in Re: The Commitment of Maurice Bluitt , 562 S.W.3d 665 ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00150-CV
___________________________
IN RE: THE COMMITMENT OF MAURICE BLUITT
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. D372-S-13193-16
Before Sudderth, C.J.; Meier and Birdwell, JJ.
Opinion by Chief Justice Sudderth
OPINION ON EN BANC RECONSIDERATION
Appellee the State of Texas filed a motion for en banc reconsideration of our
July 12, 2018 opinion and judgment. After considering the motion, we withdraw our
prior opinion and substitute the following in its place. We dismiss the motion for
en banc reconsideration as moot. See, e.g., Ferrant v. Graham Assocs., Inc., No. 02-12-
00190-CV, 2014 WL 1875825, at *1 (Tex. App.—Fort Worth May 8, 2014, no pet.)
(mem. op. on reh’g). Aside from portions added to address the State’s arguments for
reconsideration, our opinion otherwise remains unchanged.
While Appellant Maurice Bluitt was incarcerated in a Colorado prison, the State
of Texas initiated proceedings to have him civilly committed as a sexually violent
predator. See Tex. Health & Safety Code Ann. § 841.081 (West 2017). Because we
hold that Appellant had a statutory right to appear in person at the civil commitment
trial, we reverse the trial court’s judgment and remand the case to the trial court for
further proceedings consistent with this opinion.
Background
I. Appellant has a criminal history including sexually violent offenses.
In the late 1980s, Appellant was indicted in Texas for aggravated sexual assault
of a child under the age of 14. In a plea bargain, Appellant pleaded guilty to the lesser
charge of sexual assault and was placed on deferred adjudication probation for two
years, which he successfully completed.
2
In 1996, Appellant was charged with kidnapping and sexually assaulting a
woman in Colorado. In 1998, he pleaded guilty to the kidnapping charge in exchange
for a four-year term of probation, which he was permitted to serve in Texas. But it
was not long before he was arrested again. In 1999, Appellant was charged in Tarrant
County with indecency with an eight-year-old child by contact. Appellant was
convicted of the crime as charged and sentenced to 20 years’ in the custody of the
Texas Department of Criminal Justice (TDCJ).
In January 2016, when TDCJ released Appellant on parole, he was placed in
the custody of Colorado authorities for a probation revocation proceeding in
connection with his 1998 kidnapping conviction. Eight months later, while the
instant case was pending, the Colorado court revoked Appellant’s probation, and he
was sent to a Colorado prison to serve his ten-year sentence. And so throughout the
pendency of these civil commitment proceedings, Appellant has been incarcerated in
Colorado.
II. After TDCJ released Appellant to Colorado’s custody, the State of Texas
petitioned to civilly commit Appellant.
Approximately two months after Appellant was placed in custody in Colorado,
on March 31, 2016, the State filed a petition to civilly commit Appellant as a sexually
violent predator. See id. But because Appellant was incarcerated in Colorado at the
time, the State sought to abate the proceedings indefinitely. Appellant, through
counsel, filed a response opposing the abatement. In his response, Appellant cited
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the statutory requirement that a trial must be conducted in a sexually-violent-predator
proceeding within 270 days after the petition is served. See id. § 841.061(a)(1) (West
2017). The trial court denied the motion to abate.
Prior to trial, Appellant’s trial counsel struggled to effectively and regularly
communicate with Appellant. The Colorado prison in which Appellant was located
required a court order before it would allow any verbal communications between
Appellant and his attorney. Even after such an order was obtained, the prison still
hindered their ability to communicate by, for instance, requiring that calls be
supervised by a guard.
Soon Appellant’s ability to appear in person for the trial became a concern for
both counsel and the trial court. In email correspondence with the attorneys, the trial
court inquired of the State how it planned to “get [Appellant] from Colorado to
Texas.” An attorney for the State responded that he had been unable to find any
authority to bring Appellant to Texas for the proceeding and suggested that Appellant
might participate in the trial through videoconferencing instead.
Following this email correspondence, in November 2016, Appellant filed a
motion to dismiss the commitment proceeding on two grounds: (1) that if the State
could not bring Appellant to Texas for the trial, his “absolute right” to appear in
person would be violated, and (2) the inability to effectively communicate with his
attorney violated his right to effective assistance of counsel. The State responded by
4
arguing that Appellant was not entitled to appear in person at trial, and the State then
formally requested that the trial court allow him to appear through videoconferencing.
The trial court denied Appellant’s motion to dismiss and granted the State’s
request to allow his participation in trial through videoconferencing. In its order, the
court required that a fax machine be available in the event “there [was] a need to send
facsimile copies of any documents to [Appellant] to review during the trial” and also
provided that Appellant should be afforded the opportunity to communicate with his
counsel whenever necessary by telephone “or other appropriate means.”
On the day of the first trial setting, January 9, 2017, Appellant appeared
through videoconferencing and requested a continuance. In his request, Appellant
agreed to waive his right to proceed to trial within 270 days of being served with the
petition. See id. § 841.061(a)(1). The trial court granted the continuance and reset the
trial to begin April 17, 2017. The trial court also noted on the record that the State
intended to seek permission from the Colorado trial court to allow a Tarrant County
official to transport Appellant to Texas for the April trial.
III. The trial court conducted the trial without Appellant present.
The State’s efforts to secure Appellant’s transportation to Texas for trial
ultimately proved unsuccessful, and on the morning of the first day of trial, Appellant
refused to appear by videoconferencing. Appellant’s trial counsel articulated that
Appellant objected to appearing by video and to the trial being conducted in his
absence. The trial court denied Appellant’s objection after noting on the record that a
5
live video connection with the Colorado prison had been arranged. The trial court
continued to deny repeated objections raised by Appellant’s trial counsel throughout
the proceeding regarding his client’s physical absence from trial.
At the end of the trial, the jury found that Appellant was a sexually violent
predator, and the trial court entered a final judgment civilly committing him. This
appeal followed.
Discussion
Appellant’s two issues on appeal relate to the effects of his imprisonment in
Colorado on his ability to participate in the civil commitment proceedings and to
effectively communicate with his attorney. In his first issue, Appellant argues that the
trial court violated his statutory and constitutional rights by conducting the trial
without him being physically present. In his second issue, Appellant argues that he
was effectively denied his right to the assistance of counsel throughout the
proceedings. Because we find that the statute governing sexually-violent-predator
civil commitments guarantees the right to appear in person at trial, we sustain that
part of Appellant’s first issue and do not reach his second issue. See Tex. R. App. P.
47.1.
I. How to civilly commit a sexually violent predator
In 1999, the Texas Legislature first recognized the existence of “a small but
extremely dangerous group of sexually violent predators” with behavioral
abnormalities that are not amenable to traditional mental illness treatment modalities
6
and that make them likely to engage in repeated predatory acts of sexual violence.
Tex. Health & Safety Code Ann. § 841.001 (West 2017). Accordingly, the legislature
enacted chapter 841 of the health and safety code to provide a mechanism for the civil
commitment of sexually violent predators.
A. Notice to TDCJ and an assessment of the person
Pursuant to chapter 841, within two years of an inmate’s anticipated release
date, TDCJ is required to notify a multidisciplinary team of the anticipated release of
any person serving a sentence for a sexually violent offense. Tex. Health & Safety
Code Ann. § 841.021 (West 2017). The team, composed of individuals from various
state agencies, including a mental health professional, a licensed sex offender
treatment provider, and a licensed peace officer, then conducts a two-part assessment
of the inmate. Id. § 841.022 (West 2017).
First, the team assesses whether the person is a repeat sexually violent offender
and whether he is likely to commit a sexually violent offense after release. Id.
§ 841.022(c)(1). The team then notifies TDCJ of its assessment and, if appropriate,
recommends the assessment of the person for a behavioral abnormality. Id.
§ 841.022(c)(2). If the team recommends a behavioral-abnormality assessment, the
second part of the assessment takes place.
Within 60 days of that recommendation, TDCJ must consult an expert to
ascertain if the person suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence. Id. § 841.023(a) (West 2017). Based
7
upon the expert’s opinion, if TDCJ determines that he does suffer from a behavioral
abnormality, TDCJ must give notice to the attorney representing the state for the
county in which the person was most recently convicted of a sexually violent offense.
Id. § 841.023(b).
B. The civil commitment proceeding
After receiving TDCJ’s notice, the state’s attorney has 90 days to file a petition
for civil commitment. Id. § 841.041(b)(1) (West 2017). Once filed, the trial court is
required to conduct a trial within 270 days. Id. § 841.061(a) (West 2017).
The statute expressly grants the person certain rights during the proceeding,
including “the right to appear at the trial,” the right to a jury trial, and the right to the
effective assistance of counsel. Id. § 841.061(b), (d), § 841.144 (West 2017). And if a
jury trial is conducted, “[t]he number and selection of jurors” are governed by chapter
33 of the code of criminal procedure. Id. § 841.146(a) (West 2017). Chapter 33
includes a provision that a defendant “must be personally present at the trial” except in
trials of misdemeanors that do not risk a jail sentence. Tex. Code Crim. Proc. Ann.
art. 33.03 (West 2006) (emphasis added).
To receive a civil commitment order, the State must show beyond a reasonable
doubt that the person (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. Tex. Health & Safety Code Ann. § 841.003 (West 2017) (defining “sexually
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violent predator”), § 841.062(a) (West 2017) (imposing a “beyond a reasonable doubt”
burden of proof). The jury’s verdict must be unanimous. Id. § 841.062(b).
C. The terms of civil commitment
If the factfinder determines that the person is a sexually violent predator, the
trial court must enter a civil commitment order. Id. § 841.081(a) (West 2017). But
before entering the order, the trial court may impose certain requirements, including
requirements that the person reside where instructed by the Texas Civil Commitment
Office (TCCO), that the person participate in and comply with a sex-offender
treatment program, and that the person submit to tracking and any other appropriate
supervision. Id. § 841.082 (West Supp. 2017). Once the civil commitment order is
entered, it is immediately effective, and treatment and supervision will begin once the
person is released from a secure correctional facility. Id. § 841.081.
When the person is released from TDCJ’s custody, TCCO is responsible for
providing the appropriate and necessary supervision and treatment. Id. § 841.007
(West 2017). TCCO accomplishes this through a tiered program that provides the
opportunity for the person to transition from a total-confinement facility, to less
restrictive housing and supervision, and then to an eventual release from
commitment, depending on the person’s behavior and treatment. Id. § 841.0831
(West 2017). TCCO is required to transfer the person to less restrictive housing and
supervision if doing so is in the best interest of the person and conditions can be
imposed to adequately protect the community. Id. § 841.0834 (West Supp. 2017). But
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TCCO may also transfer the person back to a more restrictive tier if it later
determines that such a transfer is necessary for further treatment and to protect the
community. Id.
D. Review of commitment
Any order of civil commitment must be periodically reviewed. If a civilly-
committed person does not petition for his release sooner, the statute requires a
“biennial” examination. Id. §§ 841.101–.102, .121 (West 2017). As it is instructive in
this case, we will address the biennial review process.
In this process, the trial court judge reviews an updated report prepared by an
expert regarding the committed person’s status. Id. § 841.102. The statute expressly
provides that the committed person is not entitled to be present at the review,
although he is entitled to be represented through counsel. Id. § 841.102(b).
After reviewing the expert’s report, the trial court may either issue an order
concluding the review or set a hearing for the purpose of determining whether the
terms of commitment should be modified or whether probable cause exists to believe
that the person’s behavioral abnormality has changed to the extent that he is no
longer likely to engage in a predatory act of sexual violence. Id. § 841.102. If the trial
court sets a hearing to determine whether probable cause exists, this essentially
becomes a de novo proceeding. Id. § 841.103(c) (West 2017). The committed person
is entitled to “all constitutional protections” he enjoyed in the first proceeding. Id.
Either side can request a jury, and the State must once again meet its burden beyond a
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reasonable doubt. Id. And—most significant to this case—the statute expressly
provides that the committed person is entitled to “be present” at the biennial review
probable cause hearing. Id.
II. Chapter 841 guarantees the right to physically appear at trial.
Because liberty issues with serious constitutional implications are present
during these proceedings, chapter 841 affords many protections similar to criminal
trials. See Kansas v. Hendricks, 521 U.S. 346, 364, 117 S. Ct. 2072, 2083 (1997)
(acknowledging the use of some traditionally criminal procedural safeguards in state
civil commitments). One of the enumerated statutory rights—the meaning of which
is the central issue in this case—is “the right to appear at the trial.” This right is
found in section 841.061, entitled “Trial,” which provides, in pertinent part:
(b) The person or the state is entitled to a jury trial on demand.
A demand for a jury trial must be filed in writing not later than the 10th
day before the date the trial is scheduled to begin.
(c) The person and the state are each entitled to an immediate
examination of the person by an expert. All components of the
examination must be completed not later than the 90th day before the
date the trial begins.
(d) Additional rights of the person at the trial include the
following:
(1) the right to appear at the trial;
(2) except as provided by Subsection (f), the right to present
evidence on the person’s behalf;
(3) the right to cross-examine a witness who testifies against the
person; and
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(4) the right to view and copy all petitions and reports in the
court file.
Tex. Health & Safety Code Ann. § 841.061(b)–(d) (emphasis added). On appeal, the
State argues that subsection (1) entitles the person to appear through counsel but not
to be physically present at trial. Appellant argues that the statute’s guarantee of a
“right to appear at the trial” means that the person is entitled to be physically present.
We agree with Appellant.
Our primary objective in statutory construction is to give effect to the
legislature’s intent. Chesser v. LifeCare Mgmt. Servs., LLC, 356 S.W.3d 613, 619 (Tex.
App.—Fort Worth 2011, pet. denied) (citing State v. Shumake, 199 S.W.3d 279, 284
(Tex. 2006)). First and foremost, we look to the words of the statute. Id. at 619–20
(citing Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006)). We construe the
statute’s words according to their plain and common meaning, unless a contrary
intention is apparent from the context or unless such a construction leads to absurd
results. Id. at 620 (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.
2008)); see also Tex. Gov’t Code Ann. § 311.011(a) (West 2013) (“Words and phrases
shall be read in context and construed according to the rules of grammar and
common usage.”).
To support its position, the State points out that section 841.061(d) uses the
phrase “right to appear” rather than “right to be present.” The State then directs our
attention to section 841.103(c), involving the biennial review process, where the
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statute provides that the person “is entitled to be present” at the probable cause hearing.
See Tex. Health & Safety Code Ann. § 841.103(c) (emphasis added).1 Thus, the State
argues, the plain language of the statute demonstrates that the legislature chose to
afford the person only a right to appear at the initial commitment hearing but to afford
the person the right to be present at any subsequent probable cause hearing.
But such a reading would lead to an absurd result. See Chesser, 356 S.W.3d at
620. It would afford a person greater rights two years after his liberty has been taken
than he would be entitled to when his liberty is first placed at risk.
Appellant points out another absurdity. The State’s interpretation ignores
section 841.146, which directly incorporates code of criminal procedure chapter 33’s
provisions regarding a criminal defendant’s right to be present at voir dire. Tex.
Health & Safety Code Ann. § 841.146 (providing that if a jury trial is conducted in a
sexually-violent-predator civil commitment proceeding, “the number and selection of
jurors” is governed by chapter 33 of the code of criminal procedure). The court of
criminal appeals has interpreted article 33.03 as granting an unwaivable right to be
present during voir dire. Miller v. State, 692 S.W.2d 88, 91–93 (Tex. Crim. App. 1985)
(construing article 33.03’s allowance for the trial court to proceed with trial “after the
jury has been selected” in the event the defendant voluntarily absents himself from
the trial). And we agree with our sister court that the incorporation of chapter 33 into
1
Yet another section expressly provides that at the biennial review, the person
“is not entitled to be present.” See Tex. Health & Safety Code Ann. § 841.102(b).
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chapter 841 means that a person facing civil commitment under chapter 841 is
entitled to be physically present during voir dire. See In re Commitment of Young, 410
S.W.3d 542, 553 (Tex. App.—Beaumont 2013, no pet.). Again, it seems absurd that
the legislature would, on the one hand, provide a person with the right to be
physically present during voir dire, but on the other hand, deny the person the right to
be physically present during the trial itself.
The State points to an additional provision in chapter 841 to contend that
videoconferencing meets the requirements of this statute. Section 841.152(a) provides
that a person’s right “to be present” at the probable cause hearing during the biennial
review can be met through closed-circuit video teleconferencing. Tex. Health &
Safety Code Ann. § 841.152(a) (West Supp. 2017). This argument actually provides
support to the contrary. The legislature, fully aware of videoconferencing technology,
chose to allow it specifically in the context of the biennial review, but did not make a
similar provision in the context of the initial commitment hearing. We decline the
State’s invitation to read an entire provision into the initial civil commitment trial
process that is not present. See In re Ford Motor Co., 442 S.W.3d 265, 287 (Tex. 2014)
(orig. proceeding) (applying the well-established presumption that the legislature
“omitted words it intended to omit”); Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.)
(declining to “add” language to a statute because the legislature had demonstrated
elsewhere that it “clearly knew” how to use such language), cert. denied, 530 U.S. 1244
(2000).
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The State also urges us to apply the general precedent of civil caselaw holding
that an inmate does not have an automatic right to appear personally in court. See, e.g.,
In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Alternatively, the State suggests that
Appellant “appeared” for purposes of the statute by filing an answer or any other
pleadings. Not only does this argument ignore the statutory language that Appellant
had the right to appear at the trial, the state’s argument makes little sense in the context
of this type of civil proceeding. Although civil in nature, a civil commitment
proceeding is a far cry from the traditional civil lawsuit. The State’s argument ignores
the significant difference between a civil commitment proceeding where personal
liberty is at stake and a general civil case which seeks only monetary or other
compensation. See, e.g., Ringer v. Kimball, 274 S.W.3d 865, 868 (Tex. App.—Fort
Worth 2008, no pet.) (holding that inmate did not have a right to appear in person to
prosecute contract claim against his former attorneys); In re R.C.R., 230 S.W.3d 423,
426–27 (Tex. App.—Fort Worth 2007, no pet.) (holding that pro se inmate must be
given alternative means to appear in civil action pertaining to lien and levy against
inmate’s bank account). Under this statutory scheme, there is no method by which
Appellant could have forfeited his right to a trial by failing to appear or file an answer.
In its motion for en banc reconsideration, the State conflates sexually-violent-
predator civil commitments with mental-health civil commitments. Despite the
complete absence of any evidence that Appellant lacked the capacity to attend his
own trial, the State argues that sex offenders should not have the right to be
15
personally present at their initial civil commitment trial because they have not been
treated yet, stating, “These are not necessarily people that can sit through a jury trial
without being physically or mentally harmed,” and that they can be present at a
biennial review hearing because, by then, they have “received years of treatment.” 2
We recognize that mental-health commitments and sexually-violent-predator
commitments are in some ways analogous, but we disagree with the State’s
implication that they are the same.
Mental-health commitments are appropriate where an individual suffers from a
mental illness and, as a result, (1) is likely to cause serious harm to himself or others,
or (2) is suffering from “severe and abnormal mental, emotional, or physical distress”;
is experiencing “substantial mental or physical deterioration” of the individual’s
“ability to function independently, which is exhibited by the proposed patient’s
inability . . . to provide for the proposed patient’s basic needs, including food,
clothing, health, or safety”; and is unable to make a rational and informed decision as
to whether or not to submit to treatment. Tex. Health & Safety Code Ann.
§ 574.034(a) (West Supp. 2017), .035(a) (West 2017). The provision for the mental-
health commitment of an individual suffering from a mental illness that renders him a
risk of serious harm toward himself or others is similar to the commitment of a
2
The State argued that, by the time of a court-ordered biennial review hearing,
“the person has received years of treatment and a professional has found that he no
longer has a behavioral abnormality that endangers society. Now the person is
entitled to be present.”
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sexually violent predator—an individual whose behavioral abnormality renders them
prone to engaging in repeated predatory acts of sexual violence. But the State’s
argument for reconsideration asks us to assume that all accused sexually violent
predators are mentally ill to the extent that they are suffering from “severe and
abnormal mental, emotional, or physical distress,” or are unable to function
independently or make rational and informed decisions regarding their treatment
options. In fact, such an assumption would ignore a key difference between sexually-
violent-predator commitments and mental-health commitments: a person can only be
deemed a sexually violent predator if he has been criminally convicted of at least one
sexually violent offense. Id. § 841.003. To be convicted of a sexually violent offense,
the person was presumed mentally competent and has already participated in a trial
without the benefit of treatment. See Tex. Code Crim. Proc. Ann. art. 46B.003 (West
2018) (providing that a person is incompetent to stand trial if he lacks the ability to
consult with his lawyer or lacks a rational and factual understanding of the
proceedings against him); cf. id. art. 46C.155 (West 2018) (providing that a defendant
found not guilty by reason of insanity is considered to be acquitted). The State’s
argument ignores this important difference between mental-health commitments and
sexually-violent-predator commitments and asks us to presume that the person, while
competent to stand trial in the underlying criminal proceeding, subsequently became
incompetent during his stay in prison.3 We decline to do so.
3
This is not to say that a potential sexually violent predator could not also be
17
In addition, at oral argument in this case, the State asserted that Appellant
waived any right to be physically present at his commitment trial by committing a
crime in the state of Colorado which resulted in his removal to Colorado by TDCJ.
The State did not provide briefing or otherwise provide support for this proposition
and we can find nothing in the law in general or chapter 841 in particular that
supports this theory of waiver. We reject this argument.
For these reasons, we hold that the legislature guaranteed the right to be
physically present at trial to persons facing civil commitments as sexually violent
predators. Because the trial court proceeded to trial without affording Appellant his
right to be physically present, we hold that the trial court erred and we sustain
Appellant’s first issue. 4
III. Appellant’s absence from the trial caused him harm.
Having found error, we must determine whether the error probably caused
rendition of an improper judgment or probably prevented Appellant from properly
deemed mentally ill such that a mental-health commitment is warranted simply
because the sexually violent predator was deemed competent to stand trial and be
convicted of a sexual offense. But there is no support for the State’s proposition that
all sexually violent predators should be so presumed and therefore not entitled to
attend their civil commitment trial.
4
Because we hold that the right to be physically present at trial is statutorily
guaranteed, we do not reach Appellant’s constitutional arguments. See Tex. R. App. P.
47.1. We do however note our concern that proceeding to trial without the person’s
physical presence could present constitutional concerns. Cf. Hendricks, 521 U.S. at
356–60, 117 S. Ct. 2079–81 (evaluating Kansas’s civil commitment statutory scheme
in light of substantive due process concerns).
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presenting the case to this court. Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation,
Inc., 166 S.W.3d 212, 225 (Tex. 2005). Based on the record before us, it seems clear
that Appellant’s absence caused him harm.
At the outset, the trial court highlighted Appellant’s absence, leaving the false
impression that Appellant’s failure to appear by video at trial was simply a matter of
Appellant’s indifference to participation. At the beginning of voir dire, the trial court
instructed the jury as follows:
Mr. Bluitt is not present in court today. Mr. Bluitt is in Colorado. We
had made arrangements for Mr. Bluitt to appear by video conferencing
where he would be able to see you and you would be able to see him and
he would be able to hear what anyone was saying. However, Mr. Bluitt has
chosen not to participate by video conferencing. And that is his choice.
[Emphasis added.]
We first note our concern with the trial court’s statement. After commenting
to the jury that Appellant had “chosen not to participate,” the trial court refused to
allow Appellant’s counsel to explain to the jury the reason that Appellant had made
such a “choice,” i.e., that Appellant insisted upon his right to appear in person.
Because the trial court’s comment did nothing to explain the circumstances
surrounding Appellant’s “choice,” it left open the negative inference that Appellant
did not appear simply because he did not care. Had the jury made such an inference
without the trial court’s assistance is one thing, but it is quite another for the trial
court to comment on Appellant’s exercise of a right in such a way that encourages a
negative impression for the jury. This is why the law does not permit commentary on
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the defendant’s decision not to testify or his exercise of a privilege claim in a criminal
proceeding. See Tex. R. Evid. 513 (prohibiting the court or counsel from commenting
upon a privilege claim); Griffin v. California, 380 U.S. 609, 614–15 (1965) (“What the
jury may infer, given no help from the court, is one thing. What it may infer when the
court solemnizes the silence of the accused into evidence against him is quite
another.”). Here, the trial court could have avoided the potential of creating a false
impression with the jury by saying nothing at all, especially since the jury later heard
evidence of Appellant’s incarceration in Colorado which was the primary stumbling
block in securing his presence at trial.
The residual effect of the trial court’s comment is quite apparent in the record
when reviewing the statements made by the venire panel throughout the remainder of
voir dire regarding Appellant’s absence from trial. Several members of the venire
panel voiced concern—even irritation—that Appellant was not present. Twelve
indicated outright that they would feel so strongly about Appellant’s absence that they
could not be fair to him. For example:
• “I feel that first of all, he is not even here today. You know, I had changed
my plans to be here today. It just has a bad feeling already that I’m pretty
sure that I would not be fair and impartial.”
• “[T]he idea that he is not here even sort of makes me think already that the
guy is guilty.”
• “Yeah, there’s no way [I could be a fair juror] already in my mind.”
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• “Is he incarcerated? Is he hospitalized now?” When the prosecutor asked
how his being incarcerated could affect her view, she admitted, “I would be
biased, let’s just say that, biased towards his guilty [sic].”
• When asked if he could consider Appellant’s testimony offered through a
taped deposition the same as he would live testimony, another venireperson
admitted that he “would view a deposition as a lower form of evidence than
were he here in person” and felt it “would make him less credible.” Two
other veniremembers agreed with him.
• “I’m struggling with such a serious matter, trying not to read into the fact
that the Defendant is not taking the time or able to take the time to
represent - - to be part of it. I - - I just struggle with that a little bit. I’ll be
honest.”
• “If he’s being accused of something, I want to be up front, I want to be
here I want people to see me, you know. And I understand that assuming
you just said he is probably still in prison, but he can be handcuffed and
flown out here, I guess, and that would make a difference for me.”
While some, if not all, of these veniremembers were stricken, these
statements—made within the hearing of the entire venire panel—provide insight into
how the trial court’s instruction and Appellant’s absence were viewed by potential
jurors in the case. When the trial court refused to allow Appellant’s trial counsel to
explain that Appellant wanted to attend but attempts to have him transported back to
Texas for trial had failed, the likelihood for a distinctly false impression to be formed
in the jurors’ minds was further compounded.
Additionally, the State’s sole live witness relied upon and highlighted
Appellant’s demeanor, the very factor that the jury was deprived of evaluating for
themselves. While Appellant’s videotaped deposition was played for the jury,
21
Dr. Darrel Turner, a clinical psychologist, appeared live, and in his testimony
regarding his evaluation of Appellant, Dr. Turner emphasized Appellant’s demeanor
as it appeared to Dr. Turner during his three-hour interview of Appellant and during
the videotaped deposition. Dr. Turner testified that Appellant’s demeanor was
“markedly different” during the interview from his demeanor as reflected in the
recorded deposition. He expanded, saying that when he met with Appellant,
Appellant looked “physically different,” and “much more . . . cocky, much less
subdued.” He described his surprise upon receiving and reviewing the video of the
deposition because “it really did look like a different person . . . that I had spoken
with who was very, very, very sure of himself and very cocky.” He opined that
Appellant appeared in the deposition video to be “making an effort to present himself
as a bit more meek than he was . . . when [Dr. Turner] met with him.” Dr. Turner
noted that this difference was diagnostically significant in determining that Appellant
had antisocial personality disorder.
The State further emphasized Appellant’s demeanor in its closing argument.
Although it initially cautioned the jury, “It doesn’t matter that he’s in Colorado. It’s
completely irrelevant to whether or not he has a behavior abnormality,” the State
went on to argue that the jury was able to observe Appellant’s demeanor in his video
deposition, even noting that that may have been the only thing that was “helpful”
about watching the deposition.
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With such stress placed on his demeanor, Appellant was placed at a severe
disadvantage by being precluded from attending the trial in person and allowing the
jurors to judge his demeanor for themselves. It is axiomatic that a key role of the jury
is to judge the demeanor of the witnesses and the parties before it. See, e.g., Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (noting the “familiar
principle that the jury is the sole judge of the credibility of witnesses”). 5
Having found harmful error, we reverse the trial court’s judgment.
IV. We remand for proceedings consistent with this opinion.
Chapter 841 requires that the civil commitment trial take place within 270 days
after the petition is filed, see Tex. Health & Safety Code Ann. § 841.061(a), but it also
allows the trial court to continue the trial “if the person is not substantially prejudiced
by the continuance and . . . on the request of either party and a showing of good cause
. . . or on the judge’s own motion in the due administration of justice,” id. § 841.063(a)
(West 2017). At the first trial setting, Appellant agreed to waive the 270-day
requirement. We remand these proceedings to the trial court to determine the extent
5
Furthermore, even if Appellant had availed himself of the videoconferencing
option offered, we are not convinced that Appellant would have had adequate ability
to communicate with his counsel during the proceedings. We acknowledge that the
trial court stated that it would allow Appellant to communicate with his counsel by
phone, videoconference, or facsimile, whenever requested. But it is unclear how
Appellant could have both privately and contemporaneously communicated with his
attorney under such circumstances, leaving some doubt as to the efficacy of
videoconferencing in affording Appellant the ability to assist in his own defense.
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of that waiver, see Tex. R. App. P. 43.2(d), or if a continuance should be granted on
any other grounds.
Conclusion
Having determined that Appellant was entitled to appear in person at the civil
commitment trial, we reverse the trial court’s judgment and remand this case to the
trial court for further proceedings consistent with this opinion. See id.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: September 27, 2018
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