in Re Commitment of Tommy Dale Sells Sr.

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00172-CV
____________________

IN RE COMMITMENT OF TOMMY DALE SELLS SR.
________________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 14-06-06686 CV
________________________________________________________________________

MEMORANDUM OPINION

The State filed a petition to commit Tommy Dale Sells Sr. (Sells or

Appellant) as a sexually violent predator. See Tex. Health & Safety Code Ann.

§§ 841.001-.151 (West 2010 & Supp. 2015) (SVP statute). A jury found that Sells

is a sexually violent predator, and the trial court rendered a final judgment and an

order of civil commitment. Sells timely filed an appeal.

BACKGROUND

At the time of trial, Appellant was serving a fifteen-year sentence for two

sexual offenses: indecency with a child and aggravated sexual assault. Appellant

1
testified that his six-year-old grandchild was the victim of the offenses for which

he was currently serving time and he pleaded guilty to the offenses.

Appellant testified that in the early 1970s, he pleaded guilty to stealing a car

in Louisiana. He also agreed that he was convicted in Texas in 1977 on a charge of

unauthorized use of a motor vehicle, for which he was given probation. He

explained that he was later arrested on a DWI charge, and after he escaped from

city jail, his probation was revoked and he went to prison. He further stated he

received a five-year sentence on a burglary charge in the early 1980s.

According to Appellant, in approximately 1986, he was convicted in

California for lewd or lascivious acts with a child for acts against his daughter. He

denied the allegations but stated that four charges for sexual offenses were also

brought against him for various acts with his two boys and his daughter. Appellant

stated that he was convicted of indecency with a child and given five years’

probation for the offenses against his own children.

Appellant explained that he has amputations of both legs and his left arm as

the result of a train/pedestrian accident that occurred around 1986. He also agreed

that he is an alcoholic and he had been arrested “maybe three times” for DWI. He

also testified that he was previously convicted of criminal mischief. Appellant also

testified that he was arrested in California for shoplifting and that he resisted the

2
police when they pulled him from his wheelchair to place him in the patrol car. He

received a deferred sentence as a result of this incident.

EXPERT BASIS EVIDENCE

In his first issue on appeal, Appellant argues that the trial court erred by

admitting “highly and unfairly prejudicial details of the sexual offenses Appellant

was convicted and accused of” that the State’s expert considered as basis evidence.

Appellant’s brief acknowledges that this Court has repeatedly held that an expert in

an SVP commitment proceeding may testify regarding evidence of the defendant’s

prior offenses provided the expert considered such evidence in forming an opinion

and, where requested, the trial court gives a limiting instruction. See, e.g., In re

Commitment of Day, 342 S.W.3d 193, 197-99 (Tex. App.—Beaumont 2011, pet.

denied); see also Tex. R. Evid 705(d). However, Appellant asserts that the

evidence shows that the jury treated the basis evidence, which would normally be

inadmissible as hearsay, for the truth of the matter asserted, in contravention to the

court’s limiting instruction.

During the trial, the State’s expert witness, Dr. Sheri Gaines, testified that

among the evidence she considered in forming her expert opinion were records of

Appellant’s prior offenses. Gaines then testified that Appellant’s first sexual

offenses occurred in 1986 in California. When the State asked who the victim or

3
victims of these offenses were, Appellant objected that the evidence was hearsay

and improper under Rule 403. The court overruled the objections and gave a

limiting instruction. Gaines then testified that Appellant’s children were his victims

in the 1986 offenses and Gaines also testified as to how the offenses occurred.

Gaines also testified that the four charges resulted in no convictions. Appellant

asked for a running objection as to the basis evidence, which the court allowed.

Later during the trial, Appellant’s expert, Dr. Roger Saunders, testified that

he also considered records of the prior offenses among other evidence in forming

his expert opinion as to whether Appellant has a behavioral abnormality. On cross-

examination, Dr. Saunders also agreed to certain details of the sexual offenses.

Following the trial, Appellant filed a motion for new trial based in part upon

the argument that “there was material jury misconduct[].”Specifically, Appellant

asserted that one of the jurors, B.M., had posted comments to a Houston Chronicle

online article after the trial and Appellant argued that B.M.’s comments “suggest

an outside influence, originating from a source other than the jurors themselves.”

Appellant attached an affidavit of another juror, N.G., who attested that the person

who posted the comments to the news article had served on the jury with N.G.

At a hearing on the motion for new trial, Appellant questioned B.M. and

B.M. admitted he had posted comments following the online publication of the

4
Chronicle’s article about the trial. B.M.’s complained-of comments were admitted

into evidence:

I was on this jury and beside from the distraction of [the news
reporter] consistently shaking her head no every time the State spoke,
justice was served for the People of Texas and the family members of
this monster. Family members, that he sodomized while he was an
amputee AND before! It doesn’t take arms or legs to convince a 6 six
year old girl OR BOY to keep quiet, and/or threaten them with death
amongst other things. The only thing I regret from that trail [sic], is
not telling the judge or bailiff to kick [the news reporter] out for
distracting the jury and justice system in general. If [the news
reporter] had show [sic] up on time to the trial and not have such a
determination to hang a judge simply because he’s conservative
maybe she would have paid more attention to the facts of the one
question we were to answer in this case. “Do you find beyond a
reasonable doubt that TOMMY DALE SELLS, SR. is a sexually
violent predator?” HELL YEAH I DO!!! BTW Where’s her mention
that this SOB was convicted of molesting his daughter as well? The
charges of molesting his two sons and then having them perform
sexual acts on each other? Convictions for 3 DWIs? Conviction of
burglary? Conviction of assaulting a police officer? Evading a police
officer? Escaping from jail?

....

. . . Another fact that [the news reporter] decided to omit was
the this [sic] scumbag used an electric wheelchair, steel hook as a
prosthetic, and has no issue moving himself from the wheelchair to
bed or a chair (OR move his six year old grand[child] to a table top to
[] and then move her to the couch to fully rape her) so I don’t know if
it’d be that easy.

....

. . . I’m sure that if you got your “facts” from sources like the
HC you would come to the conclusion . . . . However, I am a focused
5
 person and on this will be sticking to the topic of what I observed in
that trial including [reporter’s name]. Thank you for finding it
interesting.

At the hearing, B.M. agreed he regarded Appellant as a “monster[.]” B.M. further

testified that he came to this conclusion after having heard “everything in the

case[]” and after “both sides closed their case[.]”

During examination of B.M. by Appellant, the court stated that “everything

so far that you are asking is related to post-jury conduct.” And at the conclusion of

questioning, the court explained:

Counsel, I’m looking for some law to support outside influence.
I have told you that. I have looked at your motion. Your motion said
that there was an affirmative blatant prejudice supporting his failure to
respond. And thus far, you have no evidence to support that. Now,
that’s the basis of your motion. I have read it. I have read the
response. I read the statement of fact that I have got of this. I know the
questions that were asked. I’m ready to proceed. I’m going to have to
sustain Counsel’s objection. I am looking at what you say you have. I
am asking you to just go forward with it.

The court denied the motion for new trial without entering findings of fact or

conclusions of law.

On appeal, Appellant challenges the trial court’s admission of Dr. Gaines’s

testimony concerning the details of previous offenses, but Appellant does not

appeal the denial of his motion for new trial. We review the admission of evidence

for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial

6
court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if

it acts without reference to any guiding rules or principles. See Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). And we

consider a trial court’s ruling in light of what was before the court at the time the

ruling was made. See Stephens Cty. v. J.N. McCammon, Inc., 52 S.W.2d 53, 55

(Tex. 1932) (“When an appellate court is called upon to revise the ruling of a trial

court it must do so upon the record before that court when such ruling was

made.”); Spiritas v. Davidoff, 459 S.W.3d 224, 231 (Tex. App.—Dallas 2015, no

pet.) (same); Congleton v. Shoemaker, Nos. 09-11-00453-CV, 09-11-00654-CV,

2012 Tex. App. LEXIS 2880, at **15-16 n.3 (Tex. App.—Beaumont April 12,

2012, pet. denied) (mem. op.) (“Our review . . . is limited to the record before the

trial court at the time of its ruling.”).

We have repeatedly held that a trial court does not err in admitting basis

testimony by an expert in an SVP commitment proceeding regarding evidence of

the defendant’s prior offenses provided the expert considered such evidence in

forming her opinion and, where requested, the court gives a limiting instruction.

See, e.g., Day, 342 S.W.3d at 197-99; see also Tex. R. Evid 705(d). We presume

the jury followed the trial court’s limiting instruction and the jury charge. See

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.

7
2009) (“The jury is presumed to have followed the court’s instructions.”); Day,

342 S.W.3d at 199 (“We also presume the jury followed the trial court’s limiting

instruction.”).

Appellant argues that the online comments from the juror, B.M., are

evidence that “this case clearly shows that one . . . juror could not and did not[]”

follow the court’s limiting instruction. As noted by the trial court at the hearing,

B.M.’s online comments and testimony at the hearing relating thereto “related to

post-jury conduct[,]” B.M.’s online comments were not before the trial court when

it made the decision during the trial to admit Dr. Gaines’s testimony concerning

the basis of her opinions. We conclude that the trial court did not abuse its

discretion in admitting Dr. Gaines’s testimony, and we overrule Appellant’s first

issue on appeal.

JURY ARGUMENT

In his second issue, Appellant argues that the trial court committed

reversible error in allowing the State to make an improper jury argument that “the

hearsay records in this case were reliable and authentic in contravention [to] the

hearsay limiting instruction.” According to the State, because both experts

characterized the records as official or reliable, the State’s closing argument

constituted a permissible summary of the evidence.

8
 Appellant complains about the following portion of the State’s closing

argument:

[State’s attorney]: . . . Now, something may be hearsay but still may
be quite reliable. Both doctors told you that part of the methodology
in this type of evaluation is to review records. That’s -- both doctors
agree that that’s standard and that you take these official records as
valid, you know, as reliable.

[Defense attorney]: Objection, Your Honor, improper characterization
of the records as being official.

THE COURT: As what?

[Defense attorney]: As being official.

THE COURT: All right. Rephrase, please.

[State’s attorney]: Well, Dr. Gaines told you that she looks at official
records. All right? And the fact that they look at records that are
hearsay doesn’t mean that the records are not reliable. That’s why
they rely on these records, is because that’s reliable information that
was generated at the time of the events that the records deal with. If
you call 15 years after the fact and say tell me what happened you’re
not going to get, you know, as reliable of a -- a report as the report
that was made at the time.
So the fact that there are some documents that are hearsay
doesn’t mean the documents are not reliable. Both doctors told you
that’s part of the standard methodology of doing these evaluations.

[Defense attorney]: Objection, Your Honor, based on the credibility of
the witnesses as far as the authentication of the documents, are they
reliable and they’re hearsay documents.

THE COURT: At this point, Counsel, I’ll overrule the objection as I
understand it.

9
 During the trial, Dr. Gaines, the State’s expert, testified that she reviewed

the pen packet, prison records – which included education and medical records –

police records, and depositions of Appellant, Dr. Saunders, and herself. Gaines

testified that reviewing such records is part of the standard methodology for

experts who do this type of evaluation and that she does not independently verify

these records because “[t]hese records are official records. These are records that

were generated contemporaneously, some of them decades ago. And I rely on this

information to be official.”

Dr. Saunders, the expert for Appellant, also testified that, in forming his

opinion, he reviewed police records, prison records, medical records, reports

provided by other mental health professionals, and depositions of Appellant, Dr.

Gaines, and himself. Dr. Saunders also explained that such records are typically

relied on by experts in his field doing this type of evaluation. Dr. Saunders agreed

that he considered convictions of Appellant as “facts of law.” When asked about a

particular report from the United States Department of Justice that he had

reviewed, Dr. Saunders said, “I have no reason to doubt the credibility of the

document.” When asked about the records in general, Dr. Saunders agreed that he

“largely[]” took the information in the records as true and also said, “I didn’t

contest them for their origin or veracity.” Both experts agreed that the details of the

10
criminal offenses were important in coming to their conclusions of whether he has

a behavioral abnormality. A copy of the pen packet was admitted into evidence,

which included information pertaining to the defendant’s convictions in 1978,

1980, and 2000.

During Dr. Gaines’s testimony, the trial court gave a limiting instruction to

the jury at the request of the defense, which included the admonition that “Such

hearsay is admitted only for the purposes of showing the basis of the expert’s

opinion and cannot be considered as evidence to prove the truth of the matter

asserted.” The defendant’s attorney emphasized the hearsay instruction during his

closing argument. And the jury charge itself included the following instructions:

You are to make up your own minds about the facts. You are
the sole judges of the credibility of the witnesses and the weight to
give their testimony. . . .

....

Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered to prove the truth of
the matter asserted. Certain hearsay information contained in records
reviewed by the experts was admitted before you through expert
testimony. Such hearsay was admitted only for the purpose of
showing the basis of the experts’ opinion and cannot be considered as
evidence to prove the truth of the matter asserted.

To obtain a reversal based on an error during jury argument, a party must

show (1) an error occurred, (2) that was not invited or provoked, (3) that was

11
preserved by proper trial predicate, such as an objection, a motion to instruct, or a

motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal

of the statement, or a reprimand by the judge. In re Commitment of Eeds, 254

S.W.3d 555, 560 (Tex. App.—Beaumont 2008, no pet.) (quoting Standard Fire

Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979)). Generally speaking, most

improper arguments may be cured by an instruction to disregard. See Living Ctrs.

of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008); Newby v. State, 252

S.W.3d 431, 438-39 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).

“Generally, proper jury argument falls into one of these areas: (1) a

summation of the evidence, (2) a reasonable deduction from the evidence, (3) an

answer to an argument made by opposing counsel, or (4) a plea for the

enforcement of a law.” In re Commitment of Dodson, 434 S.W.3d 742, 751 (Tex.

App.—Beaumont 2014, pet. denied); see generally Tex. R. Civ. P. 269(b), (e).

Arguments that are presented to juries in summation should be confined “strictly to

the evidence and to the arguments of opposing counsel.” Tex. R. Civ. P. 269(e).

In this matter, both experts testified that they relied upon the same records

and that the records they relied upon were typically used by experts in their fields

making this type of evaluation. Both experts made comments during their

testimony concerning the veracity of records they reviewed. The trial court could

12
have reasonably concluded that the complained-of portion of the State’s closing

argument was a permissible summation of the evidence. Additionally, the court

gave a limiting instruction at trial, and a limiting instruction was also included in

the jury charge. We assume the jury followed the limiting instruction. Day, 342

S.W.3d at 199. We overrule Appellant’s second issue on appeal.

COMMITMENT QUESTIONS DURING VOIR DIRE

In Appellant’s third issue, he argues the trial court committed reversible

error by allowing the State to ask improper commitment questions during voir dire

and that the improper questions substantially affected the jury’s verdict. The first

question to the venire of which Appellant complains asked if they would have a

problem if an expert considered records generated by someone else in evaluating

whether someone has a behavioral abnormality. The second question of which

Appellant complains asked if the venire would have a problem if an expert was

paid. Appellant argues that the questions were improper because they asked “how

the venire persons would resolve the credibility of a witness based on particular

facts concerning the witness.” Appellant also argues that

The State received the benefit of their ill-gotten [] knowledge to
use peremptory strikes on the two jurors who would have had an issue
with [an] expert relying on records of others and being paid. The State
was also able to determine that no one else on the panel had any issues
related to their improper commitment questions and secure a jury,

13
 who for the most part, expressed no issue with their improper
inquiries.

Appellant then argues that, because a civil commitment case such as this is “a

classic battle of the experts[,]” credibility of the witnesses is particularly important,

and through the use of improper commitment questions, the State was able “to

remove potential jurors who would have evaluated the expert testimony on items

the State found troublesome in comparison to [the defendant’s] expert witness.”

Appellant argues that this substantially affected the jury’s verdict and caused the

rendition of an improper verdict.

A person is disqualified from jury service if he “has a bias or prejudice in

favor of or against a party in the case[.]” See Tex. Gov’t Code Ann. § 62.105(4)

(West. 2013). “Voir dire examination protects the right to an impartial jury by

exposing possible improper juror biases that form the basis for statutory

disqualification.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749 (Tex.

2006) (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554

(1984)). During voir dire, the parties and the court may pose questions to potential

jurors to discover biases or prejudices. Id. at 750. We review a trial court’s rulings

concerning voir dire for an abuse of discretion. In re Commitment of Hill, 334

S.W.3d 226, 228-29 (Tex. 2011); Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705,

709 (Tex. 1989); In re Commitment of Larkin, 161 S.W.3d 778, 780 (Tex. App.—
14
Beaumont 2005, no pet.). “[A] court abuses its discretion when its denial of the

right to ask a proper question prevents determination of whether grounds exist to

challenge for cause or denies intelligent use of peremptory challenges.” Babcock,

767 S.W.2d at 709.

“Commitment questions ‘commit a prospective juror to resolve, or to refrain

from resolving, an issue a certain way after learning a particular fact.’” Lydia v.

State, 109 S.W.3d 495, 498 (Tex. Crim. App. 2003) (quoting Standefer v. State, 59

S.W.3d 177, 179 (Tex. Crim. App. 2001)).1 “The substance of a question, not its

form, determines whether it probes for prejudices or previews a probable verdict.”

Vasquez, 189 S.W.3d at 757-58. The two-step inquiry to determine whether a voir

dire question calls for an improper commitment asks:

. . . (1) Is the question a commitment question, and (2) Does the
question include only those facts that lead to a valid challenge for
cause? Standefer, 59 S.W.3d at 182. If the answer to the first question
is “yes” and the answer to the second question is “no,” then the
question asked is an improper commitment question. Id. at 182-183.

Lydia, 109 S.W.3d at 497-98. Not all commitment questions are improper. See,

e.g., Hill, 334 S.W.3d at 228-29 (commitment question was not improper because

“[t]he ‘commitment’ that the potential jurors were asked to make was legislatively

1
“[T]he statutory standards for bias or prejudice in civil and criminal cases
are the same, [and] voir dire standards should remain consistent.” Hyundai Motor
Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006).
15
mandated: they were asked whether they would require the state to prove both

elements of a conjunctive statute.”). We consider the voir dire as a whole when

determining whether a question constitutes an improper commitment question. See

Halprin v. State, 170 S.W.3d 111, 119 (Tex. Crim. App. 2005); In re Commitment

of Robertson, No. 09-09-00307-CV, 2010 Tex. App. LEXIS 7421, at *18 (Tex.

App.—Beaumont Sept. 9, 2010, pet. denied) (mem. op.).

During voir dire, while addressing “the credibility and testimony of . . . an

expert psychiatrist or psychologist,” the State asked the venire “Would anyone

have a problem with a doctor doing this type of evaluation looking at records that

were generated by someone else?” Appellant objected on the basis that the

question called for improper commitment, and the court overruled the objection.

After additional questions to the venire, the State asked “Would anyone have an

issue with an expert witness being compensated for the time that he or she spent

doing an evaluation and testifying?” Appellant objected on the basis that the

question called for an improper commitment, and the State responded that “I’m not

asking what their verdict would be on that set of facts.” The court overruled the

objection.

Appellant contends that the two complained-of questions by the State to the

venire were commitment questions because they asked the potential jurors to

16
resolve an issue in a certain way after hearing a particular fact. Specifically,

Appellant argues that “[t]he issue to be resolved based on these particular facts are

[sic] the same, the credibility of the expert witness.” After reviewing the whole

record, we cannot say that the trial court erred in overruling the objections. The

trial court could have reasonably concluded that the questions were proper

“attempts to discover a venire[person]’s preexisting bias or prejudice.” Sanchez v.

State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). Moreover, in this case, both

parties’ experts relied on records or documents generated by others and both

parties’ experts were paid. Therefore, any possible bias these questions might have

revealed would not necessarily benefit or prejudice one party over the other. On

this record, we conclude that the trial court did not abuse its discretion in allowing

the voir dire questions. Issue three is overruled.

REBUTTAL WITNESS

In his fourth issue, Appellant argues that the trial court erred by allowing the

State to call Dr. Co Nguyen (Nguyen or Dr. Nguyen), a treating physician, as a

rebuttal witness to testify regarding the physical mobility and capacity of Sells.

Appellant explains that the State failed to disclose Dr. Nguyen during discovery

and did not establish good cause or lack of unfair surprise or prejudice for the

failure to timely designate Dr. Nguyen as a witness.

17
 At trial, when the State called Dr. Nguyen to testify during its case in chief,

Appellant objected on the basis that the State had not timely designated him as a

person with knowledge or as a potential witness or expert witness and also

objected on the basis of doctor-patient privilege under Rule 509 of the Texas Rules

of Evidence.2 The State responded that under Rule 193.6 of the Texas Rules of

Civil Procedure, “the witness can still testify if not timely identified if it would not

unfairly surprise or unfairly prejudice the other party.” The State further explained

that calling Dr. Nguyen should not create surprise because Nguyen was the

defendant’s treating physician, an affidavit by Dr. Nguyen was attached to a

motion for sanctions3 that the State had filed in this case, and Appellant knew

“about this witness from the medical records.” The State further explained that Dr.

Nguyen was a rebuttal witness and that “under the docket control order the

requirements about identifying persons with knowledge of relevant facts does not

include rebuttal witnesses[.]”The State also explained that it intended to limit

questioning of Dr. Nguyen to “issues that were brought up during the cross-

examination of Dr. Gaines about Mr. Sells’ physical condition.”
2
In this section of the Memorandum Opinion, we address only Appellant’s
argument and issue relating to the alleged failure to disclose Dr. Nguyen. We
address Appellant’s argument concerning doctor-patient privilege in a subsequent
section of our opinion.
3
The motion for sanctions is not included in the appellate record.
18
 The court asked whether Appellant had filed any requests for disclosure.

Appellant replied that he had; and, the State responded that it sent responses to the

request for disclosure but the State had not identified Dr. Nguyen as a person with

knowledge of relevant facts. The court allowed the attorneys time to prepare

argument on the objections and told Dr. Nguyen he could leave but that he should

be available to return. The court also stated it would address arguments the

following morning “before Dr. Saunders testifies; however, if we use a rebuttal

witness, then he cannot be expected to know what it is that he’s totally related to

until Dr. Saunders testifies. It’s a very interesting conundrum.”

The following morning and after the State rested, Dr. Saunders, the

defendant’s expert witness testified, after which the State again called Dr. Nguyen

as a rebuttal witness. The court asked whether Nguyen was “a rebuttal witness

purely[]” and the State agreed. The State further explained that Dr. Saunders had

testified regarding Sells’s mobility and that the State intended to ask Dr. Nguyen

“to address that point[]” and to ask about “mobility issues, heart disease, his

diabetes or the current status of that.” Appellant responded that Dr. Saunders was

not the only witness to testify concerning the defendant’s mobility issues but that

the State’s own expert also addressed this issue and that because the State had

obtained affidavits from Dr. Nguyen prior to trial, the State could not argue that his

19
testimony could not have been anticipated. Finally, the State responded that the

“the penalty for not identifying someone is they can’t testify except for a rebuttal

fact witness.” The State argued that Dr. Nguyen would be a “rebuttal fact

witness[,]”and that Dr. Nguyen’s testimony would “rebut some claims that were

made in Dr. Saunders’ testimony[]” concerning the defendant’s mobility. The court

asked the parties whether Dr. Saunders addressed the defendant’s mobility,

diabetes, and physical conditions in his deposition, and the parties agreed that he

addressed Appellant’s physical condition.4 The court allowed Dr. Nguyen to testify

solely as a rebuttal witness, explaining as follows:

. . . I have written down up here, listening to the discussion and
asking questions and someone has never really clarified for me the --
the information anymore in Dr. Saunders’s earlier testimony. I had -- I
did not use the word “lift.” I had the issues of transfer, of mobility.
The lifting is a physical condition, to lift. The heart disease is a
physical issue relating to mobility probably and lifting and for those
limited purposes I will allow you the rebuttal witness but not more.
....

. . . The -- I will repeat generally and I’m not trying to craft
your questions. The area of inquiry has to do with mobility, moving in
and out of a room, transferring oneself, transferring to bed, that global
area. I’m not trying to typecast, but that was an issue about his
capacity. His capacity also deals with the ability to lift. And the -- also
the other capacity would be the heart disease would be impacting the
physical capacity to do these things. Okay?

4
The appellate record does not include deposition transcripts of any witness.
20
 Dr. Nguyen then testified that Appellant is able to move about in his

wheelchair without assistance and he moves from his wheelchair to a bed with his

“remaining arm.” Dr. Nguyen said that he had not seen Appellant lifting objects.

Nguyen also testified that Appellant does not have any issues with his heart that

affect his mobility.

Rule 193.6 of the Texas Rules of Civil Procedure provides that when a party

fails to timely identify a witness, that party may not offer the testimony of that

witness unless the court finds that (1) there was “good cause” for the failure to

timely identify, or (2) the failure “will not unfairly surprise or unfairly prejudice

the other [party].” Tex. R. Civ. P. 193.6(a). The burden of demonstrating good

cause or the lack of unfair surprise and unfair prejudice is on the party seeking to

call the unidentified witness. Id. 193.6(b). Additionally, a trial court’s finding of

good cause or the lack of unfair surprise and unfair prejudice must be supported by

the record. Id.

Under Rule 192.3(d), a party is not required to disclose in discovery the

identity of “rebuttal or impeaching witnesses the necessity of whose testimony

cannot reasonably be anticipated before trial.” Id. 192.3(d). The Texas Supreme

Court has held that the fact that a nondisclosed witness was called only as a

rebuttal or impeachment witness may under certain circumstances constitute good

21
cause for the failure to disclose. See Aluminum Co. of Am. v. Bullock, 870 S.W.2d

2, 4 (Tex. 1994) (holding under prior rule that party met its burden of showing

good cause for failure to identify rebuttal expert due to material and unanticipated

change in testimony of opposing expert). However, the burden remains on the

party seeking to call the undisclosed witness, and the record must still demonstrate

good cause. See id.; Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 916-17 (Tex.

1992) (op. on reh’g). The mere fact that a witness is called “in rebuttal” does not

mean that the witness does not have to be disclosed. See, e.g., Alvarado, 830

S.W.2d at 916 (a “tactical decision” prior to trial to call an undisclosed witness on

rebuttal was not good cause for failing to comply with discovery); Melendez v.

Exxon Corp., 998 S.W.2d 266, 276 (Tex. App.—Houston [14th Dist.] 1999, no

pet.) (trial court did not err in excluding evidence of rebuttal witness for

nondisclosure). A rebuttal witness should be disclosed if the need to call that

witness reasonably should have been anticipated. Moore v. Mem’l Hermann Hosp.

Sys., Inc., 140 S.W.3d 870, 875 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

The trial court’s decision to admit or exclude evidence is reviewed under an

abuse of discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial

court abuses its discretion when it acts without regard to the guiding rules or

principles governing the admission of evidence, or if its decision to admit evidence

22
is shown to have been arbitrary or unreasonable. See Downer, 701 S.W.2d at 241-

42. A party seeking to reverse a judgment based on evidentiary error must prove

that the error probably resulted in an improper judgment. Tex. R. App. P. 44.1; see

also Interstate Northborough P’Ship v. State, 66 S.W.3d 213, 220 (Tex. 2001);

City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The

complaining party must show that the judgment turned on the particular evidence

that was excluded or admitted. Interstate Northborough P’ship, 66 S.W.3d at 220.

In making this determination, we review the entire record from the proceedings

below. See Alvarado, 897 S.W.2d at 754.

Assuming without deciding that the State did not make its required showing

and that admitting Nguyen’s testimony was in error, Appellant has not shown that

the judgment turned on the particular evidence excluded or admitted. See Interstate

Northborough P’ship, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54. In his

appellate brief, Appellant asserts a conclusory statement that he “was harmed by

[Nguyen’s] testimony and that harm caused the rendition of an improper verdict.”

However, Appellant fails to explain how the testimony in question affected the

judgment.

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 Dr. Gaines testified that the defendant’s mobility was “a little bit less” than

it was when he was charged with sexual offenses in 2000. She also testified that his

medical diagnoses

. . . do not alter [her] opinion. Mr. Sells’ major medical problem
is that he doesn’t have two legs and he doesn’t have an arm. That’s his
major impairing physical condition. That physical condition was
present when he offended against [his grandchild] in 2000. That
physical condition was present when he assaulted two police officers,
resisted arrest, and burglarized. . . .

Dr. Saunders testified that Sells

. . . has had limitations in his behavior, in his ability to do
certain things or perform certain things physically, that there has -- for
instance, he can -- he can no longer lift things and has more difficulty
ambulating or what we refer to as transfer from, for instance, his -- his
chair to his bed. . . .

Based on the record as a whole, we cannot say that Dr. Nguyen’s testimony misled

the jury and probably resulted in an improper verdict. We overrule the appellant’s

fourth issue.

PHYSICIAN-PATIENT PRIVILEGE

In his fifth issue, Appellant argues that the trial court erred by allowing his

treating physician, Dr. Nguyen, to testify because his physician’s testimony was

protected as privileged under Texas Rule of Evidence 509. The State argues that

Appellant extinguished the physician-patient privilege by putting his own medical

condition at issue in his defense and that “[t]he Rules of Evidence and the
24
offensive use doctrine both allowed the State to call Sells’s treating physician to

rebut the claims Sells presented regarding the status of his health and his mobility.”

When the State first called Dr. Nguyen as a witness, Appellant objected on

the basis of Rule 509 of the Texas Rules of Evidence. In response, the State

explained that

. . . there is, of course, an exception under Texas Rule of
Evidence 509, subsection (e)(4), that applies to communication of
medical records that are relevant to an issue of the physical, mental or
emotional condition of a patient in any proceeding in which any part
relies upon the condition as a part of the party’s claim or defense. I
think pretty clearly the defense in the questions that were asked of Dr.
Gaines on cross-examination, through statements made in opening
statement has asserted in this case that Mr. Sells’ physical condition is
part of their defense that he does not have a behavioral abnormality.
Therefore, the physician/patient privilege would not apply to
questions about his physical condition that counsel has brought up in
this proceeding.
My intent is to really limit my questions of Dr. Nguyen to
issues that were brought up during the cross-examination of Dr.
Gaines about Mr. Sells’ physical condition. And so it’s our position
that this falls under an exception to the physician/patient privilege
under the Rules of Evidence. [5]

The State also argued that, under the offensive use doctrine,

. . . a party may not assert a privilege in order to withhold
evidence which would materially weaken or defeat the asserting
5
At trial, the State also argued that under section 841.142 of the Texas
Health and Safety Code, the attorney representing the State can exchange
information with the Texas Department of Criminal Justice and a prisoner’s
consent is not required for the exchange of information under this section of the
statute. See Tex. Health & Safety Code Ann. § 841.142 (West Supp. 2015).
25
 party’s claim. Sort of if you’re going to bring it up, then try to use the
privilege to prevent the other side from fairly addressing the issue,
that’s another exception to the physician/patient privilege.

The court overruled Appellant’s objection and permitted a running objection on the

basis of privilege.

Dr. Nguyen testified that he is a board-certified family physician and that he

has been the treating physician of Appellant in prison. According to Dr. Nguyen,

Appellant moves from his wheelchair to a bed with his “remaining arm[]” and he is

able to move around generally in his wheelchair without assistance. Dr. Nguyen

testified that he had not seen Appellant lifting objects, that a stress test of

Appellant in 2008 was “negative for any ischemia[],” and that Appellant does not

have any issues with his heart that affect his mobility.

According to Appellant, as the result of a train-pedestrian accident, the

Appellant had amputations of both legs and of his left arm. Dr. Gaines considered

the Appellant’s medical condition, including his amputations, in determining

whether Appellant has a behavioral abnormality. Dr. Gaines noted that Appellant’s

mobility had declined over time. But, she also testified that “Mr. Sells has done a

lot of really bad things as a triple amputee[]” and that his medical diagnoses do not

alter her overall opinion.

26
 Dr. Saunders testified that he regarded Appellant’s health status and his

resultant dependence on others as “a protective factor[]”and that Appellant’s

medical issues operate as “limitations in his behavior[]” that put him at “less risk

for being able to act out and [at] a greater risk to become more dependent on

others[.]” Saunders explained that Appellant has become more dependent on others

because of his health issues, and “he’s less likely to jeopardize that in the future”

and “he is going to be more protective of himself” in order to have access to

services. On cross-examination, however, Dr. Saunders agreed that Appellant has

committed both sexual and nonsexual offenses as a triple amputee.

Under the general rule, confidential communications between a physician

and patient are privileged and may not be disclosed. Tex. R. Evid. 509(c); Mutter

v. Wood, 744 S.W.2d 600 (Tex. 1988). The patient or his representative may claim

the privilege. Tex. R. Evid. 509(d). An exception to the general rule applies where

“any party relies on the patient’s physical, mental, or emotional condition as a part

of the party’s claim or defense and the communication or record is relevant to that

condition.” Id. 509(e)(4). In order for this exception to apply, two conditions must

be present: (1) the evidence sought to be admitted must be relevant to the condition

at issue; and (2) the condition must be relied upon as part of a party’s claim or

defense, “meaning that the condition itself is a fact that carries some legal

27
significance.” R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994) (orig.

proceeding). Mere relevance to a claim or defense is not enough: “to fall within the

litigation exception to the privilege, the condition itself must be of legal

consequence to a party’s claim or defense.” Id.; In re Doe, 22 S.W.3d 601, 609

(Tex. App.—Austin 2000, orig. proceeding).

. . . Communications and records should not be subject to
discovery if the patient’s condition is merely an evidentiary or
intermediate issue of fact, rather than an “ultimate” issue for a claim
or defense, or if the condition is merely tangential to a claim rather
than “central” to it. . . . As a general rule, a [patient’s] condition will
be a “part” of a claim or defense if the pleadings indicate that the jury
must make a factual determination concerning the condition itself.

R.K., 887 S.W.2d at 842-43; see also In re Christus Health Se. Tex., 167 S.W.3d

596, 602 (Tex. App—Beaumont 2005, orig. proceeding). Ordinarily, whether a

condition is a part of a claim or defense should be determined on the face of the

pleadings, without reference to the evidence that is allegedly privileged. R.K., 887

S.W.2d at 843 n.7.

The jury was asked to decide whether Appellant has a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

See Tex. Health & Safety Code Ann. § 841.003(a)(2) (West Supp. 2015). Both

experts considered the health status and physical limitations of Sells in determining

whether he has a behavioral abnormality. The Appellant’s own expert testified that

28
Appellant has health issues and physical disabilities that created limitations that

would make him less likely to reoffend, and he explained that such limitations

functioned as a “protective factor” that reduced his overall risk for reoffending. On

this record, the trial court could have reasonably concluded that when the

Appellant’s own expert testified that the health and physical limitations made it

less likely that Appellant would reoffend, Appellant put his health at issue as a

defense. Because under the facts of this case Dr. Nguyen’s testimony has “legal

consequence” to the jury’s determination of behavioral abnormality, the trial court

could have reasonably concluded that the exception in Rule 509(e)(4) applies to

overcome the physician-patient privilege, and the trial court did not abuse his

discretion in overruling the objection. See Tex. R. Evid. 509(e)(4). We overrule

appellant’s fifth issue.

CUMULATIVE ERROR

In his final issue, Appellant argues that reversal is required because of the

“cumulative effect of the errors in this case[,]” summarizing issues one through

five. The State argues there were no errors and no cumulative error.

Multiple errors, even if considered harmless when taken separately, may in

some instances result in reversal and remand if the cumulative effect of such error

is harmful. Jones v. Lurie, 32 S.W.3d 737, 745 (Tex. App.—Houston [14th Dist.]

29
2000, no pet.) (citing Tex. R. App. P. 44.1(a) and Owens-Corning Fiberglas Corp.

v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972

S.W.2d 35 (Tex. 1998)); see also Schreiber v. State Farm Lloyds, 474 S.W.3d 308,

318 (Tex. App.—Houston [14th Dist.] 2015, pet. filed). To reverse a judgment and

order a new trial, we must determine that the error committed by the trial court was

reasonably calculated to cause and probably did cause the rendition of an improper

judgment. Weidner v. Sanchez, 14 S.W.3d 353, 377-78 (Tex. App.—Houston [14th

Dist.] 2000, no pet.) (citing Fibreboard Corp. Pool, 813 S.W.2d 658, 695-96 (Tex.

App.—Texarkana 1991, writ denied); Tex. R. App. P. 44.1(a)). The appellant must

show, based on the record as a whole, that but for the alleged errors, the jury would

have rendered a verdict favorable to him. Id. at 378. Nevertheless, we are aware of

no authority holding that non-errors may, in their cumulative effect, cause error.

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); Bryant v.

State, 282 S.W.3d 156, 176 (Tex. App.—Texarkana 2009, pet. ref’d). In light of

our previous analysis overruling Appellant’s other issues, and based on the record

before us, we find no basis to support a cumulative error argument. Therefore, we

overrule Appellant’s sixth issue.

30
 Having overruled all issues on appeal, we affirm the trial court’s judgment

and order of commitment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on December 1, 2015
Opinion Delivered April 14, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.

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