In re Commitment of Fletcher

658 S.W.3d 834

IN RE: the COMMITMENT OF William Earl FLETCHER.

No. 08-21-00181-CV

Court of Appeals of Texas, El Paso.

December 9, 2022

Melinda Fletcher, Dustin H. Boyd, for Appellee.

Kenneth D. Nash, John C. Moncure, for Appellant.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

GINA M. PALAFOX, Justice The State of Texas filed a petition to commit Appellant William Earl Fletcher as a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001 -.153 (the SVP Act). At trial, a jury unanimously found, beyond a reasonable doubt, that Fletcher was a sexually violent predator. The trial court signed a judgment and order of commitment in accordance with the jury's verdict, and, after the trial court denied his motion for new trial, Appellant timely appealed.

In three issues, Appellant contends the trial court reversibly erred in: (1) prohibiting Appellant from discussing with the venire panel the applicable burden of proof; (2) sustaining the State's objection to Appellant's discussion of the burden of proof during his opening statement; and (3) thereafter, erroneously instructing the jury on the burden of proof during Appellant's opening statement. We affirm the trial court's judgment and order of civil commitment.¹

I. BACKGROUND

A. Statutory framework

To establish that an individual is an SVP, the State must prove the individual: "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." TEX. HEALTH & SAFETY CODE ANN. § 841.003(a). Under the first element of the SVP statute, a person is a "repeat sexually violent offender" if "the person is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses ...." Id. § 841.003(b). And as relevant here, sexual assault and aggravated sexual assault are sexually violent offenses. Id. § 841.002(8)(A); see also TEX. PENAL CODE ANN. §§ 22.011, 22.021. Under the second element of the SVP statute, a "[b]ehavioral abnormality" is "a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person." TEX. HEALTH & SAFETY CODE ANN. § 841.002(2).

The State bears the burden of proving these two elements beyond a reasonable doubt. TEX. HEALTH & SAFETY CODE ANN. § 841.062.

B. The procedural history

Appellant William Earl Fletcher was convicted of three sexually violent offenses for which he was incarcerated in 1983, 1988, and 1994, respectively. Those offenses included rape, aggravated sexual assault, and sexual assault. In 2020, and before his release from prison, the State petitioned to civilly commit Appellant under the SVP Act, which permits commitment of individuals upon a finding that they (1) are a "repeat sexually violent offender"; and (2) suffer "from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1), (2).

The case was tried to a jury over three days. After the close of evidence, the trial court read the court's charge to the jury. Among other instructions, the trial court informed the jury it had found as a matter of law that Fletcher was a repeat sexually violent offender, and the jury was instructed that the State had satisfied the first required element. As to the second required element, the jury was alternatively instructed, that if all twelve members believed, beyond a reasonable doubt, that the State had proven that Appellant suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence, it was instructed to answer the question yes as to that element; or, if ten or more jurors believed the State had failed to prove beyond a reasonable doubt that Appellant suffered from such a behavioral abnormality, it was instructed to answer the question no.

After deliberating, the jury returned a unanimous verdict, finding beyond a reasonable doubt that Fletcher was a sexually violent predator. The trial court subsequently entered a final judgment and order civilly committing Fletcher under the SVP Act. On appeal, Appellant challenges certain rulings made during various phases of the jury trial. Accordingly, we include a detailed review of the trial record relevant to those issues raised on appeal.

C. The trial

1. Voir dire

Before the parties’ examination of the venire, the trial court instructed the jury on the State's burden of proof as follows:

[T]he standard of proof that the State has to meet in this case is the criminal standard.... There are different standards of proof in a civil case, preponderance of the evidence, clear and convincing evidence. But the standard in a criminal case is proof beyond a reasonable doubt. No one charged with a crime can be convicted unless each element of the offense is proved beyond a reasonable doubt. That is the standard that applies in this case .... The State has to prove their case by the standard called proof beyond a reasonable doubt.

What is proof beyond a reasonable doubt? Well, you get to tell us. There is no legal definition of what constitutes proof beyond a reasonable doubt. It is the highest standard of proof that we have [in] our system of jurisprudence. But we leave it up to each individual juror to determine for themselves if that standard has been met.... And after hearing all those [20 or 30] witnesses that the State or the defense brought you, you might think ["]I don't care how much information they presented to me, I'm not convinced beyond a reasonable doubt of the verdict.["] If that's the case then you should answer the question ["]no["] as to whether the man is a violent sexual predator or not. On the other hand, at the end of those 20 witnesses, there may be one that you heard and convinced you beyond a reasonable doubt that he is a violent sexual predator. In that case, if you're convinced beyond a reasonable doubt, then you should answer the question ["]yes["]. It is not determined by how much information you hear.

Echoing this instruction, the prosecutor told the venire panel it was the State's burden to prove the case beyond a reasonable doubt, and further adding, "like the Judge said, it's what it means to you. It doesn't have a definition." As an example, the prosecutor asked whether someone could be convinced of his or her birth date beyond a reasonable doubt, even though he or she did not remember being born. Through questioning of prospective juror number sixteen, the prosecutor posited that a person could be convinced, beyond a reasonable doubt, of their own date of birth based on representations made by his or her parents, as well as by corroborating records (such as a birth certificate), if the person found his or her parents and the corroborative records credible. The prosecutor explained further:

But it's beyond a reasonable doubt. It's not beyond all doubt. It's not beyond an unreasonable doubt.... And that—we know that is not one hundred percent proof of something because—did anybody recognize Mr. Fletcher when he stood up? No. So if you had one hundred percent proof of something, you are typically a witness, right? ... So we know it's not 100 percent proof. It's something lower than that, but it's what it means to you in this case.

Thereafter, the prosecutor urged venire members, if seated on the jury, to focus on the quality, not the quantity, of the evidence presented to them, reiterating that whether the State met its burden depended on whether the jury believed the evidence, regardless of its quantity.

During his discussion of the burden of proof, Fletcher's counsel followed up on the prosecutor's previous "birth date" example. Returning to juror number sixteen, who was questioned by the prosecutor, she asked whether she would still believe, beyond a reasonable doubt, that her birthday was on January 14th, the date she previously provided, if her sibling or other family member showed her adoption papers with a different date of birth. The prospective juror answered that she did not know and would need "more evidence than that." To this response, Fletcher's counsel countered:

I would consider that to be reasonable doubt actually, what you just said.... There's going to be information where you may—one person is going to say something in this case and there might be controverted or different information that's told. And so what I'm trying to get you all to understand is that beyond a reasonable doubt [ ] means then you can't have a question about whether the evidence is true or not.

Immediately thereafter, counsel asked, "So is there anyone here who will have trouble requiring the prosecutor to prove its [sic] case against Mr. Fletcher beyond a reasonable doubt?" No one responded. Fletcher's counsel then continued her presentation on the applicable burden of proof:

We've talked about [sic] there's no real definition for it. But do you all understand by a show of hands that beyond a reasonable doubt is the highest level of proof that a prosecutor or petitioner would have against this respondent? ... In some civil cases, the burden of proof is the responsibility of a plaintiff, and that burden of proof could be by a preponderance of the evidence, and that's a civil case, a regular civil case, maybe an automobile accident.... [T]hey show that 51 percent is the fault of the defendant and in that particular case preponderance of the evidence, 51 percent, they win.

At that point, the trial court interjected:

[Trial Court]: Counsel, counsel, let me correct you. I've heard that phrase all my life in the legal profession.

[Fletcher's counsel]: Yes, sir.

[Trial Court]: There's not a single case or a statute that determines a standard of proof based on percentage. How in the world do you know if you believe something by 51 percent?

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