Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-GN-17-002714, HONORABLE MICHAEL LYNCH, JUDGE
Justices Goodwin, Baker, and Smith
MELISSA GOODWIN, JUSTICE.
State of Texas appeals from the trial court's final
judgment based on a non-unanimous jury verdict determining
that Aaron Gipson is not a sexually violent predator (SVP).
See Tex. Health & Safety Code § 841.062(a)
(providing that judge or jury shall determine whether person
is SVP and providing for appeal from determination). The
State raises two issues on appeal. First, the State argues
that because the Texas Health and Safety Code requires a jury
verdict to be unanimous when the jury "determin[es] that
the person is a sexually violent predator," see
id. § 841.062(b), the verdict must also be
unanimous when the jury determines that a person is not an
SVP. Second, the State asserts the trial court erred in
sustaining an "improper impeachment" objection when
the State's counsel asked Gipson on direct examination at
trial if he had asserted his Fifth Amendment privilege during
his deposition, thereby excluding evidence of Gipson's
previous Fifth Amendment invocations. Because we conclude
that the State's statutory construction and evidentiary
arguments are unavailing, we affirm the trial court's
LEGAL AND FACTUAL BACKGROUND
appeal arises out of a civil commitment proceeding to
determine whether Gipson is an SVP. See The Civil
Commitment of Sexually Violent Predators Act, 76th Leg.,
R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4122,
4143-52 (codified as amended at Tex. Health & Safety Code
§§ 841.001-.153) (the SVP Act). In enacting the SVP
Act, the legislature found:
that a small but extremely dangerous group of sexually
violent predators exists and that those predators have a
behavioral abnormality that is not amenable to traditional
mental illness treatment modalities and that makes the
predators likely to engage in repeated predatory acts of
sexual violence. . . . Thus, the legislature finds that civil
commitment procedure for the long-term supervision and
treatment of sexually violent predators is necessary and in
the interest of the state.
Tex. Health & Safety Code § 841.001; see In re
Commitment of Fisher, 164 S.W.3d 637, 639-40 (Tex.
2005). An SVP is defined as a "repeat sexually violent
offender" who "suffers from a behavioral
abnormality that makes the person likely to engage in a
predatory act of sexual violence." Tex. Health &
Safety Code § 841.003(a). The State bears the burden of
proving "beyond a reasonable doubt" that a person
is an SVP. Id. § 841.062(a). The SVP Act also
sets forth the procedures and requirements for determining
whether a person is an SVP that should be civilly committed
for long-term supervision and treatment. See generally
id. §§ 841.002-.153.
the State filed an SVP civil commitment petition against
Gipson, who was close to completing eighteen years of
sentence time for his convictions for aggravated sexual
assault of a child, sexual assault, and failure to comply
with sex offender registration. See id. §
841.041 (setting forth requirements for petition). Both
parties demanded a jury trial, and a four day jury trial
occurred in March 2018. See id. § 84.061(b)
(providing for "jury trial on demand"). On behalf
of the State, two doctors testified as expert witnesses and
Gipson testified as a fact witness. Gipson also testified on
his own behalf, along with his sister and mother.
the State's direct examination of Gipson, the following
exchange occurred, and the accompanying evidentiary objection
is at issue on appeal:
Q. [State's counsel] You would sexually assault [your
daughter] before her daycare?
A. [Gipson] I wasn't in her life when she was in a
Q. Is it true, when you talked to us before, you pled the
Fifth during your deposition?
A. I never confessed to touching my child, my daughter.
Q. But you pled the Fifth when we talked about this in your
[Gipson's counsel]: Objection. That's improper
THE COURT: Ask the question again.
[State's counsel]: I asked if he pled the Fifth about
this offense when he talked about this before, Your Honor.
THE COURT: I'm going to sustain the objection. Move on.
other issue raised on appeal concerns the jury charge. Gipson
submitted a proposed jury charge that included the following
A "yes" answer [to whether Gipson is an SVP] must
be unanimous; that means that all 12 of the jurors must agree
to a "yes" answer. A "no" answer may be
made if 10 jurors agree to it.
the SVP Act dictates that "[a] jury determination that
the person is a sexually violent predator must be by
unanimous verdict," id. § 841.062(b), it
also states that the Texas Rules of Civil Procedure apply to