexual psychopath proceedings
"in otherwise weak cases to lock away nuisance offenders
for indefinite periods of time" and in conditions of
"bare custodial confinement" with no attempt at
clinical treatment); Lieb, 23 Crime & Just. at 65.
generation of civil commitment laws targeting sex offenders
began in 1990 with Washington's passage of the first
"sexually violent predator" civil commitment laws,
laws that were inspired by the case of Earl Kenneth Shriner.
Lieb, 23 Crime & Just. at 66; see also Earl Kenneth
visited May 28, 2019). Shriner was a mentally retarded sex
offender with a 24-year history of killing, sexual assault,
and kidnapping. Lieb, 23 Crime & Just. at 66. Washington
prison officials attempted to have him civilly committed
after he served ten years in prison and they discovered his
plans to torture children after his release. Id.
These attempts proved unsuccessful, and two years after his
release Shriner kidnapped a seven-year-old boy, raped,
strangled, and sexually mutilated him, and then left him in
the woods to die. Id.
response to the public outcry over the heinous crime, a task
force was appointed and proposed a solution that was
subsequently enacted into law. The laws passed were intended
to address a group of "small but exceedingly dangerous .
. . sexually violent predators" that were not amenable
to already available means for involuntary commitment. Wash.
Rev. Code. Ann. § 71.09.010 (amended 2001).
Washington's statutory scheme provided a means to civilly
commit sex offenders with at least one prior crime of sexual
violence upon a showing that they suffered from a
"mental abnormality or personality disorder" that
made them likely to engage in future predatory acts of sexual
violence. Id. § 71.09.020 (amended 2015).
approach became a model for other states, and in 1997 the
United States Supreme Court gave these laws its blessing in
Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072
(1997). Kansas's Sexually Violent Predator Act was
enacted in 1994, and the first person to be committed under
it was Leroy Hendricks. Id. at 350, 117 S.Ct. at
2076. Hendricks had a long history of sexually molesting
children. Id. He was convicted in 1984 of taking
"indecent liberties" with two 13-year-old boys and
was sentenced to ten years' confinement. Id. at
353, 117 S.Ct. at 2078. The Supreme Court described
Hendricks's long history of predatory conduct based upon
his own testimony at the civil commitment hearing as a
chilling history of repeated child sexual molestation and
abuse, beginning in 1955 when he exposed his genitals to two
young girls. At that time, he pleaded guilty to indecent
exposure. Then, in 1957, he was convicted of lewdness
involving a young girl and received a brief jail sentence. In
1960, he molested two young boys while he worked for a
carnival. After serving two years in prison for that offense,
he was paroled, only to be rearrested for molesting a
7-year-old girl. Attempts were made to treat him for his
sexual deviance, and in 1965 he was considered "safe to
be at large," and was discharged from a state
psychiatric hospital. . . .
Shortly thereafter, however, Hendricks sexually assaulted
another young boy and girl-he performed oral sex on the
8-year-old girl and fondled the 11-year-old boy. He was again
imprisoned in 1967, but refused to participate in a sex
offender treatment program, and thus remained incarcerated
until his parole in 1972. Diagnosed as a pedophile, Hendricks
entered into, but then abandoned, a treatment program. . . .
[S]oon after his 1972 parole, Hendricks began to abuse his
own stepdaughter and stepson. He forced the children to
engage in sexual activity with him over a period of
approximately four years. Then, as noted above, Hendricks was
convicted of "taking indecent liberties" with two
adolescent boys after he attempted to fondle them.
Id. at 354-55, 117 S.Ct. at 2078. At trial Hendricks
admitted that he could not control his urges to molest
children, despite his claimed recognition of the harm caused
by his behavior, and stated "that the only sure way he
could keep from sexually abusing children in the future was
'to die.'" Id. at 355, 117 S.Ct. at
2078. Hendricks agreed with the state physician's
diagnosis that he suffered from pedophilia and told the
physician that "treatment is bull****."
Id. at 355, 117 S.Ct. at 2079.
Supreme Court rejected Hendricks's claims that
Kansas's Sexually Violent Predator Act violated the
requirements of substantive due process and the prohibitions
against double jeopardy and ex post facto lawmaking.
Id. at 356-71, 117 S.Ct. at 2079- 86. But in so
doing, the court noted that simply being dangerous is not
sufficient cause for indefinite involuntary commitment.
Id. at 358, 117 S.Ct. at 2080.
efforts to establish sexually violent predator civil
commitment proceedings in Texas began in 1995 with a bill to
establish court-ordered mental health services for those
offenders deemed to be sexually violent predators. Tex. H.B.
595, 74th Leg., R.S. (1995). That effort and a second in 1997
were unsuccessful. See id.; Tex. S.B. 77, 75th Leg.,
with the enactment of Chapter 841 of the health and safety
code in 1999, the Texas Legislature recognized the existence
of "a small but extremely dangerous group of sexually
violent predators" with behavioral abnormalities that
are not amenable to traditional mental illness treatment
modalities and that make them likely to engage in repeated
predatory acts of sexual violence. Act of May 19, 1999, 76th
Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4143,
4143 (codified at Tex. Health & Safety Code Ann. §
15 years of "[h]orrible mismanagement," the system
for civilly committing sexually violent predators was
overhauled in 2015. See Sen. Comm. on Criminal
Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S.
(2015). At that time, there were over 25, 000 sex offenders
in prison and there were 380 civilly committed sexually
violent predators-less than 2% of imprisoned sex offenders.
Id. As of March 2017, there were 423 civilly
committed sexually violent predators in Texas. See
Jack, Civil Commitment: Coming to a Town Near You at
The civil commitment process
to chapter 841, within two years of the anticipated release
date of any person serving a sentence for a sexually violent
offense, the Texas Department of Criminal Justice (TDCJ) is
required to notify a multidisciplinary team of the
anticipated release. Tex. Health & Safety Code Ann.
§ 841.021. The team, composed of individuals from
various state agencies, including a mental health
professional, a licensed sex offender treatment provider, and
a licensed peace officer, then conducts a two-part assessment
of the inmate. Id. § 841.022.
the team assesses whether the person is a repeat sexually
violent offender and whether they believe he is likely to
commit a sexually violent offense after release. Id.
§ 841.022(c). The team then notifies TDCJ of its
assessment and, if appropriate, recommends the assessment of
the person for a behavioral abnormality. Id. §
841.022(c)(2)-(3). If the team recommends a behavioral
abnormality assessment, the second part of the assessment
point, TDCJ must consult an expert to ascertain if the person
suffers from a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence. Id.
§ 841.023(a). Based upon the expert's opinion, if
TDCJ determines that he does suffer from a behavioral
abnormality, TDCJ must give notice to the attorney
representing the state for the county in which the person was
most recently convicted of a sexually violent offense.
Id. § 841.023(b).
receiving TDCJ's notice, the state's attorney has 90
days to file a petition for civil commitment. Id.
§ 841.041(b)(1). Once the petition is filed, the trial
court is required to conduct a trial within 270 days.
Id. § 841.061(a). The statute expressly grants
the person certain rights during the proceeding, including
the right to appear at trial, the right to a jury trial, and
the right to the effective assistance of counsel.
Id. §§ 841.061(b), (d), 841.144.
receive a civil commitment order, the State must show beyond
a reasonable doubt that the person (1) is a repeat sexually
violent offender, and (2) suffers from a behavioral
abnormality that makes him likely to engage in a predatory
act of sexual violence. Id. § 841.003 (defining
"sexually violent predator"), § 841.062(a)
(imposing a "beyond reasonable doubt" burden of
proof). The jury's verdict must be unanimous.
Id. § 841.062(b).
The terms of civil commitment
factfinder determines that the person is a sexually violent
predator, the trial court must enter a civil commitment
order. Id. § 841.081(a). But before entering
the order, the trial court may impose certain requirements,
including requirements that the person reside where
instructed by the Texas Civil Commitment Office (TCCO), that
the person participate in and comply with a sex offender
treatment program, and that the person submit to tracking and
any other appropriate supervision. Id. §
841.082. When the civil commitment order is entered, it
becomes immediately effective, and treatment and supervision
will begin once the person is released from a secure
correctional facility. Id. § 841.081.
the person is released from TDCJ's custody, TCCO bears
responsibility for providing the appropriate and necessary
supervision and treatment. Id. § 841.007. TCCO
accomplishes this through a tiered program that provides the
opportunity for the person to transition from a total
confinement facility, to less restrictive housing and
supervision, and then to an eventual release from commitment,
depending on the person's behavior and treatment.
Id. § 841.0831. TCCO is required to transfer
the person to less restrictive housing and supervision if
doing so is in the best interest of the person and conditions
can be imposed to adequately protect the community.
Id. § 841.0834. But TCCO may also transfer the
person back to a more restrictive tier if it later determines
that such a transfer is necessary for further treatment and
to protect the community. Id.
Review of commitment
order of civil commitment must be periodically reviewed. If a
civilly-committed person does not petition for his release
sooner, the statute requires a "biennial"
examination. Id. §§ 841.101-.102, .121. In
this process, the trial court judge reviews an updated report
prepared by an expert regarding the committed person's
status. Id. § 841.102. After reviewing the
expert's report, the trial court may either issue an
order concluding the review or set a hearing for the purpose
of determining whether the terms of commitment should be
modified or whether probable cause exists to believe that the
person's behavioral abnormality has changed to the extent
that he is no longer likely to engage in a predatory act of
sexual violence. Id. If the trial court sets a
hearing to determine whether probable cause exists, this
essentially becomes a de novo proceeding. Id.
The testimony at Stoddard's civil commitment
civil commitment trial was held in July 2017. Two witnesses
testified-Stoddard and Timothy Proctor, a forensic
psychologist. Proctor opined that Stoddard suffered from a
behavioral abnormality that made him likely to engage in a
predatory act of sexual violence. Proctor based his
assessment on one two-hour interview of Stoddard conducted
six months earlier, Stoddard's deposition in this case,
the images that were the subject of Stoddard's child
pornography conviction, records about Stoddard's
childhood and education, and a report from a separate
evaluation conducted by Dr. Jorge Varela. According to
Proctor, Dr. Varela had evaluated Stoddard first and
determined that Stoddard had an unspecified behavioral
identified a number of factors that he considered in
evaluating Stoddard, including: (A) Stoddard's sexual
deviancy, (B) Stoddard's denial and minimization of his
guilt, (C) Stoddard's participation in sex offender
treatment, (D) Stoddard's personality traits, (E)
Stoddard's history of substance abuse, (F) Stoddard's
nonsexual offense history, (G) Stoddard's employment and
relationship history, (H) Stoddard's prison disciplinary
history, and (I) protective factors.
emphasized Stoddard's sexual deviancy as a "very
strong" factor and spent much of his testimony
addressing it. He diagnosed Stoddard with nonexclusive-type
pedophilic disorder, meaning that Stoddard was sexually
attracted to male and female children and adults.
explained in his testimony that his diagnosis of Stoddard was
centered upon Stoddard's 2003 sex offenses. In
Proctor's view, Stoddard's possession of child
pornography before his commission of sexual acts with the
children was significant as it indicated his heightened
sexual interest in children. The subsequent escalation of the
abuse from possession of child pornography concerned Proctor.
He described the escalation of Stoddard's perversion from
possessing, and presumably viewing, child pornography, to
grooming Alice and Bobby, to repeatedly abusing Alice, and
finally to abusing Bobby and forcing them to perform sexual
acts on each other. According to Proctor, "[W]hen an
offender uses grooming [or] has shown a history of grooming
children, that shows a history of going forward." Here
there is no history of grooming children other than Alice and
Bobby but only a prior use of grooming with regard to the
also emphasized Bobby's gender and the children's
lack of a familial relationship to Stoddard (Stoddard was not
dating Linda or otherwise related to the children). According
to Proctor, sex offenders that abuse males pose a greater
risk of ...