In re Commitment of Shelton

IN RE: THE COMMITMENT OF JUSTIN SHELTON

No. 02-19-00033-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

February 13, 2020

On Appeal from the 16th District Court Denton County, Texas

Trial Court No. 18-1648-16

Before Sudderth, C.J.; Womack and Wallach, JJ.

Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

In four issues, appellant Justin Shelton appeals the trial court's order that he be committed as a sexually violent predator. Specifically, Shelton argues (1) that the State committed fundamental error by allowing him to enter into a plea agreement for a low-level sentence for the purpose of commencing this commitment proceeding to detain him indefinitely; (2) that the trial court prevented him from fully presenting defensive theories when it sustained the State's objection to his closing argument; (3) that the trial court erred by granting a partial directed verdict; and (4) that the trial court erred by refusing to include his requested charge that the jury could acquit him on less than a unanimous jury. We will affirm.

II. BACKGROUND

Shelton has been convicted of six sex offenses. In 2004, when he was twenty, Shelton was convicted of two counts of sexual assault against a fifteen-year-old girl. In 2015, when he was thirty, Shelton was convicted of two more sexual assaults against a fourteen-year-old girl. While he was serving his sentence for the second set of convictions, the State petitioned to have Shelton declared a sexually violent predator under Chapter 841 of the Health and Safety Code. See Tex. Health & Safety Code Ann. § 841.003. After the filing of the State's petition but prior to a trial being held, Shelton's biological daughter made an outcry that Shelton had sexually assaulted her when she was between the ages of nine and eleven. The State withdrew itscommitment petition and entered into a plea agreement with Shelton wherein he pleaded guilty to indecency with a child by contact (touching his daughter's breast) and aggravated sexual assault (digitally penetrating his daughter's sexual organ). Shelton's plea was that he serve five years' confinement. Shelton was scheduled to be released from incarceration on November 15, 2019. After Shelton entered his plea agreement with the State, the State re-filed these commitment proceedings. A jury trial was held on November 6, 2018.

A. Dr. Sheri Gaines Testified

At trial, psychiatrist Dr. Sheri Gaines testified that, among other areas of psychiatry, she had practiced forensic psychiatry for twenty-eight years and that she had evaluated approximately 135 individuals for civil-commitment cases. As part of her evaluation of Shelton for this case, she met with Shelton for roughly three-and-a-half hours, and she reviewed numerous documents related to his criminal and psychological histories. One of the documents she reviewed was a report from a psychologist who evaluated Shelton when the State originally petitioned for Shelton's commitment in 2015. Gaines testified that the psychologist who wrote the report concluded that Shelton has a behavioral abnormality; Gaines agreed. Gaines explained that Shelton displayed two major risk factors: sexual deviance and antisocial behavior. Gaines said that she diagnosed Shelton sexually deviant because he had been convicted of numerous sexual offenses, once against a prepubescent child and others against postpubescent children. Gaines identified these acts as sexually deviantbecause they are illegal, and prepubescent and postpubescent children do not possess the brain maturity to be able to consent to sex.

Gaines further averred that the fact that Shelton quickly violated his community supervision¹ terms after his first conviction indicated an inability by Shelton to follow social rules, typical of antisocial behavior. After Shelton's community supervision was revoked, he went to prison where he attended an eighteen-month sexual-offender program. Gaines said that the records indicated that although he participated in the program, his treatment provider expressed concern that Shelton was not showing evidence of internalizing the things he was learning.

Gaines said that after Shelton was released from prison, he failed to continue sex-offender treatment despite recommendations to do so. Instead, Shelton committed another two sexual assault offenses, this time with a fourteen-year-old girl. Gaines said that in addition to him having committed the two sexual assaults, this episode by Shelton was disturbing because it appeared that Shelton and the victim had exchanged sex-based text messages as well as text messages talking about killing the girl's mother in order for her and Shelton to be together. Gaines also said that Shelton had been inconsistent, and at times outright disingenuous, throughout the years about what actually transpired between him and the girl, at times claiming thatthe sexual acts were consensual. According to Gaines, this behavior demonstrated both antisocial behavior and sexual deviancy.

Gaines explained that after Shelton's offenses against the fifteen year old and the fourteen year old, Shelton's sexually deviant behavior broadened in range in that he began to sexually abuse his own prepubescent daughter when she was between the ages of nine and eleven.² Another risk factor that Gaines described Shelton as displaying was that he would groom his victims by providing them with drugs and acting as a father figure to them. She also said that Shelton sees himself as the victim of circumstances rather than someone who did something wrong and that he believed his sexual acts with the two postpubescent girls had a positive impact on them and helped straighten out their lives.

Gaines stated that with regard to Shelton's daughter, Shelton maintained that there were innocent reasons for the actions that led to him pleading guilty to indecency with a child and aggravated sexual assault of a child. According to Gaines, Shelton sexualized his daughter and expressed that he liked the way his daughter looks, and he used very crude words to describe her genitalia. At one point in sex-offender treatment, Shelton quoted a passage of the Bible that he said made it "okay to have sex with [one's own] daughter in order to keep [one's] bloodline going."Gaines also said that Shelton displayed manipulative and antisocial behavior while incarcerated—for instance, he would send letters to his daughter stating that if she told anyone what had transpired between them, he would kill himself.

Gaines said that Shelton's continued recidivism indicated a "huge risk factor" in her diagnoses because it demonstrated that Shelton suffered from "persistence after punishment" behavior and that this indicated that Shelton was at a future risk to offend again. Gaines said that her sexual-deviant diagnosis of Shelton is that he experiences "pedophilic disorder." Gaines testified that this is a lifelong disorder and that Shelton was at high risk to offend again. She also said that in making this diagnosis she took into account that Shelton had sexually assaulted a child between the ages of nine and eleven as well as other victims who were thirteen, fourteen, and fifteen. Gaines said that it was not only the offenses against his daughter that led to her diagnosis but rather the "whole picture" of Shelton that she had developed from meeting with him and examining his history.

Pertaining more to her antisocial-personality-disorder diagnosis, Gaines said that unlike most individuals that she had assessed, there was a large amount of evidence from Shelton's pubescent past that indicated he had suffered from the disorder for some time. Specifically, Gaines said that Shelton had run away from home multiple times as a teen, been suspended from school, and spent time in juvenile detention twice when he was thirteen for two separate burglaries of habitations. Gaines averred that Shelton's antisocial behavior continued intoadulthood and that Shelton had a history of drug use, domestic violence, and criminal mischief, including slashing tires, harassment, and retaliation. Gaines also said that Shelton has a poor employment history—he had been fired from multiple jobs—and that this instability was another recidivism risk factor. By Gaines's account, Shelton's antisocial personality disorder has not diminished over time and indicates a predisposition to committing more sexually violent offenses. Gaines also stated that Shelton's persistent drug use is a risk factor for him to reoffend. Gaines expressed concerns that Shelton does not have a support system and that he does not see himself at risk to reoffend.

B. Shelton Testified

The State called Shelton to testify at trial. He admitted that he had not been truthful in multiple depositions in the past year nor in multiple psychological evaluations. Shelton averred that he began to have problems with authority figures when he was young because his stepfather had abused him. Shelton recalled how he had been suspended from school at age nine and had later been expelled. He said that he began to use illegal substances around the age of twelve and that the first drug he used was heroine, that he had tried cocaine, but that his preferred drug of choice during his younger years was marijuana but later methamphetamine. He justified his two juvenile burglary adjudications by claiming he was attempting to retrieve his keys from his neighbors' house once and merely closing the window for his neighbor the second time. Around the time he turned twenty, he was jailed for shoplifting,harassment, and criminal trespass; after he had sexually assaulted the fifteen year old in 2004, he was arrested for a myriad of offenses including criminal mischief, domestic assault, and retaliation.

Shelton described himself as a "recovering addict" and blamed illegal drugs for his past criminal history. Shelton said that when he used methamphetamine, it made him see women as "sex objects." He admitted...