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In re Commitment of Gipson

Court of Appeals of Texas, Third District, Austin

July 26, 2019

In re Commitment of Aaron Gipson

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. D-1-GN-17-002714, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Smith

          OPINION

          MELISSA GOODWIN, JUSTICE.

         The 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 final judgment.

         I. LEGAL AND FACTUAL BACKGROUND

         This 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.

         Here, 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.

         During 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 daycare.
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 deposition?
[Gipson's counsel]: Objection. That's improper impeachment.
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.

         The other issue raised on appeal concerns the jury charge. Gipson submitted a proposed jury charge that included the following instruction:

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.

         Although the SVP Act dictates that "[a] jury determination that the person is a sexually violent predator must be by unanimous verdict," id. ยง 841.062(b), it also states that the Texas Rules of Civil Procedure apply to civil ...


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