In re Commitment of Jones

650 S.W.3d 692

IN RE: the COMMITMENT OF Gregory A. JONES

No. 02-18-00019-CV

Court of Appeals of Texas, Fort Worth.

Delivered: February 3, 2022

Rehearing Denied March 3, 2022

ATTORNEY FOR APPELLANT: JOHN C. MONCURE, HUNTSVILLE, TEXAS.

ATTORNEY FOR APPELLEE: MELINDA FLETCHER, SPECIAL PROSECUTION UNIT, AMARILLO, TEXAS.

Before the En Banc Court

OPINION ON EN BANC RECONSIDERATION

Opinion on En Banc Reconsideration by Justice Wallach

Introduction

We grant the State's Motion for Reconsideration En Banc, withdraw our opinion and judgment of May 6, 2021, and substitute this opinion on en banc reconsideration.

This is our second time to consider this sexually-violent-predator civil-commitment case. In Jones's first appeal, we held that the trial court reversibly erred by refusing to give a nonunanimity instruction to the jury, and we remanded the case for a new trial. See In re Commitment of Jones , 571 S.W.3d 880, 881 (Tex. App.—Fort Worth 2019) ( Jones 1 ), rev'd , 602 S.W.3d 908 (Tex. 2020) (op. on reh'g) ( Jones 2 ). Though the Texas Supreme Court agreed that the trial court erred, it disagreed with our harm assessment and remanded the case for our consideration of Jones's remaining issues. Jones 2 , 602 S.W.3d at 914–15. It specifically directed our attention to the Allen charge given to the jury, id. , which is Jones's Issue 5 on remand. Having considered the record as a whole, we hold that there was no reversible error in the Allen charge given by the trial court.

Jones raises four other issues for consideration. In Issue 1, Jones challenges the trial court's admission of expert-opinion "basis" evidence under Rule 705(d) of the Texas Rules of Evidence, contending that it could only have been admitted for its truth for it to have had any evidentiary value, making this evidence inadmissible even under Rule 705(d). In Issue 2, Jones contends that even if the "basis" evidence was admissible, it lacked guarantees of reliability and trustworthiness contrary to Rule 703 of the Texas Rules of Evidence. In Issues 3 and 4, Jones challenges the legal and factual sufficiency of the evidence to support a beyond-a-reasonable-doubt finding that Jones has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. We overrule Jones’ Issues 1 through 5, deny his Motion to Set Aside Order Granting State's Motion for En Banc Reconsideration, and affirm the judgment of the trial court.

I. Background

A. The jury's verdict

We adopt the in-depth discussion of facts presented in our 2019 opinion. See Jones 1 , 571 S.W.3d at 881–87. We offer the following summary to briefly recap the relevant facts:

Jones has an extensive criminal history involving multiple sex offenses. He has been convicted twice of attempted sexual assault, three times of assault, and once of burglary with intent to commit an assault. Each of those convictions resulted from Jones's entry of a guilty plea. Despite his guilty pleas, Jones denied any guilt for those crimes when examined in preparation for these civil commitment proceedings and when he testified in person at the final trial, at times giving wildly implausible excuses of how events were allegedly misconstrued. See id. at 882–84.

According to psychologist Jason Dunham, who evaluated Jones and testified as an expert at trial, Jones was suspected by Arlington Police in twelve additional uncharged assaults, including one in which a man sexually assaulted a woman at knifepoint in an apartment laundry room and then forced her to walk back to her apartment naked. Dunham also testified about a police-report note indicating Jones stated he enjoyed seeing women's surprised looks when he grabbed them inappropriately.

All of Jones's victims were strangers to him. Dunham and the second testifying expert, psychiatrist Sheri Gaines, noted this as a significant risk factor indicating the possibility of a sexual behavioral abnormality, especially when combined with Jones's use of force and weapons, commission of offenses in public places, and complete denial of guilt and lack of remorse.

In addition to the nature of his crimes, the experts considered his "hypersexual nature," his refusal to acknowledge a need for sex-offender treatment, and his nonsexual criminal history, which included assaulting his ex-wife. Based upon their reviews of his past crimes (both charged and suspected), their in-person evaluations of him, and actuarial testing,¹ Dunham and Gaines each concluded that Jones suffers from a behavioral abnormality indicating a likelihood of committing sex offenses in the future.

After hearing the testimonies of Dunham, Gaines, and Jones in one day, the jury was released for the evening. The following morning, the trial court read the charge to the jury, the parties made their closing arguments, and the jury began deliberating at 10:49 a.m. At 11:37 a.m., the jury sent a note asking for a definition and a transcript of certain testimony, to which the trial court responded that it could not provide the definition and instructed that to receive a transcript of testimony, the jury had to express a disagreement regarding that testimony. At 12:01 p.m., the jury sent a follow-up note regarding the sought-after testimony, but the trial court responded that the court reporter was unable to locate responsive testimony. At 12:27 p.m., the jury sent a third note, this time requesting the actuarial tests administered by Dunham or, in the alternative, a transcript of Dunham's testimony regarding the tests. Again, the trial court responded that it could not provide a transcript of Dunham's testimony unless the jury first stated that it disagreed regarding testimony. At 2:07 p.m., the jury sent a fourth note asking, "Can we get something to eat?" The record is silent as to the trial court's response, if any, and whether the jury was fed.²

At 4:15 p.m., the jury sent its fifth note, informing the court, "We are unable to come to a unanimous decision. How shall we proceed?" At the State's request and over Jones's objections,³ the trial court issued the following Allen charge at 4:49 p.m.:

This case has to be settled by some twelve jurors. I regard all of you as honest and intelligent jurors. I do not know of any twelve jurors who can do better than you can. I think you can settle it, and you should settle it, if possible.

I have no desire to attempt to coerce you into a verdict. This is a matter for each of you to determine for yourself, but it is to the interest of society that you should reconsider your differences, and if you can, agree upon a verdict.

You will please return to your room, and if you can reconcile your differences and agree upon a verdict, I hope you will please do so.

The jury immediately requested a break from deliberations, a request the trial court granted while noting the jury had "been in there for six hours." The jury returned to deliberations at 5:20 p.m. and issued its verdict against Jones at 6:35 p.m., almost eight hours after beginning deliberations. The trial court entered judgment accordingly, holding Jones to be a sexually violent predator in need of indefinite civil commitment subject to biennial review. See Tex. Health & Safety Code Ann. § 841.102.

B. Our decision and the Supreme Court's reversal

Jones appealed the trial court's decision. One of his five issues asserted that the trial court erroneously refused to give a non-unanimity instruction to the jury—one instructing that it could render a verdict in Jones's favor non-unanimously, by a vote of 10–2. Jones 1 , 571 S.W.3d at 889. Construing Section 841.062 of the Health and Safety Code and Rule 292 of the Rules of Civil Procedure, we agreed with Jones. Id. at 889–91.

We held that the error was harmful and, in doing so, emphasized the jury's deadlock an hour before issuing its final verdict:

Although we do not know precisely how the vote among the jurors was split during deliberations,^{[4 ]} we know that a split existed. The jury issued four notes concerning the substance of the case: three requested portions of the record to review testimony or definitions of certain terms and one, issued four-and-a-half hours after the jury began deliberating, declared that the jury was deadlocked. In response, a modified Allen charge was delivered by the trial court, urging the jury to continue deliberating. A unanimous verdict was delivered about an hour and fifteen minutes later. Because we know that a split existed, a 10–2 instruction could have had a significant impact on this situation.

Id. at 891.

The Supreme Court disagreed with our harm analysis. After distinguishing the "prevented-from-presenting" and "improper-judgment" prongs of Rule 44.1(a), the Supreme Court held that omitting a non-unanimity instruction was not harmful error because the jury reached a unanimous "yes" verdict: "Because the members of the jury unanimously came to the conclusion that Jones is an SVP, an instruction explaining that a vote of ten of the jurors was sufficient for a verdict declining to find that Jones is an SVP would not have changed the outcome of this case." Jones 2 , 602 S.W.3d at 914–15.⁵ Rather, the Supreme Court directed our attention to the Allen -charge issue, instructing that the proper recourse for a suspicion that the jury did not reach its decision based on "deliberate judgment, sound reflection, and conscientious convictions" is to bring a challenge "on the basis that the verdict was the result of ‘chance or lot’ or that the court's charge, including an Allen charge, was impermissibly coercive." Id. at 914–15 ("[S]uch challenges are independent grounds for reversal and separate from the question of whether the trial court's instructional error was harmful.").

The Supreme Court reversed our judgment and remanded the case for our consideration of Jones's "remaining appellate issues, including the Allen -charge issue." Id. at 915.

II. Discussion

A. The evidence is legally sufficient, and Jones's reliability and trustworthiness complaints were...