April 2016 SDR - Voice for the Defense Vol. 45, No. 3

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Saturday, April 9th, 2016

Voice for the Defense Volume 45, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Florida’s death-sentencing scheme, which did not require a jury to determine whether a capital defendant was mentally retarded or unanimously sentence a defendant to death, violated the Sixth Amendment’s jury trial guarantee. Hurst v. Florida, 136 S. Ct. 616 (2016).

        A jury convicted D of first-degree murder for killing a co-worker and recommended the death penalty. Under Florida law, the jury rendered an “advisory sentence.” Notwithstanding that recommendation, the court had to independently find and weigh the aggravating and mitigating circumstances before entering a sentence of life or death. The court sentenced D to death. On appeal, D was granted a new sentencing trial because the Supreme Court of Florida found that his counsel should have investigated and presented evidence of his mental capacity. At his new sentencing trial, D was prevented from presenting mental retardation evidence as an absolute bar to the imposition of the death penalty, though he was allowed to present it as mitigating evidence. At resentencing, the jury again recommended death, and the judge again found the facts necessary to sentence D to death. The Florida Supreme Court affirmed. The U.S. Supreme Court reversed.

        Florida’s death-sentencing scheme violated U.S. Const. amend. VI in light of Ring v. Arizona, 536 U.S. 584 (2002), which deemed unconstitutional a capital-sentencing scheme that permitted a judge rather than a jury to find the facts necessary to sentence a defendant to death. The Ring Court held that the Sixth Amendment required that the jury determine the presence of aggravating factors, which Arizona’s death-sentencing scheme viewed as essentially elements of a larger offense. The Supreme Court of Florida had previously held Ring did not apply to Florida’s death penalty sentencing scheme generally and specifically did not require that a jury’s recommendation of the death penalty be unanimous or that a jury determine the factual issue of a defendant’s potential mental retardation. But the Sixth Amendment requires a jury, not a judge, to find each element necessary to impose the death sentence. Although the Florida sentencing scheme required that the jury recommend a death sentence in order to impose the death penalty, the judge was only required to take the jury rec­om­men­da­tion under consideration. Because the Court held in Ring that the Sixth Amendment required that a jury make all the critical findings necessary to impose the death penalty, the Florida sentencing scheme violated the Sixth Amendment in the same way Arizona did in Ring.

Fifth Circuit

Although illegal-reentry D’s prior conviction under S.C. Code § 44-53-370(a)(1) was not categorically a “drug trafficking offense” for USSG § 2L1.2 purposes, application of the modified categorical approach to the record of conviction in that prior case—particularly, a document called the “sentencing sheet”—made clear that D was convicted of a drug trafficking offense. United States v. Rodriguez-Negrete, 772 F.3d 221 (5th Cir. 2014).

Where D had his supervised release revoked on three counts of conviction and received six months of custody on each count (consecutive to one another) to be followed by 24 months of reimposed supervised release on each count (concurrent to one another), the district court did not run afoul of the 18 U.S.C. § 3583(h) limits on reimposition of supervised release. United States v. Oswalt, 771 F.3d 849 (5th Cir. 2014).

        Contrary to D’s argument, the court was not required to subtract the full 18 months of imprisonment from the maximum 36-month supervised-release term originally available on each count of conviction. The formula in § 3583(h) is count-specific and does not contemplate subtracting the post-revocation terms of imprisonment imposed on all counts; because D could have received up to 30 months’ reimposed supervised release on each count (the original 36-month maximum less the six months’ imprisonment imposed for that count), the 24-month reimposed supervised-release term did not exceed the statutory maximum.

Although a Cal. Health & Safety Code § 11378 violation is not categorically a “drug trafficking offense” for USSG § 2L1.2, the district court did not plainly err in categorizing D’s § 11378 conviction as such given the lack of indication that D might have been convicted in any way other than that in the complaint (which charged possession of meth for sale, a qualifying offense). United States v. Castellon-Aragon, 772 F.3d 1023 (5th Cir. 2014).

Where a defendant who pleaded guilty signs a statement indicating that he wishes to appeal only his sentence and the defendant’s appellate counsel, in reliance on that statement, files an Anders brief addressing only issues related to sentencing, the defendant may not raise issues related to his guilty plea and conviction in his pro se response to the brief. United States v. Polanco-Ozorto, 772 F.3d 1053 (5th Cir. 2014).

        Where a defendant provides sufficient indication (consistent with United States v. Garcia, 483 F.3d 289 (5th Cir. 2007)) that he intends to challenge only his sentence, the defendant may not revoke that decision after counsel has filed an Anders brief pretermitting any discussion of D’s guilty plea. The Fifth Circuit dismissed D’s appeal.

In sentencing D for a drug offense, district court did not violate due process or Fed. R. Crim. P. 32(i)(3)(B) in its ruling on D’s objection to a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a firearm; a district court may fulfill the obligation to rule on an objection by adopting the presentence report. United States v. King, 773 F.3d 48 (5th Cir. 2014).

        The district court said it was overruling the objection for the reasons stated in the addendum to the presentence report. On the merits, the district court did not clearly err (the applicable standard, United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010), notwithstanding) in applying the § 2D1.1(b)(1) enhancement; it was plausible in light of the record that the government proved by a preponderance of the evidence that a spatial relationship existed between the handgun, D, and the offense of conspiracy with intent to distribute heroin. It was also plausible that D failed to show that it was “clearly improbable” that the firearm was connected to his offense of conviction.

        (2) Joining four other circuits, the Fifth Circuit held that there is no constitutional error under Alleyne v. United States, 133 S. Ct. 2151 (2013), in permitting a judge to find the facts that render the “safety valve” exception to mandatory-minimum sentences inapplicable. See 18 U.S.C. § 3553(f). The “safety valve” does not increase the mandatory minimum; it removes it.

D waived his arguments that he was prosecuted outside the applicable statute of limitations by failing to raise his statute-of-limitations defense until a post-conviction motion for judgment of acquittal. United States v. Lewis, 774 F.3d 837 (5th Cir. 2014).

        A statute-of-limitations defense is an affirmative defense that must be affirmatively asserted at trial in order to preserve it for appeal. By requiring a defendant to raise and develop his statute-of-limitations defense at trial, the prosecution will have a chance to rebut the defendant’s arguments with evidence of its own.

District court did not abuse its discretion in denying tax-evasion D Criminal Justice Act funding under 18 U.S.C. § 3006A(e) for a neuropsychological exam to determine whether D suffered from a mental impairment that contributed to a good-faith belief that the tax returns he filed were truthful and lawful. United States v. Boyd, 773 F.3d 637 (5th Cir. 2014).

        There was no evidence of any concerns about D’s cognitive abilities during the time period in question.

18 U.S.C. § 641 authorizes a felony penalty for the first theft committed when it involves less than $1,000 and would, on its own, result only in a misdemeanor penalty but the total involved exceeds $1,000 aggregated with one or more subsequent theft(s). United States v. Lagrone, 773 F.3d 673 (5th Cir. 2014).

        The Fifth Circuit panel reversed course from an earlier opinion in this case and held that § 641 plainly declares that all thefts are already felonies, contrary to D’s contention that allowing felony penalties on all counts of theft when an initial theft does not exceed $1,000 makes the initial theft retroactively more serious. The defendant may receive the benefit of § 641’s lenity provision and be sentenced under a misdemeanor penalty scheme only if the aggregate value of the thefts does not exceed $1,000.

Court of Criminal Appeals

CCA vacated the order granting Chapter 64 testing; CCA found no reason to revisit its previous holdings denying testing because the record did not contain changes in law, facts, or circumstances. State v. Swearingen, 478 S.W.3d 716 (Tex.Crim.App. 2015).

        The trial judge granted D’s request for post-conviction DNA testing of several pieces of evidence under Tex. Code Crim. Proc. art. 64. The judge also conditionally granted D’s motion to release certain evidence for preliminary testing to determine whether the evidence contained biological material. CCA reversed and remanded, and dismissed the State’s appeal challenging the order conditionally granting the release of evidence. The State could not contest the conditional order’s validity by way of appeal, as it rested on grounds outside the bounds of Chapter 64.

        “Most recently, in 2014, we unanimously reversed this judge’s granting Swearingen’s prior Chapter 64 motion. . . . Swearingen was not entitled to DNA testing of the fingernail scrapings because we were ‘not persuaded that results showing the presence of another DNA donor in the fingernail scrapings would overcome the “mountain of evidence” of [D’s] guilt.’ And in our 2010 unanimous opinion, we noted that the evidence of Swearingen’s guilt was ‘overwhelming’ and that ‘even if we were to grant [his] request to test all of the items proffered and those results were exculpatory, [he] cannot show by a preponderance of the evidence, or that there is a 51% chance, that he would not have been convicted.’ We noted that the trial judge made ‘supported-by-the-record findings of fact that again, underscore the substantial evidence of guilt.’ Because we find that the record does not contain any change in the law, facts, or circumstances since our 2014 opinion and the granting of Swearingen’s latest Chapter 64 motion, we see no reason to revisit our previous holdings on the matter. We hold that the judge erred in granting the DNA testing[.]. . . The judge, however, found our 2010 holdings inapplicable in that ‘Swearingen’s current request includes additional probative evidence such as the rape kit, hair evidence and cigarette butts.’ Including cigarette butts as a distinguishing factor is clearly wrong. Swearingen sought testing of the cigarette butts in 2010 and 2014. To the extent the rape kit and hair evidence present entirely new requests, they do not prove that this current request should be resolved any differently than in our 2010 and 2014 conclusions. Swearingen is still unable to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. . . . We faulted Swearingen in 2014 for attempting to rely on the ramifications of hypothetical matches from evidence that eviscerate Chapter 64’s requirements. And it is even more attenuated to assume hypothetical confessions and false denials of contact stemming from hypothetical DNA matches.”

When Tex. Penal Code § 33.021(b) was declared unconstitutional, Ds were not entitled to habeas relief on an actual innocence theory because they alleged no new evidence to show they did not commit the crimes and did not contest having engaged in the conduct for which they were convicted; Ds were entitled to relief because the criminal sanctions affixed to their conduct had been removed. Ex parte Fournier, 473 S.W.3d 789 (Tex.Crim.App. 2015).

        Both defendants had pled guilty to online solicitation of a minor under Texas Penal Code § 33.021(b) (2012). They filed these habeas applications after Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013), established that § 33.021(b) was unconstitutionally broad; although the State had a compelling interest in protecting children from sexual predators, § 33.021(b) was not narrowly drawn “because there are narrower means of achiev­ing the State interests advanced here, at least some of which are already covered by other statutes.” Ds sought relief under Lo and under the theory that because the statute was unconstitutional, they were “actually innocent.”

        There was no disagreement among the parties that Applicants were entitled to have their judgments set aside under Lo. CCA agreed, while deciding the previously undecided issue of whether Lo entitled Applicants to relief under an “actual innocence” theory. CCA concluded Ds did not present true actual innocence claims; however, consistent with precedents granting relief under an unconstitutional statute theory, CCA set aside Ds’ judgments.

There was insufficient evidence regarding the crime D’s boyfriend was charged with for it to serve as the felony underlying D’s hindering apprehension conviction; there was no evidence that the boyfriend or D found out about the felony indictment prior to the boyfriend’s ar­rest or that the officers stated what they were arresting him for. Nowlin v. State, 473 S.W.3d 312 (Tex.Crim.App. 2015).

        D was convicted of hindering apprehension after encouraging her boyfriend to run from U.S. Marshals who were arresting him. Because the State alleged D knew her boyfriend was charged with a felony, her offense was elevated to a third-degree felony. COA affirmed. CCA granted D’s petition to determine whether the evidence was legally sufficient to prove she knew her boyfriend was charged with a felony.

        CCA reformed D’s conviction. The boyfriend could not have known he was under indictment for felon in possession of a firearm; it was impossible for him to have told D about the indictment or what offense it charged him with. “The evidence in this case was insufficient to support Appellant’s felony conviction. However, the State is correct in asserting that the element of knowledge that [her boyfriend] was being arrested for a felony offense is an aggravating factor and, therefore, the trial court necessarily found the essential elements of misdemeanor hindering apprehension. Therefore, we reform the judgment to reflect a conviction of misdemeanor hindering apprehension and remand the case to the trial court to conduct a new punishment hearing.”

COA did not view the evidence in the light most favorable to D’s forgery conviction; the evidence was suf­fi­cient for the jury to reasonably infer D passed the check with intent to defraud or harm another. Ramsey v. State, 473 S.W.3d 805 (Tex.Crim.App. 2015).

        D was found guilty of forgery. COA reversed, holding that the evidence was insufficient because there was no proof D had the intent to defraud or harm another. The State filed a petition for review, which CCA granted, arguing that COA did not ex­am­ine the totality of the evidence or reasonable inferences there­from. CCA agreed and reinstated D’s conviction.

        Although D argued there was insufficient evidence for the jury to conclude that neither owner signed the check or that D had sufficient access to steal the check based on conflicting evidence, the appellate court had to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. The jury could have resolved the conflicting evidence against D and reasonably inferred, based on the evidence, that he stole the check, forged it, and passed it at the liquor store with the intent to defraud and harm the owner. “The court of appeals reached the wrong result because it incorrectly applied the [Jackson v. Virginia, 443 U.S. 307 (1979)] legal sufficiency standard, which requires that the combined and cumulative force of all the evidence be viewed in the light most favorable to the conviction. After properly applying the Jackson standard, we find the evidence sufficient[.]”

COA erred in reversing D’s conviction and remanding for a new trial; the proper remedy would have been to abate the appeal and remand to the trial court, but CCA ultimately held that any error in the competency proceedings was harmless. Owens v. State, 473 S.W.3d 812 (Tex.Crim.App. 2015).

        D was charged with felony murder after he led police on a high-speed chase in which he hit two vehicles and killed one driver. He filed a pretrial motion arguing that he was incompetent to stand trial because, due to traumatic brain injury caused by the crash, he suffered from amnesia and was unable to remember anything about the wreck. After a mental-health assessment, the defense expert concluded that, even if D did suffer from amnesia (which the expert could not rule out), such condition did not render him incompetent to stand trial. At the competency hearing, D called the expert to the stand to testify about his conclusions; but, before the expert could testify regarding the substance of his report, D objected to his own witness and argued that the expert was not qualified to be appointed or testify as a competency expert. D’s complaint was founded on the belief that the witness did not meet a necessary continuing-education requirement. The judge allowed D to argue that the expert was not statutorily allowed to be appointed but otherwise overruled his objection and allowed the expert to testify. D was found competent and later convicted of felony murder. COA reversed and remanded for a new trial, holding that the court erred because the expert did not meet the statutory qualifications for a competency expert and that Appellant was harmed by the error. CCA reversed COA and remanded.

        COA would not have known whether D’s felony-murder trial would have been rendered invalid because it did not first abate the appeal and remand the case for a retrospective competency hearing. Regardless, D’s argument that he should not have been charged with murder, but a lesser charge, was compelling evidence that he understood the seriousness of the charge he was facing; therefore, he had a rational and factual understanding of the proceedings. Although D claimed not to remember the facts of the offense, he could have nevertheless relied on the circumstances of the offense to develop a mens rea defense. “The court of appeals erred when it reversed Appellant’s conviction and remanded the case for a new trial due to a perceived fatal flaw in the competency proceedings. Further, we hold that any error in allowing Allen to testify because he was not qualified as a competency expert under Chapter 46B of the Code of Criminal Procedure was harmless. We reverse the judgment of the court of appeals and remand this cause to that court to address Appellant’s third point of error.”

D was not entitled to relief; the trial court was called upon to make a judicial decision on the scope of the Fifth Amendment right against self-incrimination when it allowed the State to call D to testify at the evidentiary hearing on his habeas application, as the law was unsettled as to whether D faced risk of further criminal liability given his claim of ineffective assistance, and the court placed strong limits on the scope of questioning and granted immunity that prevented the State from using any information gained from the hearing in a subsequent proceeding. In re Medina, 475 S.W.3d 291 (Tex.Crim.App. 2015).

        “Under the plain text of the Fifth Amendment to the United States Constitution, a defendant has a clear right to prevent the State from forcing him to testify at his trial or at sentencing. . . . Is the State, in a post-conviction evidentiary hearing on a writ of habeas corpus, clearly prohibited from calling the writ applicant to testify—under a grant of both use and derivative-use immunity—about whether he was aware of and agreed to trial counsel’s strategy at the punishment stage of his capital-murder trial? If this Court were considering the question in the first instance, the answer might very well be ‘no.’ But because this case comes before us as a writ of prohibition, we are not asked to decide the precise scope of the Fifth Amendment. . . . [W]e are asked to decide whether the trial court made a judicial decision or a ministerial one. More specifically, we must determine whether the law on this issue is so clear that the trial court had no choice but to prohibit the State from calling relator to the stand. Examining the relevant case law regarding the scope of the Fifth Amendment from the United States Supreme Court and this Court reveals arguments to support the positions of both relator and the State. Consequently, we cannot say that the trial court had a ministerial duty to prohibit the State from calling relator to testify. . . . [I]n the context of the specific facts presented here, relator is not clearly entitled to the relief he seeks. . . . [A]pplicability of the Fifth Amendment turns less upon the type of proceeding and more upon the potential for exposure to criminal liability.”

Although CCA inferred that the laboratory report in D’s case was falsified, it found its falsity was not material to his decision to plead guilty because he was facing three additional drug cases. Ex parte Barnaby, 475 S.W.3d 316 (Tex.Crim.App. 2015).

        D plead guilty in a package deal to four separate offenses of possession of a controlled substance with intent to deliver and was sentenced to four concurrent 50-year sentences. In his habeas application, D challenged only the voluntariness of his plea to one of the offenses; in that case, the forensic technician assigned to analyze the seized substance was known to have fal­si­fied test results. CCA remanded to the trial court so the par­ties could present argument on what standard of review is appropriate for examining materiality.

        CCA denied relief and held that materiality of false evidence in the context of a guilty plea should be examined under the standard used to assess materiality of counsel’s deficient performance in the context of a guilty plea: if applicant had known that the evidence was false (i.e., “but for” the false evidence), he would not have plead guilty but would have insisted on going to trial. Although CCA inferred that the laboratory report in D’s case was falsified, CCA found its falsity was not material to his decision to plead guilty. D faced consecutive sentences had he been convicted at trial, and as part of the plea bargain the State waived the drug-free-zone finding on the other three cases, which markedly affected D’s parole eligibility.

Without any showing that the injured child was often underfoot of D or that D knew the child would likely be under his feet, the evidence was insufficient to support D’s conviction for negligently causing injury to a child. McKay v. State, 474 S.W.3d 266 (Tex.Crim.App. 2015).

        D was convicted of injury to a child with the culpable mental state of criminal negligence after spilling hot water on a two-year-old’s back. D appealed, arguing there was insufficient evidence. COA affirmed the trial court. CCA reversed and vacated Appellant’s conviction. There was insufficient evidence of criminal negligence to support D’s conviction under Tex. Penal Code § 22.04(a)(3) after he spilled hot water on the two-year-old child while he was in the kitchen, because there was no evidence that D failed to perceive a substantial and un­justifiable risk to the child.

When habeas applicant advanced multiple issues that would entitle him to relief, the trial court could limit its grant of relief to only one of the issues, as long as the court did not neglect an issue that would result in greater relief than the one addressed. Ex parte Reyes, 474 S.W.3d 677 (Tex.Crim.App. 2015).

        D raised five grounds in a habeas application attacking a judgment that imposed community supervision. Evidence supporting all these grounds was submitted in either affidavit form or through witnesses at a live hearing. The trial court granted relief on the first ground and did not address the remaining grounds. Holding that the trial court erred in granting relief on the first ground, COA reversed and rendered judgment reinstating the guilty plea. CCA concluded that COA should have remanded to the trial court to resolve D’s remaining claims; CCA reversed COA and remanded to the trial court.

        D did not forfeit his claims by failing to pursue them when COA abated the case on the State’s motion, and the trial court did not err by failing to address claims that were outside the State’s motion. “Because the trial court did not resolve all of appellee’s claims, and those claims were not waived, the court of appeals erred in rendering judgment. The appellate court should have remanded the case to the trial court for further proceedings. Whether those further proceedings involve merely additional fact findings or also involve further development of the record is a determination to be made by the trial court, at least in the first instance.”

As all parties agreed, counsel deficiently misadvised D’s plea; CCA set aside D’s conviction and remanded. Ex parte Sanchez, 475 S.W.3d 287 (Tex.Crim.App. 2015).

        D plead “no contest” to aggravated assault and was sentenced to ten years’ imprisonment. He did not appeal. In this habeas application, D contended, among other things, that his trial counsel rendered ineffective assistance because counsel erroneously advised D that he could receive community su­per­vision from the court if he pleaded “no contest” to this of­fense. D alleged that the trial court and prosecutor also believed D was eligible for community supervision from the trial court. D alleged that had he known he could not receive community supervision from the court for this offense because of the deadly weapon allegation, he would not have pleaded “no contest” but would have taken the case to trial by jury, where he would have been eligible for community supervision.

        D’s trial counsel filed an affidavit, in which he conceded he incorrectly advised D that he would be eligible for community supervision if he pleaded “no contest.” Counsel also stated that he did not advise D regarding the availability of de­ferred adjudication and did not file a motion requesting deferred adjudication community supervision. The trial court determined that counsel’s performance was deficient in that counsel advised D incorrectly that he would be eligible for com­munity supervision, and that such deficient performance prejudiced D. The trial court also found that the prosecutor and the trial court were under the mistaken impression that D was eligible for community supervision from the court, and that D was never advised that he was ineligible for community supervision because of the nature of the offense. The trial court concluded that D’s plea was not knowingly and voluntarily entered.

        CCA granted relief and set aside the judgment, and D was remanded to the sheriff’s custody to answer the charges in the indictment; the trial court was to issue any necessary bench warrant.

Court of Appeals

It could not be concluded that counsel performed deficiently at the punishment hearing in failing to object to the State’s closing argument referencing a letter D wrote to the trial court; the reviewing court could conceive potential reasonable trial strategies counsel could have been pursuing, given that D had been able to present his argument without subjecting himself to the perils of cross-examination by asking the trial court to read the letter. Ayers v. State, No. 06-15-00156-CR (Tex.App.—Texarkana Jan 14, 2016).

        D plead guilty to indecency with a child by sexual contact. Under D’s plea agreement, the trial court deferred a finding of guilt to consider the possibility of community supervision. During a subsequent hearing in which the court considered whether to place D on deferred adjudication community su­per­vi­sion, D and the State each requested the trial court review a letter D had written to the trial court and which had been filed with the clerk. The trial court complied with this request and, after the hearing on punishment, D was convicted of indecency with a child by sexual contact and was sentenced to 18 years’ imprisonment.

        D appealed here that because the letter was not formally admitted into evidence at the punishment hearing, the State argued outside of the evidence in referencing the letter during closing argument. D also argued that his counsel rendered in­effective assistance in failing to object to the State’s closing argument. COA found that D failed to preserve his first issue on appeal. COA further found that D “cannot demonstrate that his counsel rendered ineffective assistance.” COA affirmed the trial court.

The amendment to the Sexually Violent Predator statute applied to those previously convicted for failing to complete sex offender treatment, even those convictions not yet final, pardoning these individuals; therefore, the amendment was ineffective because it usurped the gov­ernor’s clemency power granted by Tex. Const. art. IV, § 11(b), in violation of separation of powers, Tex. Const. art. II, § 1. VanDyke v. State, No. 09-14-00137-CR (Tex.App.—Beaumont Feb 10, 2016).

        D plead guilty to violating the terms of his civil commitment, and the trial court sentenced him to 25 years in prison. D filed an appellate brief presenting 13 issues challenging the constitutionality of the Sexually Violent Predator statute. After D filed his brief, the Texas Legislature amended Tex. Health & Safety Code § 841.085 of the SVP statute; D filed a supplemental brief, in which he contended the Legislature decriminalized the conduct for which he was convicted. COA affirmed the trial court.

        “In this case, the 2015 amendment to section 841.085 applies to those previously convicted of violating their civil commitment requirements by failing to complete sex offender treatment, even though those convictions are pending appeal and not yet final. . . . The Legislature has essentially pardoned these individuals by applying the amendment to pending convictions. Thus, we conclude that the Legislature has usurped the Governor’s clemency power by applying amended section 841.085 to pending criminal proceedings. . . . Our holding does not impact the remainder of amended section 841.085. . . . Because the application of amended section 841.085 to pending convictions is unconstitutional, we overrule VanDyke’s supplemental issue.”

        Furthermore, the trial court was entitled to customize its civil commitment order, and its use of “exactingly” did not in­crease D’s risk of prosecution. The commitment order required D to “exactingly participate in and comply with the specific course of treatment provided by the Council and [to] comply with all written requirements of the Council and case manager[.]” Under the version of the statute applicable to D, the trial court could impose a condition requiring D’s “participation in and compliance with a specific course of treatment provided by the office and compliance with all written re­quirements imposed by the case manager or otherwise by the office[.]” According to D, the addition of the word “exactingly” amplified the risk that he would be unfairly charged based on the subjective feelings of employees of the Office of Violent Sex Offender Management. The Texas Supreme Court has held that the SVP statute “gives the trial court leeway to fashion restrictions tailored to the particular SVP facing commitment.”