Court of Appeals of Texas, Sixth District, Texarkana
Submitted: July 9, 2019
Appeal from the 5th District Court Bowie County, Texas Trial
Court No. 17C1549-005
Morriss, C.J., Burgess and Stevens, JJ.
R. MORRISS, III CHIEF JUSTICE.
question presented in the current appeal by Daniel Allen
Metcalf, preliminary to his appeal of his involuntary
commitment as a "sexually violent predator," is
whether Metcalf, in his subsequent appeal, will be presenting
an arguable basis in law or in fact that he is not such a
predator. Because we find that the evidence demonstrates such
an arguable basis in fact, we determine that the
indigent Metcalf is entitled to a free record for
that subsequent appeal.
sought, but was denied, the preparation of the reporter's
record without charge, averring that he intended to argue on
appeal (1) that the trial court committed reversible error by
admitting improper hearsay evidence and (2) that the evidence
was legally and factually insufficient to support a finding
that Metcalf is a sexually violent predator. See Tex.
Civ. Prac. & Rem. Code Ann. § 13.003(a)(2).
trial court denied Metcalf's request for a free record
because, without a hearing, it found his appeal
frivolous. We, therefore, abated this matter to the
trial court to conduct a frivolousness hearing. See
Coppedge v. United States, 369 U.S. 438, 446-48 (1962);
De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 155
(Tex. App.-San Antonio 1998, no pet.) ("[W]hile the
federal Constitution does not guarantee an appellant a free
record to pursue a frivolous appeal, it does require that she
receive a sufficient record, without charge, to establish the
trial court erred in finding that her appeal is
frivolous."). Following a hearing on the issue of
whether Metcalf's appeal is frivolous, the trial court
determined that the appeal does not present a substantial
question for appellate review. See Tex. Civ. Prac.
& Rem. Code Ann. § 13.003(b). It thus denied
Metcalf a free record. See Tex. Civ. Prac. &
Rem. Code Ann. § 13.003(a).
appellate record is provided only if the trial court finds
that "the appeal is not frivolous" and "the
statement of facts and the clerk's transcript is needed
to decide the issue presented by the appeal." Tex. Civ.
Prac. & Rem. Code Ann. § 13.003(a)(2)(A), (B). An
appeal "is frivolous when it 'lacks an arguable
basis either in law or in fact.'" In re
K.D., 202 S.W.3d 860, 866 (Tex. App.-Fort Worth 2006, no
pet.) (quoting De La Vega, 974 S.W.2d at 154).
"In determining whether an appeal is frivolous, a judge
may consider whether the appellant has presented a
substantial question for appellate review." Tex. Civ.
Prac. & Rem. Code Ann. § 13.003(b). We review for an
abuse of discretion a trial court's determination of
whether an appeal is frivolous. In re A.V., 350
S.W.3d 317, 320 (Tex. App.-San Antonio 2011, no pet.).
trial counsel testified at the hearing that she believed the
evidence was factually insufficient to support the
verdict. Counsel explained that Metcalf scored 5 on
the Static-99R, which has a range between -3 and 12, and that
he scored a 19 on the Psychopathy Checklist-Revised (PCL-R),
which has a range between 0 and 40. Counsel reported that a
second expert, Dr. Turner, testified that Metcalf did not
suffer from a psychopathic personality. Counsel reported that
the legislative findings within Chapter 841 of the Texas
Health and Safety Code state that the law is aimed at a small
but extremely dangerous group of sexually violent predators
who suffer from a behavioral abnormality, rather than
ordinary criminal recidivists. See Tex. Health &
Safety Code Ann. § 841.001. Counsel further testified
that the only testing mentioned in the statute is testing for
psychopathy. According to counsel, Metcalf committed his
first offense at the age of seventeen in 1994 and committed
his second sexually violent offense in approximately 2010.
The second conviction, according to counsel, was based on
accomplice liability in connection with Metcalf's
wife's sexual conduct with a thirteen-year-old boy.
on this evidence and argument, counsel relies on In re
Commitment of Stoddard, No. 02-17-00364-CV, 2019 WL
2292981 (Tex. App.-Fort Worth May 30, 2019, no pet.) (mem.
op.). In that case, our sister court reversed the trial
court's judgment because it found that the evidence was
factually insufficient to support the jury's finding that
Stoddard was a sexually violent predator. Id. at *1.
Stoddard scored a 27 on the PCL-R and a 4 on the Static-99R.
Id. at *8. According to our sister court,
"Chapter 841 requires that [a sexual predator] suffer
from a behavioral abnormality that renders him a member of
the small group of extremely dangerous sex offenders that
require civil commitment because they are likely to engage in
future predatory acts of sexual violence." Id.
at *11. Moreover, "to interpret the statute without
regard to Section 841.001 . . . risks ripping Chapter 841
from its constitutional foundation, thus opening the door to
civil commitments of sex offenders based solely on their
predicate sex offenses." Id. at *12.
appeal is frivolous if it lacks an arguable basis either in
law or in fact. De La Vega, 974 S.W.2d at 154. Here,
the reasoning expressed in Stoddard provides an
arguable basis in law for Metcalf's appellate point.
Metcalf's test scores, which are similar to those in
Stoddard, likewise present an arguable basis in fact
for his appellate point. Because Metcalf's appeal is not
frivolous and a statement of facts and the clerk's
transcript are needed to decide the issues presented by the
appeal, Metcalf is entitled to a free record.
reverse the order of the trial court and remand this matter
with instructions to ensure that Metcalf receives a free
record for purposes of his appeal in cause number