In Re the Commitment of Milton Evon Eddington v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00360-CV

IN RE THE COMMITMENT OF MILTON EVON EDDINGTON

From the 272nd District Court
Brazos County, Texas
Trial Court No. 21-003304-CV-272

MEMORANDUM OPINION

In one issue, appellant, Milton Evon Eddington, contends the evidence is legally

and factually insufficient to support the trial court’s finding that he is a repeat sexually

violent offender. Specifically, Eddington contends that the State cannot use a prior

conviction to which he pleaded “nolo contendere” to satisfy the State’s burden of proving

that he has been convicted of two sexually violent offenses under Chapter 841 of the Texas

Health and Safety Code. We affirm.

Background

In 1982, Eddington was first convicted of rape of a child. The trial court sentenced

Eddington to ten years in prison, suspended the sentence, and placed him on probation
for ten years. Thereafter, the State filed a motion to revoke Eddington’s probation,

alleging numerous violations of the terms and conditions of his probation. On September

11, 1984, the court revoked Eddington’s probation and sentenced him to ten years in

prison. In 1997, Eddington pleaded nolo contendere to sexual assault of a child and was

sentenced to thirty-five years in prison.

On December 8, 2021, the State filed an original petition, alleging that Eddington

is a sexually violent predator and requesting that he be committed civilly for treatment

and supervision. In its original petition, the State used Eddington’s 1982 conviction for

rape of a child and his 1997 conviction for sexual assault of a child to assert that he is a

repeat sexually violent offender. See TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1),

(b).

After a trial, the jury found beyond a reasonable doubt that Eddington is a sexually

violent predator. The trial court signed a final judgment in accordance with the jury’s

verdict and a civil-commitment order. This appeal followed.

Standard of Review

Proceedings under the Sexually Violent Predator Act (“SVPA”) are civil in nature,

but because the State’s burden of proof at trial is the same as in a criminal case, we review

verdicts in cases brought under the SVPA using the standard of review applied in

criminal cases. In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston

[1st Dist.] 2015, pet. denied). When reviewing a legal-sufficiency challenge to the

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evidence in a sexually violent-predator case, we assess all the evidence in the light most

favorable to the verdict to determine whether a rational jury could find, beyond a

reasonable doubt, each of the elements that the State must prove to support a judgment

of civil commitment. In re Commitment of H.L.T., 549 S.W.3d 656, 661 (Tex. App.—Waco

2017, pet. denied) (citing In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—

Beaumont 2002, pet. denied)).

The Texas Supreme Court has articulated the proper standard for factual-

sufficiency review of a finding that a person is a sexually violent predator as follows:

The appellate standard governing factual-sufficiency review of a finding
that a person is a sexually violent predator is whether, in light of the entire
record, the disputed evidence a reasonable factfinder could not have
credited in favor of the verdict, along with undisputed facts contrary to the
verdict, is so significant that the factfinder could not have found beyond a
reasonable doubt that the statutory elements were met.

In re Commitment of Stoddard, 619 S.W.3d 665, 677 (Tex. 2020).

Applicable Law

As defined by the Legislature, a sexually violent predator is a person who “(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 § 841.003(a). “[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). As relevant here, rape of a child is the equivalent

of sexual assault or aggravated sexual assault. See Wisdom v. State, 708 S.W.2d 840, 843
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(Tex. Crim. App. 1986) (“The Legislature incorporated the old laws (Rape, Aggravated

Rape, Sexual Abuse, Aggravated Sexual Abuse, Rape of a Child, Sexual Abuse of a Child)

into two new laws (Sexual Assault and Aggravated Sexual Assault; V.T.C.A., Penal Code

Secs. 22.011 and 22.021).”); see also Reyes v. State, 119 S.W.3d 844, 847 (Tex. App.—San

Antonio 2003, no pet.) (“The now-repealed Penal Code provisions, including the offense

of rape of a child, are undeniably the statutory predecessors of the modern-day offenses

of sexual assault and aggravated sexual assault.”) (citation omitted). Moreover, sexual

assault and aggravated sexual assault are both sexually violent offenses under the SVPA.

See id. § 841.002(8)(A); see also TEX. PENAL CODE ANN. §§ 22.011, 22.021

Discussion

In his sole issue on appeal, Eddington contends that the evidence is legally and

factually insufficient to support the element that he is a “repeat sexually violent

predator.” Specifically, Eddington argues that the State cannot use his 1997 conviction

for sexual assault of a child because article 27.02(5) of the Texas Code of Criminal

Procedure prohibits the use of a conviction based on a plea of nolo contendere in a civil

suit. See TEX. CODE CRIM. PROC. ANN. art. 27.02(5).

Article 27.02(5) of the Texas Code of Criminal Procedure provides that a nolo

contendere plea has the same effect as a plea of guilty, “except that such plea may not be

used against the defendant as an admission in any civil suit based upon or growing out

of the act upon which the criminal prosecution is based.” Id. However, the Texas Code

In re The Commitment of Eddington Page 4
of Criminal Procedure does not generally apply to a civil-commitment case. See, e.g., In

re Commitment of McCafferty, No. 02-20-00073-CV, 2021 Tex. App. LEXIS 5071, at *18 (Tex.

App.—Fort Worth June 24, 2021, no pet.) (mem. op.) (citing In re Commitment of Price, No.

06-16-00077-CV, 2017 Tex. App. LEXIS 4837, at *5 (Tex. App.—Texarkana May 26, 2017,

pet. denied) (mem. op.)). Rather, under section 841.146 of the Texas Health and Safety

Code, “a civil commitment proceeding is subject to the rules of procedure and appeal for

civil cases.” TEX. HEALTH & SAFETY CODE ANN. § 841.146(a)-(b). Therefore, like our

coordinate appellate courts, we too hold that article 27.05(2) of the Texas Code of

Criminal Procedure does not apply to civil-commitment cases. 1

In the alternative, Eddington argues that Texas Rule of Evidence 410(a)(2)

prohibited the State from using his 1997 conviction to satisfy the element that he is a

“repeat sexually violent predator” because a plea of nolo contendere “is not admissible”

in a “civil case . . . against the defendant who made the plea.” See TEX. R. EVID. 410(a)(2).

This argument also lacks merit.

First, Eddington’s argument regarding Rule 410(a)(2) is that his 1997 conviction

should not have been admitted into evidence. In other words, this argument challenges

the admissibility of the evidence. The record reflects that Eddington did not object in the

1 We also note that article 27.05(2) of the Texas Code of Criminal Procedure states that a plea of
nolo contendere “may not be used against the defendant as an admission in any civil suit based upon or
growing out of the act upon which the criminal prosecution is based.” TEX. CODE CRIM. PROC. ANN. art.
27.02(5) (emphasis added). In this case, the State did not attempt to use Eddington’s 1997 conviction as an
admission against him. Instead, the State only introduced the conviction to show that Eddington has been
convicted of a sexual offense.

In re The Commitment of Eddington Page 5
trial court to the admission of his 1997 conviction under Rule 410(a)(2). Therefore,

Eddington did not preserve his admissibility argument under Rule 410(a)(2). See TEX. R.

APP. P. 33.1(a).

Second, even if Eddington had preserved his Rule 410(a)(2) argument for appeal,

it would fail. This is because “Rule 410 is not intended to prevent the State from

proceeding under a statute to impose civil consequences that result from criminal

convictions.” In re Young, 410 S.W.3d 542, 552 (Tex. App.—Beaumont 2013, orig.

proceeding) (addressing a discovery dispute in a proceeding under the SVPA where

appellant objected to the State’s requests for admission regarding whether he has

charged, convicted, and sentenced in three separate criminal cases where appellant had

entered pleas of nolo contendere) (citing Turton v. State Bar of Tex., 775 S.W.2d 712, 715

(Tex. App.—San Antonio 1989, writ denied) (concluding that Rule 410 did not preclude

admission of a nolo contendere plea in an action brought under the State Bar Act to

suspend an attorney for conviction of a serious crime)). Therefore, based on the

foregoing, the State was entitled to rely on Eddington’s 1997 conviction, regardless of his

plea of nolo contendere, in this case brought under the SVPA.

As mentioned earlier, the State presented evidence of two sexually violent

offenses—Eddington’s 1982 conviction for rape of a child and his 1997 conviction for

sexual assault of a child. Eddington does not challenge the second element—whether he

suffers from a behavioral abnormality. Viewing the evidence in the light most favorable

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to the verdict, we hold that a rational jury could have found, beyond a reasonable doubt,

that Eddington is a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§

841.003(a), 841.062; In re Commitment of H.L.T., 549 S.W.3d at 661; In re Commitment of

Mullens, 92 S.W.3d at 885. Furthermore, in light of the entire record, we conclude that the

evidence is also factually sufficient to support the jury’s verdict. See TEX. HEALTH &

SAFETY CODE ANN. §§ 841.003(a), 841.062; In re Commitment of Stoddard, 619 S.W.3d at 677.

We overrule Eddington’s sole issue on appeal.

MATT JOHNSON
Justice

Before Chief Justice Gray
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs in the judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed May 3, 2023
[CV06]

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