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In re Commitment of Stoddard

Court of Appeals of Texas, Second District, Fort Worth

May 30, 2019

In re: the Commitment of Jeffery Lee Stoddard

          On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. D371-S-13391-16

          Before Sudderth, C.J.; Gabriel and Birdwell, JJ. [1] Memorandum Opinion on Rehearing by Chief Justice Sudderth Dissenting Memorandum Opinion on Rehearing by Justice Gabriel

          MEMORANDUM OPINION ON REHEARING

          BONNIE SUDDERTH CHIEF JUSTICE

         Appellee 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.[2]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 remains unchanged.

         Appellant 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.

         Background

         In 2003, Stoddard was charged with aggravated sexual assault of two children, seven-year-old Alice and her six-year-old brother Bobby, [3] 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 concurrently.

         After 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.

         Stoddard 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.

         I. A history of civil commitments of sexually violent predators

         A. Nationwide

         A 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.

         A new 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 Shriner, Wikipedia, https://en.wikipedia.org/wiki/Earl_Kenneth_Shriner (last 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.

         In 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).

         Washington's 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.

         The 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.

         B. In Texas

         Legislative 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., R.S. (1997).

         Finally, 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. § 841.001).

         After 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 16.

         1. The civil commitment process

         Pursuant 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.

         First, 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 takes place.

         At that 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).

         After 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.

         To 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).

         2. The terms of civil commitment

         If the 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.

         When 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.

         3. Review of commitment

         Any 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.

         II. The testimony at Stoddard's civil commitment trial

         Stoddard's 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 abnormality.

         Proctor 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.

         A. Sexual deviancy

         Proctor 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.

         Proctor 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 2003 offenses.

         Proctor 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 ...


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