Opinion
NO. 01-17-00649-CV
07-12-2018
IN RE COMMITMENT OF EDGAR MANUEL BARRIENTOS
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Case No. 16-CV-1368
CONCURRING OPINION
The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. . . . The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but
perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. . . . The deep commitment of the Nation to the right of jury trial . . . must . . . be respected by the States.
Duncan v. Louisiana, 391 U.S. 145, 155-56, 88 S. Ct. 1444, 1451 (1968) (emphasis added) (footnote omitted).
A jury found appellant, Edgar Manuel Barrientos, to be a sexually violent predator as defined in the Sexually Violent Predator Act (the "SVP" Act), and the trial court, in accord with the jury's finding, rendered a final judgment and an order of civil commitment. In his first issue, appellant contends that the trial court erred in granting the State a directed verdict on the issue of whether he is a "repeat sexually violent offender."
See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001-.153 (Vernon 2017 & Supp. 2017).
See id. § 841.003(a)(1).
I concur in the judgment of the Court and write separately to explain why, although the trial court erred in granting the State a directed verdict, we, under this Court's precedent, must, at this time, overrule appellant's complaint. See In re Commitment of Talley, 522 S.W.3d 742, 749-51 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also In re Commitment of Hood, No. 01-16-00866-CV, 2018 WL 1633330, at *2-4 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018, no pet.) (mem. op.).
I join the majority opinion in its discussion and holding regarding appellant's second issue.
Right to Trial by Jury
In his first issue, appellant argues that the trial court erred in granting the State a directed verdict on the issue of whether he is a "repeat sexually violent offender" because "a jury (when demanded) [is] the sole determiner of whether a person is a sexually violent predator," "which includes the 'repeat sexually violent offender element,'" and "there [is] a fact issue regarding whether [appellant] is a repeat sexually violent offender" in the instant case. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.003(a) ("A person is a sexually violent predator . . . if the person: (1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality . . . ."), 841.061(b) (entitled to jury trial on demand), 841.062(a)-(b) (Vernon 2017) ("[J]ury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator[,]" and "[a] jury determination that the person is a sexually violent predator must be by unanimous verdict.").
See generally In re Commitment of Harris, 541 S.W.3d 322, 331 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ("In some cases, there may be a fact issue regarding whether a defendant is a repeat sexually violent offender.").
The SVP Act expressly provides that either the State or a person accused of being a sexually violent predator is "entitled to a jury trial on demand." Id. § 841.061(b). The SVP Act also specifically states that the jury "shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." Id. § 841.062(a) (emphasis added). And it further provides that "[a] jury determination that the person is a sexually violent predator must be by unanimous verdict." Id. § 841.062(b).
Regardless, the majority, relying on the erroneous precedent of this Court, holds that "when there is undisputed evidence establishing that the defendant has been convicted of more than one sexually violent offense and a sentence was imposed for one of them, 'a person's status as a sexually violent offender is a legal determination appropriate for . . . directed verdict.'" (Quoting In re Commitment of Talley, 522 S.W.3d at 750.) However, the erroneous precedent of this Court ignores the well-established meaning of the plain language of the SVP Act, which controls over our rules of civil procedure. See TEX. HEALTH & SAFETY CODE ANN. § 841.146(b) (Vernon 2017); In re Commitment of Talley, 522 S.W.3d at 751-53 (Jennings, J., dissenting); see also In re Commitment of Hood, 2018 WL 1633330, at *4-6 (Jennings, J., concurring).
The majority also cites recent decisions from our sister courts of appeals, which simply rely on our own erroneous opinion in In re Commitment of Talley, 522 S.W.3d 742 (Tex. App.—Houston [1st Dist.] 2017, no pet.) or the erroneous precedent of the Beaumont Court of Appeals. See In re Commitment of Harris, 541 S.W.3d at 330-31; In re Commitment of Perdue, 530 S.W.3d 750, 751-54 (Tex. App.—Fort Worth 2017, pet. denied); In re Commitment of Decker, No. 11-17-00007-CV, 2017 WL 2869847, at *1-4 (Tex. App.—Eastland June 30, 2017, no pet.) (mem. op.); In re Commitment of Black, 522 S.W.3d 2, 6 (Tex. App.—San Antonio 2017, pet. denied); see also In re Commitment of Talley, 522 S.W.3d at 751-53 (Jennings, J., dissenting) (addressing erroneous precedent of the Beaumont Court of Appeals); In re Commitment of Stuteville, 463 S.W.3d 543, 559-60 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (Jennings, J., concurring) (same).
The SVP Act provides, in no uncertain terms, that a person accused of being a sexually violent predator has a statutory right to a jury trial. Appellant was "entitled to a jury trial" upon his timely "demand," and he had the right to have the jury determine, "beyond a reasonable doubt" that he is a sexually violent predator. TEX. HEALTH & SAFETY CODE ANN. §§ 841.061(b), 841.062(a) (emphasis added). A person is considered to be a "sexually violent predator" only if it is determined that he: (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(a). Such a determination "must be by unanimous verdict." Id. § 841.062(b).
Although the SVP Act concerns "civil" commitments, the Texas Legislature, in crafting the statute, invoked well-established and understood constitutional and criminal-law principles. Given the grave consequences at stake in a SVP Act civil-commitment proceeding, it is readily apparent that the legislature chose its words carefully, and no court is free to ignore the plain meaning of these words. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) ("We must enforce the statute 'as written' and 'refrain from rewriting text that lawmakers chose.'" (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009))). By directing the jury to find in favor of the State, the trial court usurped the fact-finding authority that the legislature has clearly assigned solely to the jury in a SVP Act civil-commitment proceeding. It, thus, violated appellant's statutory right to a trial by jury.
As noted by Justice Scalia, the right to a jury trial "embodies 'a profound judgment about the way in which law should be enforced and justice administered.'" Carella v. California, 491 U.S. 263, 268, 109 S. Ct. 2419, 2422 (1989) (Scalia, J., concurring) (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451 (1968)). He explained:
It is a structural guarantee that "reflect[s] a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges." A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the State.Id. at 268, 109 S. Ct. at 2422 (alteration in original) (emphasis added) (citation omitted) (quoting Duncan, 391 U.S. at 156, 88 S. Ct. at 1451). And because "with a directed verdict, 'the error . . . is that the wrong entity judged'" the facts, the error cannot be harmless. Id. at 269, 109 S. Ct. at 2423 (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986)).
Based on the foregoing, I would hold that the trial court erred in granting the State a directed verdict on the issue of whether appellant is a "repeat sexually violent offender." However, I recognize that this Court has already rejected appellant's complaint. See In re Commitment of Talley, 522 S.W.3d at 749-51; see also In re Commitment of Hood, 2018 WL 1633330, at *2-4.
In reaching the holding in In re Commitment of Talley, this Court erroneously relied on In re Commitment of Bohannan, 388 S.W.3d 296 (Tex. 2012). See 522 S.W.3d at 749-51. The sole issue facing the Texas Supreme Court in In re Commitment of Bohannan was "what qualifications an expert must have to testify regarding whether a person is a sexually violent predator and therefore subject to civil commitment for outpatient treatment and supervision." 388 S.W.3d at 298. The court was not presented with the question of whether the trial court erred in granting the State a directed verdict on the issue of whether appellant was a "repeat sexually violent offender."
Accordingly, I respectfully request that the Texas Supreme Court overrule this Court's decision in In re Commitment of Talley, In re Commitment of Hood, and in this current case. See Benge v. Williams, 472 S.W.3d 684, 738 (Tex. App.—Houston [1st Dist.] 2014) (Jennings, J., dissenting from denial of en banc reconsideration) (although "we are not free to disregard binding precedent," as appellate court justices, "we . . . are certainly free to point out any flaws in the reasoning of the [binding] opinions"), aff'd, No. 14-1057, --- S.W.3d ---, 2018 WL 2374640 (Tex. May 25, 2018); Jones v. State, 962 S.W.2d 96, 99 (Tex. App.—Houston [1st Dist.] 1997) (Taft, J., concurring) (although "we are bound by precedent . . . , we are not gagged" by it), aff'd, 984 S.W.2d 254 (Tex. Crim. App. 1998).
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Jennings, J., concurring.