In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00663-CV
____________________
IN RE COMMITMENT OF MICHAEL ELBERT YOUNG
_______________________________________________________________ _
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-05-05229 CV
_______________________________________________________________ _
OPINION
The State of Texas filed a petition seeking the civil commitment of Michael
Elbert Young as a sexually violent predator. See Tex. Health & Safety Code Ann.
§§ 841.001-.151 (West 2010 & Supp. 2012) (SVP statute). A jury found that
Young is a sexually violent predator, and the trial court rendered a final judgment
and an order of civil commitment. In his appeal, Young challenges rulings by the
trial court regarding discovery, trial procedures, and expert testimony. Finding no
reversible error, we affirm the trial court’s judgment.
1
Background
In 1993, Young was convicted of two sexually violent offenses, attempted
aggravated sexual assault and sexual assault of a child. Before Young completed
serving his sentence, the State filed a petition seeking Young’s civil commitment
as a sexually violent predator. The State’s experts presented to the jury their
diagnoses that Young suffered from a paraphilia, and they testified that Young
suffers from a behavioral abnormality that makes it likely he will engage in another
predatory act of sexual violence. The jury found that Young is a sexually violent
predator. Young timely perfected his appeal from the jury’s verdict.
Discovery Rulings
Young’s Requests for Admission to the State
In issue one, Young contends the trial court committed reversible error by
granting the State’s motion for protective order, shielding the State from answering
Young’s fifty-seven requests for admissions. After being served with Young’s
requests, the State filed a motion for protective order. The State’s motion for
protective order asserts that twelve of Young’s requests were not relevant (requests
one through nine, twelve, nineteen, and twenty-nine), that twelve of the requests
sought information protected as work-product (requests nine, ten, nineteen, twenty,
and twenty-two through twenty-nine), and that thirty-six of the requests, (requests
2
eleven, thirteen through eighteen, twenty-one, and thirty through fifty-seven)
would be “best answered” by the State’s experts who could be deposed. We review
the trial court’s rulings on the requests for abuse of discretion. In re Commitment of
Perez, No. 09-12-00132-CV, 2013 WL 772842, at *5 (Tex. App.—Beaumont Feb.
28, 2013, pet. denied) (mem. op.).
Generally, requests for admission are an authorized method that parties may
use in discovery. See Tex. R. Civ. P. 192.1. Under the rules, a party may request
“that the other party admit the truth of any matter within the scope of discovery,
including statements of opinion or of fact or of the application of law to fact[.]”
Tex. R. Civ. P. 198.1. A matter admitted by a party is conclusively established as
to the party who made the admission, unless the trial court permits the party to
amend or withdraw the response. See Tex. R. Civ. P. 198.3. Admissions that are
made in the course of discovery are intended to be used by the parties to simplify
trials, but they should not be used to require an opposing party to admit claims and
concede defenses that a party knows are being disputed. Marino v. King, 355
S.W.3d 629, 632 (Tex. 2011). Through requests, a party may ask another party to
admit or deny issues of fact relevant to the pending action or to apply the law to
relevant issues of fact. Maswoswe v. Nelson, 327 S.W.3d 889, 896-97 (Tex.
App.—Beaumont 2010, no pet.).
3
First, we address the State’s argument that it should not be required to
answer requests for admissions in SVP cases. According to the State, the attorneys
who represent the State in SVP proceedings, the Special Prosecution Unit (SPU),
has no identifiable client; the State claims that requiring it to respond to Young’s
requests necessarily requires its attorneys to disclose their mental impressions,
opinions, conclusions, or legal theories. The State’s Brief states:
The attorneys in SPU have no real, identifiable client. The civil
division of SPU is, essentially, a law office. But we have no client.
There is no client who directs our activities. There is no client to
whom we answer. There is no client that sits with us at counsel table
during trial. This places us in a [] unique situation in that there is no
client to whom we can turn for responses to requests for admissions.
Because there is no person, client, or party, who can respond to
requests for admissions, the trial court did not abuse its discretion
when it entered the protective order.
While the SPU argues it has no real client, the petition seeking Young’s
commitment indicates that the SPU’s client is the State of Texas. In its brief, the
State asks that we grant relief to the State. Thus, it appears from the record that the
State, not the SPU, is the party to the commitment proceedings that involve Young.
The civil division of SPU is responsible for initiating and pursuing civil
commitment proceedings under the SVP statute. See Tex. Health & Safety Code
Ann. § 841.004 (West 2010). Absent conflicts with other provisions of the SVP
statute, civil commitment proceedings are subject to the rules of procedure for civil
4
cases. See Tex. Health & Safety Code Ann. § 841.146(b) (West 2010). We have
held that absent an express statutory exception, the rules of discovery apply to SVP
proceedings. See In re Commitment of Malone, 336 S.W.3d 860, 862 (Tex. App.—
Beaumont 2011, pet. denied). We find nothing in the SVP statute to support the
State’s argument that it is exempt from responding to requests for admission. See
generally Tex. Health & Safety Code Ann. §§ 841.001-.151.
Treating the State as the SPU’s client and treating the State as a party to
these proceedings treats the State in a manner consistent with settled Texas
precedent. “As a general rule, the State litigates as any other party in Texas
courts[.] ‘When the [S]tate becomes a litigant in the courts[,] it must observe and is
bound by the same rules of procedure that bind all other litigants, except where
special provision is made to the contrary.’” Tex. Dep’t of Corr. v. Herring, 513
S.W.2d 6, 7 (Tex. 1974) (quoting Tex. Co. v. State, 281 S.W.2d 83, 90 (Tex.
1955)). We hold that the State does not enjoy any general exemption from the
requirement that it respond or object to requests for admissions under the same
rules that apply to other litigants in civil cases.
Because the trial court did not state the basis of its ruling when it ruled on
the State’s motion for protective order, we are required to review the State’s other
objections to Young’s requests to determine if they provide a reasonable basis to
5
uphold the trial court’s decision denying Young’s motion to compel. Twelve of
Young’s admissions are the subject of core work-product objections lodged by the
State (requests nine, ten, nineteen, twenty, and twenty-two through twenty-nine).
Core work product is protected from discovery by Rule 192.5 of the Texas Rules
of Civil Procedure. These twelve requests ask that the State admit certain matters
related to what the State (not its attorneys) had done, offered, or required of
Young, to admit that Young’s entire criminal record was contained in certain
records, to admit whether the State had evidence that Young had engaged in sexual
misconduct or sexual offenses while he was incarcerated, and to admit whether the
State was aware of certain information about sexually violent predators other than
Young.
Rule 192.5 defines core work product as “the work product of an attorney or
an attorney’s representative that contains the attorney’s or the attorney’s
representative’s mental impressions, opinions, conclusions, or legal theories[.]”
Tex. R. Civ. P. 192.5(b)(1). However, Rule 192.5(c)(1) provides that information
concerning experts, trial witnesses, witness statements, and contentions, matters
that are all discoverable under rule 192.3, are not protected by the work product
privilege. See Tex. R. Civ. P. 192.3, 192.5(c)(1). Additionally, the rules of
procedure specifically allow a party to request disclosure of legal theories and
6
factual bases of the opposing party’s claims. See Tex. R. Civ. P. 194.2(c). We
conclude the twelve requests at issue do not require the State’s attorneys to
disclose their mental impressions, opinions, conclusions, or legal theories about
Young’s case. We conclude the requests at issue did not seek discovery of core
work product, and that a core work product objection provides an insufficient basis
to sustain the trial court’s ruling.
The State also argued that twelve of Young’s requests were not relevant to
the issues in dispute (requests one through nine, twelve, nineteen, and twenty-
nine). Only two of Young’s twelve requests (number twelve and nineteen) relate
specifically to Young. The others (one through nine and twenty-nine) address the
State’s experience with persons who were found to be sexually violent predators, a
class of persons that, as of the date of the trial, did not include Young.
At the pre-trial hearing on the State’s motion, Young did not explain to the
trial court why the ten requests that sought information about the State’s
experience with sexually violent predators other than Young were relevant to the
issues in his case. Although Young argues that his requests about other sexually
violent predators were reasonably calculated to lead to the discovery of relevant
evidence, his brief does not explain how information about other sexually violent
predators is relevant to whether he suffers from a sexual abnormality that makes
7
him likely to engage in a predatory act of sexual violence, the issue for the jury in
his trial. Additionally, Young has not explained why the information about other
sexually violent predators was relevant to any of the specific terms of the trial
court’s commitment order. The trial court could reasonably have denied Young’s
motion to compel a response to these ten requests for admission on the basis that
the admissions at issue were not relevant. We hold the trial court did not abuse its
discretion by allowing the State not to respond to requests one through nine and
twenty-nine.
The remaining two requests subject to a relevance objection—requests
twelve and nineteen—ask for admissions that relate specifically to Young. Request
twelve asks that the State admit it had no evidence that the primary purpose of
Young’s qualifying sexual offenses was victimization. However, to the extent the
charge addresses victimization, the jury was asked to decide whether victimization
would motivate him to commit future predatory acts; it did not ask the jury to
decide whether victimization had motivated him in the past. Moreover, there is no
jury question regarding whether the State has or does not have any evidence, as
that issue relates to a question of law. As a result, request twelve does not concern
a matter directly relevant to the issue before the jury. Because Young failed to
explain how request twelve was relevant to the issues before the jury, we conclude
8
the trial court did not abuse its discretion when it chose to allow the State not to
answer the request.
Request nineteen asks the State to admit that Young, on release from prison,
would be required to register as a sex offender. Although neither party has
addressed the relevance of this request to the issues in Young’s case, it appears that
Young could have used an admission about registering to argue that the State had
sufficient control over registered sex offenders so that further controls would not
be necessary to prevent Young from committing future predatory acts of sexual
violence. With respect to request nineteen, we will assume without deciding that
the State should have been required to file a response. We address separately
whether Young has shown he was harmed because he did not obtain a response to
request nineteen.
The State objected to thirty-six of Young’s requests (numbers eleven,
thirteen through eighteen, twenty-one, and thirty through fifty-seven) because they
“are all things that are best answered by the psychological and/or psychiatric
experts who have been designated by Petitioner in this case, which Respondent
will have the opportunity to do at the time of the expert’s deposition.” The State’s
motion for protective order concludes that these requests seek to discover
information that is protected by the work-product privilege.
9
With respect to these thirty-six requests, Young suggested in the trial court
that “[o]ne party cannot limit the method or methods by which the other party
chooses to conduct discovery.” However, the reasonable inquiry required of a party
in formulating responses to requests for admissions does not require that the
attorneys ask its designated experts for the information that may be needed to
answer requests for admission. See Tex. R. Civ. P. 195.1, 198.2(b). Instead,
discovery from experts is permitted “only through a request for disclosure under
Rule 194 and through depositions and reports as permitted by this rule.” Tex. R.
Civ. P. 195.1.
Based on the arguments that Young presented to the trial court, the trial
court could reasonably conclude that Young improperly used requests eleven,
thirteen through eighteen, twenty-one, and thirty through fifty-seven in an effort to
conduct discovery against the State’s designated experts. We conclude the trial
court did not abuse its discretion by granting the State’s motion with respect to
requests eleven, thirteen through eighteen, twenty-one, and thirty through fifty-
seven.
Harmless Error
We must determine if the trial court’s failure to require the State’s response
to requests ten, nineteen, twenty, and twenty-two through twenty-eight probably
10
caused the rendition of an improper judgment or probably prevented appellant
from properly presenting his case to the court of appeals. See Tex. R. App. P.
44.1(a). First, we address Young’s argument that depriving him of these answers
has made it impossible for him to assess his alleged harm.
With respect to eight of the ten requests (requests twenty, and twenty-two
through twenty-eight), the record shows that Young received the benefits of other
forms of discovery. For example, with respect to Young’s requests addressing
information about his criminal and treatment histories (request twenty, and
requests twenty-two through twenty-eight), the record reflects that Young had
access to the Multi–Disciplinary Team referral packet, “which generally contains
the offender’s psychological evaluation, parole reviews, penitentiary packets,
educational records, sex offender treatment program records or evaluations,
medical records, and prison disciplinary records.” Perez, 2013 WL 772842, at *6.
Additionally, Young could have provided Young’s attorneys with information
about Young’s criminal and treatment histories. Finally, the record reflects that
Young took the depositions of the State’s experts, so he had the opportunity to
discover how the State’s experts had relied on Young’s criminal and treatment
histories in forming their respective opinions. Thus, the record does not show that
11
Young was deprived of any significant benefit in preparing his case for trial
because the trial court did not require the State to respond to these eight requests.
With respect to the two remaining requests, requests ten and nineteen, we
conclude that the outcome in Young’s trial would not have changed had the State
responded to these two requests. Request ten asks the State to admit that it knew
where ninety-five percent of the persons found to be sexually violent predators
were living. Request nineteen asks that the State admit that Young, on release from
custody, would be required to register as a sex offender.
Requests ten and nineteen are unrelated to matters that go to the heart of the
issues in dispute. For example, whether the State knew where ninety-five percent
of the persons found to be sexually violent predators were living appears unrelated
to whether Young has a behavioral abnormality that makes him likely to commit a
future sexual offense. The degree to which Young might be subject to being
controlled through sexual offender registries is a matter that could have been
addressed by the witnesses who testified at Young’s trial. Because none of the
experts were asked to address the issue, it appears that Young did not think the
matter was one that went to the heart of his case.
We conclude that the trial court’s failure to require the State to respond to
the ten requests at issue did not cause the rendition of an improper judgment or
12
prevent Young from presenting his case on appeal. Id., see Tex. R. App. P. 44.1(a).
We overrule issue one.
Young’s Requests for Production to the State
In issue two, Young complains that the trial court refused to compel the
State to produce documents in response to requests to produce eighteen and
nineteen, asking for “[a]ll documents concerning the procedure for selecting
which of the offenders referred to the Special Prosecution Unit will be prosecuted
for civil commitment[]” and “[a]ll documents reviewed, submitted, and/or
considered in the process of deciding that Respondent would be prosecuted for
civil commitment.” The State objected to these requests, asserting the documents
were not relevant and that the requests invaded its privilege against producing
work product. Young filed a motion to compel, arguing that these requests were
“relevant to the issue of whether the Special Prosecution Unit is applying Chapter
841 of the Texas Health & Safety Code in accord with Respondent’s rights of
equal protection and due process.”
Young argues that in the absence of evidence supporting the State’s
objections, the trial court erred in denying his motion to compel. See Tex. R. Civ.
P. 193.4(a). But, supporting evidence is not always needed to support a trial court’s
discovery rulings. See In re Union Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999)
13
(“As the rule recognizes, evidence may not always be necessary to support a claim
of protection from discovery.”). “Although the scope of discovery is broad,
requests must show a reasonable expectation of obtaining information that will aid
the dispute’s resolution.” In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.
proceeding). Consequently, “requests must be reasonably tailored to include only
matters relevant to the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.
1998) (orig. proceeding). “The trial court must make an effort to impose
reasonable discovery limits.” Id. “It is the discovery proponent’s burden to
demonstrate that the requested documents fall within the scope-of-discovery of
Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex. App.—Beaumont
2005, orig. proceeding). Trial courts have the discretion to refuse to compel
discovery if the information being requested by the interrogatory or request at issue
is so inclusive that responding would require matters to be included that are
unlikely to fall within the scope of discovery that governs the parties’ dispute. See
In re Christus Health Se. Tex., 399 S.W.3d 343, 348 (Tex. App.—Beaumont, 2013,
orig. proceeding).
Without hearing evidence, the trial court could also determine that
responding to request eighteen would require the State to produce documents that
would not be relevant to the issues to be decided at Young’s trial. The trial court,
14
without hearing evidence, could also conclude that request nineteen includes
matters that are protected as work product—the procedure used by the SPU in
selecting the persons that it would seek to civilly commit. Additionally, the trial
court could have concluded that documents pertaining to other sex offenders were
not relevant to the issues that the jury would decide in Young’s case. Because
request eighteen sought documents about the referrals of persons other than
Young, the trial court could have reasonably concluded that the requests would
require the State to produce documents that were not relevant to Young.
Request nineteen sought documents reviewed or considered in deciding
whether Young would be prosecuted for civil commitment. Under the SVP statute,
the attorneys are involved in the decision to file the civil commitment proceeding,
and the matters they considered in doing so are subject to the work product
privilege. See Tex. R. Civ. P. 192.5(a) (defining work product); see also Tex.
Health & Safety Code Ann. § 841.041(a) (West 2010) (“If a person is referred to
the attorney representing the state under Section 841.023, the attorney may file …
a petition alleging that the person is a sexually violent predator and stating facts
sufficient to support the allegation.”). With respect to request to produce eighteen
and nineteen, we conclude the trial court did not abuse its discretion by denying
Young’s motion to compel. We overrule issue two.
15
The State’s Requests for Admission to Young
In issue three, Young contends the trial court abused its discretion in
compelling him to answer nine of the State’s requests for admission (requests ten
through eighteen). These nine requests asked that Young admit or deny that he was
charged, convicted, and sentenced in three separate criminal cases. Young
objected, asserting the matters were inadmissible because he had entered pleas of
nolo contendere on the cases addressed in the nine requests. See Tex. R. Evid. 410.
A personal plea of guilty to a criminal charge is admissible in evidence in a
subsequent civil suit arising out of the same act, but a plea of nolo contendere is
not. See Tex. R. Evid. 410(2); Johnson v. Woods, 315 S.W.2d 75, 77 (Tex. Civ.
App.—Dallas 1958, writ ref’d n.r.e.); see also Tex. Code Crim. Proc. Ann. art.
27.02(5) (West 2006) (instructing 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”). Rule 410 states that a
plea of nolo contendere is inadmissible in a civil case, but the requests for
admission do not ask Young to admit that he pled nolo contendere; the requests for
admissions ask whether Young had been charged, convicted, and sentenced based
on the three prior crimes. See Tex. R. Evid. 410. Nonetheless, Rule 410 is not
intended to prevent the State from proceeding under a statute to impose civil
16
consequences that result from criminal convictions. See, e.g., 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).
Before a person may be civilly committed, the State must prove that the
person is a repeat sexually violent offender. See Tex. Health & Safety Code Ann. §
841.003(a)(1) (West 2010). Young’s civil commitment proceeding is based, in
part, on Young’s prior convictions for sexually violent offenses; thus, the requests
for admission asked about matters that the State was required to prove at trial. In
SVP cases, the State may prove that the person was charged, convicted and
sentenced for prior sexually violent offenses that were obtained based on pleas of
nolo contendere. See id. § 841.003(b) (West 2010). Because the nine requests at
issue are relevant to the State’s case under the civil commitment statute, the trial
court did not abuse its discretion by compelling Young’s responses. We overrule
issue three.
17
Trial Rulings
Jury Selection
In issue four, Young contends the trial court violated his statutory right “to
appear at trial” because Young was not personally present in the courtroom when
the trial court considered the parties’ challenges for cause. See Tex. Health &
Safety Code Ann. § 841.061(d) (West 2010) (providing that the person the subject
of the commitment proceeding “the right to appear at the trial”). The record
reflects that Young was present for the entire voir dire, but at the conclusion of the
voir dire, the trial court asked to see counsel. While in chambers, in Young’s
absence, the trial court denied counsel’s request to delay the proceedings to wait
for Young, considered the parties’ agreed strikes, and, with the agreement of the
parties, the trial court struck eleven members of the array. However, when the trial
court returned to the courtroom to question other members of the array
individually, Young was present, and he remained present when the parties
exercised their peremptory strikes.
Young argues “the right to appear at the trial,” found in section
841.061(d)(1) of the Health and Safety Code, applies in the same manner as article
33.03 of the Texas Code of Criminal Procedure. Young correctly asserts that he
was entitled to be present during jury selection, as jury selection in SVP cases is
18
governed by the Code of Criminal Procedure. Tex. Health & Safety Code Ann. §
841.146(a) (West 2010) (providing that “[t]he number and selection of jurors are
governed by Chapter 33, Code of Criminal Procedure.”). Article 33.03 of the Code
of Criminal Procedure states that “the defendant must be personally present at the
trial” unless he voluntarily absents himself after jury selection. Tex. Code Crim.
Proc. Ann. art. 33.03 (West 2006).
When reviewing violations of article 33.03 that relate to the defendant’s
presence during jury selection, appellate courts consider whether the defendant’s
presence has a reasonably substantial relationship to his opportunity to defend.
Compare Jasper v. State, 61 S.W.3d 413, 422-24 (Tex. Crim. App. 2001)
(defendant’s absence when jurors’ excuses heard was harmless); Hodges v. State,
116 S.W.3d 289, 296-98 (Tex. App.—Corpus Christi 2003, pet. ref’d) (defendant’s
absence during peremptory strikes harmless where defendant later waived jury);
Bath v. State, 951 S.W.2d 11, 22-23 (Tex. App.—Corpus Christi 1997, pet. ref’d)
(defendant’s absence when venire member qualified and juror exemptions heard
was harmless); Weber v. State, 829 S.W.2d 394, 395-97 (Tex. App.—Beaumont
1992, no pet.) (defendant’s absence when juror excuses heard was harmless), with
Sumrell v. State, 326 S.W.3d 621, 624-27 (Tex. App.—Dallas 2009), pet. dism’d
improvidently granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) (defendant’s
19
absence during individual questioning of jurors who expressed bias was harmful);
Bledsoe v. State, 936 S.W.2d 350, 361 (Tex. App.—El Paso 1996, no writ)
(defendant’s absence during individual voir dire was harmful).
During all of the jury selection proceedings that occurred in open court,
Young was physically present. Although Young was not present when the trial
court determined who the attorneys for the parties had agreed to dismiss, he has not
argued and it has not been shown that his absence affected the makeup of the jury.
Accordingly, on the face of this record, we conclude that Young’s brief absence
during jury selection did not substantially interfere with his ability to defend
against the State’s case. Because Young has not shown that he was harmed by his
brief absence in chambers when the parties discussed their agreed strikes, we
overrule issue four.
Certified Questions from Deposition
In issue five, Young contends the trial court should have required the State’s
testifying psychologist, Dr. Antoinette McGarrahan, to answer several questions
she was asked during her deposition. The transcript of Dr. McGarrahan’s
deposition reflects that the court reporter recorded a number of questions for later
ruling by the trial court. The trial court heard Young’s motion to compel Dr.
McGarrahan’s answers shortly after jury selection and before trial testimony
20
began; Young’s attorney secured rulings on four of the unanswered questions
(questions one through four) during the hearing on the motion to compel.
On appeal, Young complains that the trial court should have required Dr.
McGarrahan to answer questions three and four, and questions thirteen through
sixteen. However, Young did not secure rulings from the trial court with respect to
questions thirteen through sixteen. As a result, Young failed to preserve his
complaints regarding questions thirteen through sixteen for appellate review. See
Tex. R. App. P. 33.1 (providing that error preservation requires a party to obtain a
ruling from the trial court as a prerequisite to presenting a complaint for appellate
review).
The trial court denied Young’s motion with respect to questions three and four.
These questions ask:
• [Question 3] Dr. McGarrahan, would you agree that as of August 31st,
2010, it was the position of the Council on Sex Offender Treatment that
no one adjudicated of a sexually violent predator -- adjudicated as a
sexually violent predator in Texas has been charged with or convicted of
a new sex crime?
• [Question 4] Let’s assume that the Council on Sex Offender Treatment is
right, that as of August 31st, 2010, no person adjudged a sexually violent
predator in the [S]tate of Texas has either been arrested for or convicted
of a subsequent sexually violent offense. Wouldn’t including those
statistics into the group that you characterize as being inherently low-
risk lower the risk even further?
21
Young contends counsel for the State, during Dr. McGarrahan’s deposition,
improperly instructed Dr. McGarrahan not to answer these questions. The record
reflects that the State’s attorney did instruct her witness not to answer these
questions.
Attorneys, with limited exceptions, are not allowed to instruct that a witness
not answer a question during a deposition. Rule 199.5(f) provides: “An attorney
may instruct a witness not to answer a question during an oral deposition only if
necessary to preserve a privilege, comply with a court order or these rules, protect
a witness from an abusive question or one for which any answer would be
misleading, or secure a ruling[.]” Tex. R. Civ. P. 199.5(f).
During the hearing on Young’s motion to compel, the State argued any
answer to question three would be misleading “as to anything that has to do with
Mr. Young’s behavioral abnormality.” Young argued “we were attempting to
discover Dr. McGarrahan’s rate of error in her evaluations[,]” to which the trial
court noted, “You should have asked that question because you didn’t ask that
question.” Young argued the answer “goes to the credibility of the witness.” The
trial court noted Young phrased the question to ask if Dr. McGarrahan agreed that
another party took a position, which created a problem because “[i]f you want to
get into that, you’ve got to get those people and bring them in here and have them
22
testify about it[.]” The trial court found that question four also requested a
misleading response.
Questions three and four refer to the 2010 biennial report prepared by the
Council on Sex Offender Treatment. See Tex. Occ. Code Ann. § 110.160 (West
2012); Council on Sex Offender Treatment, Biennial Report Regarding the Council
on Sex Offender Treatment September 1, 2008 – August 31, 2010 (2010)
(available at http://www.dshs.state.tx.us/csot/default.shtm). Young’s attorney
showed the 2010 report to Dr. McGarrahan during her deposition, and determined
in the deposition that Dr. McGarrahan used two actuarial tests in evaluating
Young, the Static-99R and the Minnesota Sex Offenders Screening Tool Revised
(MnSOST). The 2010 report contains detailed information about the Council’s
activities, and it includes a statement about recidivism rates, but the document is a
report to the Governor, Lieutenant Governor, and Speaker of the House of
Representatives, not an actuarial instrument or other scientific peer-reviewed
document. See Tex. Occ. Code Ann. § 110.160; Council on Sex Offender
Treatment, Biennial Report Regarding the Council on Sex Offender Treatment
September 1, 2008 – August 31, 2010 (2010) (available at
http://www.dshs.state.tx.us/csot/default.shtm). On appeal, Young argues that his
questions concern Dr. McGarrahan’s potential rate of error, making it a matter that
23
is discoverable in a deposition. See Tex. R. Civ. P. 192.3(e)(4) (providing that a
party may discover a testifying expert’s mental impressions and opinions formed
or made in connection with the case, and any methods used to derive them).
The record does not support Young’s claim that questions three and four are
relevant to determining Dr. McGarrahan’s error rate in applying the Static-99R and
the MnSOST. 1 A report addressing the general success rate of sex offender
treatment does not speak to Dr. McGarrahan’s predictive accuracy for a person
who has not yet been committed to a program of sex offender treatment. By
seeking to use the Council’s report to measure the accuracy of Dr. McGarrahan’s
application of the Static-99R and the MnSOST, Young’s questions present a
fallacy of distribution that suggests Young’s recidivism risk can be extrapolated
from statistics using recidivism statistics derived by actuarial instruments that have
been used to measure the recidivism risks of a treated population. 2 In the context of
1
We do not suggest that the Council’s report would not be relevant under
any circumstances. The civil commitment proceeding concerns not only the
determination that a person is a sexually violent predator but also the terms of
commitment ordered by the trial court if the person is civilly committed. See Tex.
Health & Safety Code Ann. § 841.003(a), § 841.082(a)(8) (West Supp. 2012).
Young neither asked Dr. McGarrahan if she was familiar with the report nor did he
ask her to explain it.
2
For example, if no schoolboy who receives the chicken pox vaccine
subsequently develops chicken pox, it does not follow that a schoolboy should not
be vaccinated because he is not at risk for chicken pox. In Young’s case, there was
24
the arguments presented to the trial court, we conclude that the trial court’s
decision about the questions as being misleading is supported by the record and
was reasonable. We overrule issue five.
Trial Rulings
Opening Statement
In issue six, Young contends the trial court abused its discretion by
permitting the prosecutor to summarize the evidence during his opening statement.
The rule of civil procedure controlling the order of proceedings in a civil trial
provides that the party with the burden of proof on the whole case “shall state to
the jury briefly the nature of his claim or defense and what said party expects to
prove and the relief sought.” Tex. R. Civ. P. 265(a). The State’s opening statement,
which consumes thirteen pages of the record, lacks the brevity mentioned in Rule
265(a). The trial court admonished counsel to be brief several times before
granting Young’s request for a running objection. Counsel continued to describe
another sexual offense and prison infractions that he expected to present to the jury
no evidence to show the rate of recidivism for persons who never received
treatment, so it is an unknown. Nor is there any evidence indicating that the rate of
recidivism in a population that had received treatment could be used to extrapolate
a rate of recidivism for a population that had not been treated.
25
during trial, described the testimony he expected the State’s experts would present,
and explained the State’s burden of proof.
Generally, by detailing the evidence during opening statement, counsel may
place matters before the jury before the trial court can determine its admissibility;
as a result, an opening statement that discusses evidence that may never be
admitted carries the potential of confusing the jury when the evidence the trial
court admits differs from the evidence counsel mentioned in opening statement.
See Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170-71 (Tex. Civ. App.—Austin
1975, writ ref’d n.r.e.). On appeal, the State does not defend the degree of detail
that is found in its opening statement; instead the State argues the error in allowing
its attorney to provide the jury with details about what the evidence would show
was harmless. See Tex. R. App. P. 44.1(a)(1). Young argues that he was harmed
because introducing details concerning sexual assaults described in the opening
statement prejudiced the jury.
In this case, counsel’s opening does not vary in any significant manner from
the evidence the trial court admitted during Young’s trial. Counsel’s description of
Young’s prior sexual offenses and mental impairment, mentioned by counsel
during opening statement, are consistent with the evidence the trial court admitted
during trial on these matters. When evidence consistent with the details described
26
in the opening statement is developed during the trial, the trial court’s error in
overruling an objection complaining about counsel’s mention of the evidence in
opening statement is harmless. See Guerrero v. Smith, 864 S.W.2d 797, 800 (Tex.
App.—Houston [14th Dist.] 1993, no pet.). Because the evidence admitted during
trial does not vary significantly from the matters that State’s counsel discussed in
opening statement, we conclude that any error in the trial court’s allowing State’s
counsel to tell the jury in opening statement how the State intended to prove its
case was harmless. See Tex. R. App. P. 44.1. We overrule issue six.
Displaying Exhibits
In issue seven, Young complains that the trial court erred when, just before
the attorneys made their opening statements, it overruled his objection to the
State’s display of four exhibits during opening argument. Young did not identify
the exhibits by number when discussing his objection with the trial court; Young
suggests the documents consisted of Young’s judgments and the curricula vitae of
the State’s expert witnesses. Additionally, the record does not reveal whether
State’s counsel actually displayed these four exhibits to the jury during opening
argument.
27
Young argues the trial court’s ruling allowed the State to show the jury that
his convictions were obtained on pleas of nolo contendere. 3 It is not clear from the
record whether the jury saw any of the four exhibits at issue during the State’s
opening argument. We hold that Young failed to preserve error regarding issue
seven. See Tex. R. App. P. 33.1. Issue seven is overruled.
Expert Testimony
In issue eight, Young contends the trial court impermissibly restricted his
right to cross-examine the State’s testifying psychiatrist, Dr. Michael Arambula,
about his rate of error. The trial court did not allow Young’s counsel to ask Dr.
Arambula the following questions:
• Your procedure has not been tested for accuracy?
• Are you aware of what your rate of error is regarding your opinions in
behavioral abnormality evaluations?
• Are you concerned at all with your rate of error being so high at one
hundred percent? Why or why not?
• And no person that you have found to have a behavioral abnormality has
reoffended sexually upon release?
3
When cross-examining the witnesses who testified, Young’s counsel
introduced the jury to the fact that Young’s convictions were obtained through
pleas of nolo contendere as well as the legal distinction between pleas of guilty and
nolo contendere. The State did not introduce these matters during its direct
examinations of the witnesses.
28
The jury’s determination that Young is a sexually violent predator relies
upon the opinion testimony of the State’s experts; therefore, questions about the
general accuracy of Dr. Arambula’s opinions concern a subject matter that relates
directly to his trial testimony; it is a relevant inquiry. See Tex. R. Evid. 401
(relevant evidence tends to make the existence of a fact of consequence more or
less probable than it would be without the evidence). A witness may be cross-
examined on any matter relevant to any issue in the case. See Tex. R. Evid. 611(b).
Error may not be based on a ruling that excludes evidence unless “the
substance of the evidence was made known to the court by offer, or was apparent
from the context within which questions were asked.” Tex. R. Evid. 103(a)(2);
Tex. R. App. P. 33.1(a)(1). “To preserve error concerning the exclusion of
evidence, the complaining party must actually offer the evidence and secure an
adverse ruling from the court.” Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El
Paso 2002, no pet.). Young’s counsel failed to make an offer of proof, and he has
not identified the answers he expected to receive from Dr. Arambula to the
proffered questions. 4 Without an offer of proof, we cannot determine whether the
4
We have repeatedly rejected challenges concerning the reliability of Dr.
Arambula’s opinion testimony in civil commitment trials. See, e.g. In re
Commitment of Hill, No. 09-11-00593-CV, 2013 WL 772834, at **4-7 (Tex.
App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.); In re Commitment of
Kalati, 370 S.W.3d 435, 436-40 (Tex. App.—Beaumont 2012, pet. denied); In re
29
exclusion of the evidence was harmful. See Perez, 74 S.W.3d at 66-67. Because
Young has not shown that the exclusion of the evidence was harmful, we overrule
issue eight.
In issue nine, Young contends the trial court abused its discretion in
allowing Dr. McGarrahan to describe the details of Young’s sexual offenses. The
trial court admonished the jury: “Hearsay normally is not admissible; however,
certain hearsay information contained in the records reviewed by the experts is
allowed into evidence through expert testimony. Such evidence is admitted only
for the purpose of showing the basis of the expert’s opinion.”
Rule 705(a) of the Texas Rules of Evidence allows an expert to disclose the
facts or data on which the expert bases an opinion. See Tex. R. Evid. 705(a). If the
trial court admits underlying facts or data that would otherwise be inadmissible,
such as hearsay, the court, on request, is required to give the jury a limiting
instruction. See Tex. R. Evid. 705(d). When the trial court gives the jury a limiting
instruction, we presume the jury followed it. See In re Commitment of Day, 342
S.W.3d 193, 198-99 (Tex. App.—Beaumont 2011, pet. denied). In light of the
limiting instruction, the admission of the testimony explaining the data on which
Commitment of Cox, No. 09-11-00100-CV, 2012 WL 759049, at **4-7 (Tex.
App.—Beaumont Mar. 8, 2012, pet. denied) (mem. op.); In re Commitment of Day,
342 S.W.3d 193, 204-06 (Tex. App.—Beaumont 2011, pet. denied).
30
Dr. McGarrahan based her opinion was not an abuse of discretion. We overrule
issue nine.
Having overruled all of Young’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on April 4, 2013
Opinion Delivered September 5, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
31