in Re Commitment of Lester G. Talley

Opinion issued April 27, 2017

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-16-00572-CV
———————————
IN RE COMMITMENT OF LESTER G. TALLEY

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 513958

OPINION

In this appeal from a civil commitment order, a jury unanimously found that
Lester G. Talley is a sexually violent predator as defined in the Texas Health and
Safety Code and therefore is subject to civil commitment. See TEX. HEALTH &
SAFETY CODE ANN. §§ 841.081–841.151. (West 2015). On appeal, Talley
contends that the trial court erred in (1) denying Talley’s challenges for cause to
six venire members; (2) admitting Talley’s written confession to rebut his
testimony; and (3) directing a verdict that Talley is a person who has been
convicted of more than one sexually violent offense and a sentence was imposed
for at least one of the offenses. Finding no error, we affirm.

BACKGROUND

In September 2015, the State sued Talley in Harris County, seeking a

determination that Talley is a sexually violent predator subject to civil

commitment. See TEX. HEALTH & SAFETY CODE ANN. § 841.081. Talley has four

previous convictions in Texas for the aggravated sexual assault of multiple

children, as well as convictions in Missouri for sexual assault and burglary. Talley

admitted to the Texas sexual assault convictions in response to requests for

admissions. Talley also admitted to his previous convictions during trial. Certified

copies of the convictions were introduced into evidence.

During jury selection, some of the venire members vacillated when asked

whether they could set aside any bias or prejudice after hearing evidence that a

person was a pedophile. Counsel asked:

[DEFENSE COUNSEL]: So, if you hear about sex offenses against
children and a sexual attraction to children, I just need to know, would
your feelings be so strong that you would not be able to base your
decision off the evidence and the law presented in court? And if you
could, just hold them up for me high.

****

[DEFENSE COUNSEL]: So if you hear that someone has been
diagnosed with pedophilia, would you be able to set aside any bias or
prejudice, listen to the evidence and follow the law? Or would your

2
 feelings be so strong you wouldn’t be able to hear anything else,
doesn’t matter what the State has to prove, that’s it, can’t do it.

Venire members 5, 8, 11, 23, 24, and 26 responded affirmatively to Talley’s

disjunctive question by raising their hands. The State objected that the questions

were improper commitment questions. The trial court then rephrased the question:

THE COURT: Okay. The question really is can you listen to all the
evidence and if you hear that somebody is a pedophile, not just use
that to answer the question.

Venire members 5, 8, 11, 23, 24, and 26 did not continue with their

affirmative response after the trial court rephrased the question. At the conclusion

of jury selection, the trial court granted some challenges for cause to the venire and

denied others:

THE COURT: I’m just looking for your challenges.

****

STATE: Okay. We have 2, 3, 4, 6, 10, 13, 16, 18, 19, 21—

****

STATE: 28, 29, 31, 33, 34, 29, 46, 48, 54, 55

****

STATE: 54, 55, 63, 66, 73, 76, 79

****

[DEFENSE COUNSEL]: Okay. I think I’m ready. Should I do those
in addition to the ones—I would be in agreement with—?

3
THE COURT: All those?

[DEFENSE COUNSEL]: Correct. But I have additional strikes as
well.

THE COURT: Okay. Who are the additionals?

[DEFENSE COUNSEL]: I would say No. 5, No. 8, No. 11, No. 20,
No. 23, 24, 26, 49, 50, 52, 56, 57, 58, 68, 71. Did we get 73? Did
y’all say that one?

THE COURT: Yes.

[DEFENSE COUNSEL]: Okay. 75 and 78 and 80.

****

THE COURT: The next one I have is 52. 52 is granted. Then 56. 56
is denied. 57 is granted. Then we move on to 58. 58 is granted.
Then 68. 68 is granted. 71 is granted. 75 is denied. 78 is granted
and 80 is granted. Okay. Let’s see where we are. Ok. I’m just going
to go through them so we’re all on the same page. Here’s who’s gone.
2, 3, 4, 6, 10, 13, 16, 18, 19, 21, 28, 29, 31, 33, 34, 39, 46, 48, 49, 52,
54, 55, 57, 58, 63, 66, 68, 71, 73, 76, 78, 79, and 80.

****

[DEFENSE COUNSEL]: I would request an additional ten
peremptory strikes from my challenges for cause that were denied.

THE COURT: Ten?

[DEFENSE COUNSEL]: Uh-huh. Yes, ma’am.

THE COURT: That will be denied.

****

[DEFENSE COUNSEL]: Okay. So, but for my challenges for cause
on Nos. 5, 8, 11, 20, 23, 24, 26, 50, 56 and 75, I will be forced to use
4
 my peremptory challenges on them and I would have stricken Nos. 7
and 12, 17, 25, 27, 30, 32, 35, 36, 37. And now I’m handing my list
to the clerk.

****
After the parties exercised their peremptory strikes, the trial court clerk seated the

jury, which included defense counsel’s objectionable jurors 17, 25, 27, 32, 36, and

37:

THE COURT: Ladies and gentlemen, the clerk is going to call out the
names of those of you who have been selected. . . .

THE CLERK: Juror No. 9, [name]; Juror No. 14, [name]; Juror No.
17, [name]; Juror No. 25, [name]; Juror No. 27, [name]; Juror No. 32,
[name]; Juror No. 36, [name]; Juror No. 37, [name]; Juror No 42,
[name]; Juror No. 43, [name]; Juror No. 44, [name]; Juror No. 45,
[name].

The case proceeded. During his testimony, Talley denied some of the facts

underlying his crimes. The State then sought to introduce Talley’s prior written

confession to impeach his in-court denials of facts described in the confession.

The State also proffered the confession to assist the jury in understanding the

expert testimony of Dr. Sheri Gaines, who relied on Talley’s description of his

criminal episodes in forming her opinion as to whether Talley has a behavioral

abnormality.

Talley objected to the introduction of the confession as unduly prejudicial.

The trial court first allowed the statement for the purpose of refreshing Talley’s

memory. But when Talley persisted in denying the admissions contained in the

5
confession after reading it silently, the trial court permitted the State to read the

confession into the evidence.

The jury found that Talley is a sexually violent predator.

DISCUSSION

On appeal from the civil commitment order, Talley raises three challenges.

First, he contends that the trial court erred in denying his challenges for cause to

members of the venire who indicated in response to general questioning of the

venire that they would not set aside any bias resulting from hearing evidence that

Talley has been diagnosed with pedophilia or a sexual attraction to children.

Second, Talley contends that the trial court erred in allowing his confession

relating to his earlier convictions to be read aloud to the jury. Third, he contends

that the trial court erred in directing a verdict as to the statutory requirement that

the State show that he had been convicted of more than one sexually violent

offense and a sentence was imposed for at least one of the offenses.

I. Jury Selection

A. Standard of Review and Applicable Law

A party may challenge a prospective juror for a disqualifying bias under

Texas Rule of Civil Procedure 504.2:

A party may challenge any juror for cause. A challenge for cause is
an objection made to a juror alleging some fact, such as a bias or
prejudice, that disqualifies the juror from serving in the case or that
renders the juror unfit to sit on the jury.

6
TEX. R. CIV. P. 504.2.

The challenge alone, however, does not preserve for appellate review a

complaint from the trial court’s denial of a challenge for cause. Rather, to preserve

error when the trial court denies a challenge for cause, the objecting party must use

a peremptory challenge against the challenged venire member, exhaust any

remaining challenges, and notify the trial court that a specific objectionable venire

member will remain on the jury list. Cortez, 159 S.W.3d 87, 90–91 (Tex. 2005);

Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888, 890 (Tex. 1985).

We review rulings on challenges for cause to venire members for abuse of

discretion, in light of the entire jury selection. Cortez, 159 S.W.3d at 92–93. A

trial court abuses its discretion in denying a challenge for cause when it acts

arbitrarily and unreasonably, without reference to guiding rules or principles, or

when it misapplies the law to the established facts of the case. Beaumont Bank,

N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

“Bias, in its usual meaning, is an inclination toward one side of an issue . . .

but to disqualify, it must appear that the state of mind of the juror leads to the

natural inference that he will not or did not act with impartiality.” Cortez, 159

S.W.3d at 94. The relevant inquiry is not where jurors start but where they are

likely to end—whether they can put any bias aside, follow the court’s instructions,

and render a verdict based on the evidence presented. See id. A juror’s expression
7
that is subject to more than one interpretation, or a juror’s equivocation or

uncertainty about a potential bias, is not a ground for disqualification. See Silsbee

Hosp., Inc. v. George, 163 S.W.3d 284, 295 (Tex. App.—Beaumont 2005, pet.

denied); Cortez, 159 S.W.3d at 92–93.

B. Analysis

At the outset, we note that Talley properly preserved his jury selection

complaint for appellate review. After the trial court denied Talley’s challenges for

cause to certain venire members, Talley used his preemptory strikes to strike these

members from the jury. He then identified venire members 7, 12, 17, 25, 27, 30,

32, 35, 36, 37 as objectionable jurors whom he would have struck from the panel

had the trial court granted his challenges for cause. Because several of these

objectionable venire members served on the jury, Talley has preserved this

complaint for our review. See Cortez, 159 S.W.3d at 92–93.

Talley complains that the trial court erroneously denied his challenges for

cause to venire members 5, 8, 11, 23, 24, 26, and 56. These jurors indicated that

they would have a bias against a person who was diagnosed with pedophilia.

Talley’s diagnosis was a relevant fact, however, and would be introduced as

evidence in the case. After the trial court instructed the jury about its obligation to

listen to and consider all of the evidence, these venire members, save member 56,

indicated that they could follow the trial court’s instruction to consider all of the

8
evidence presented. The affirmative responses of these venire members to Talley’s

question thus did not indicate a disqualifying bias. See Cortez ex rel. Estate of

Puentes, 159 S.W.3d at 94 (holding that venire members should not be disqualified

for cause based on questions that seek “an opinion about the evidence”); see also

Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 752 (Tex. 2006) (explaining that

in responding to questions about isolated facts, “jurors are unable to consider other

relevant facts that might alter their responses, rendering their responses

unreliable.”). Accordingly, we hold that the trial court acted within its discretion

in denying counsel’s challenges for cause to these jurors.

After the court rephrased the question, venire member 56 was among those

who indicated reservations.

THE COURT: Anybody who that is—that is the end-all to be-all
decision-making point? If you hear somebody’s a pedophile, then
they must have been convicted and that they—and that they have a
behavioral abnormality as defined.

****

[DEFENSE COUNSEL]: I’ve got 44, 45, 58, 63, 66, 47, 49, 52, 54,
55, 56, 57. Sorry. I went out of order. I saw numbers starting to
drop.

Venire member 56, however, had responded to earlier questions that she could set

aside any bias regarding her personal experiences and Talley’s prior convictions

and evaluate the evidence fairly. In determining whether a trial court abused its

discretion, we examine the entire jury selection. Cortez, 159 S.W.3d at 92–93. The
9
parties did not further follow up with venire member 56 individually to determine

whether she no longer could fairly consider the case. The trial court was in the

best position to evaluate the venire member’s answers and determine whether the

juror could fairly consider the evidence presented. Because the record

demonstrates that venire member 56 gave equivocal responses as to whether she

harbored a disqualifying bias, we hold that the trial court acted within its discretion

in denying Talley’s challenge for cause. See id.

II. Admission of Evidence

Talley challenges the admission of his confession in a previous criminal case

on the ground that its probative value is substantially outweighed by the risk of

unfair prejudice. The State responds that the confession was admissible for

impeachment purposes and as part of the underlying facts that its expert relied

upon in forming her opinion testimony in the case.

A. Standard of Review and Applicable Law

We review evidentiary rulings using an abuse of discretion standard. Harris

Cty. v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex. App.—Houston [1st Dist.] 2006,

no pet.); Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998). Under Texas Rule of Evidence 705, an expert may disclose the underlying

facts or data upon which the expert bases his or her opinion if it is of a type relied

upon by experts in the field in forming opinions on the subject. See TEX. R. EVID.

10
705; In re Commitment of Alvarado, 09-13-00217-CV, 2014 WL 1285136, at *11

(Tex. App.—Beaumont Mar. 27, 2014, pet. denied) (mem. op.). But the expert’s

disclosure of these facts and data is subject to the same relevancy constraints that

govern the admission of other kinds of evidence. See TEX. R. EVID. 705(d) (“If the

underlying facts or data would otherwise be inadmissible, the proponent of the

opinion may not disclose them to the jury if their probative value in helping the

jury evaluate the opinion is outweighed by their prejudicial effect.”); see also TEX.

R. EVID. 403.

Evidence about the facts underlying previous sexual assaults is admissible in

civil commitment cases when it assists the jury in understanding an expert’s

testimony that the person has a behavioral abnormality, which is the ultimate issue

that the jury must determine. In re Commitment of Stuteville, 463 S.W.3d 543, 556

(Tex. App.—Houston [1st Dist.] 2015, pet. denied) (“The trial court could have

reasonably concluded that the facts and details related to Stuteville’s offenses

would be helpful to the jury in weighing his testimony and Dr. Clayton’s

testimony, and in explaining the basis for Dr. Clayton’s opinion that Stuteville

suffers from a behavioral abnormality.”); Alvarado, 2014 WL 1285136, at *11

(“The State’s experts identified many risk factors for Alvarado to reoffend with a

sexually violent offense, and the experts’ explanation of the factors required

information about the details surrounding the offenses. The State therefore could

11
establish a need for the basis evidence, and any tendency of the jury to give undue

weight to the evidence was mitigated by the limiting instructions.”); In re

Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet.

denied); (“We hold the trial court acted within its discretion in allowing the experts

to discuss the details of the offenses and other bad acts committed by Day that are

contained in the records they reviewed.”).

B. Analysis

Talley’s confession contained his statements describing his previous

offenses. Dr. Sheri Gaines, the expert witness for the State, testified that she relied

on the confession to form her opinion that Talley possessed a behavioral

abnormality, together with Talley’s other previous statements, police records,

victim statements, medical records, and prison records. Gaines concluded that

Talley displayed the risk factors for a behavioral abnormality, given the number of

victims, the gender and age range of victims, minimization or denial of details of

his past offenses, and his assaults against multiple child victims at the same time.

The facts and details contained in the confession were important to demonstrate the

basis for Dr. Gaines’s determination that Talley displayed sexually deviant

behaviors, including that he had numerous child victims and had admitted to

uncharged offenses and that he minimized or denied details of his offenses in his

interview with her and at trial.

12
 Talley challenged the veracity of the support for Dr. Gaines’s opinion by

denying some of the facts that Dr. Gaines relied upon in forming her opinion that

Talley had a behavioral abnormality. Because the facts of the previous sexual

assaults contained in the confession assisted the jury in understanding Gaines’s

expert testimony that Talley had a behavioral abnormality, and Talley placed the

veracity of those facts at issue during the trial, the confession had probative value

that the trial court reasonably could have concluded outweighed the risk of unfair

prejudice. Accordingly, we hold that the trial court did not abuse its discretion in

admitting it over Talley’s objection. See Alvarado, 2014 WL 1285136, at *11;

Day, 342 S.W.3d at 199; (“We hold the trial court acted within its discretion in

allowing the experts to discuss the details of the offenses and other bad acts

committed by Day that are contained in the records they reviewed.”); Stuteville,

463 S.W.3d at 556 (“Based on this record, the trial court could have reasonably

concluded that the facts and details related to Stuteville’s offenses would be

helpful to the jury in weighing his testimony and Dr. Clayton’s testimony, and in

explaining the basis for Dr. Clayton’s opinion that Stuteville suffers from a

behavioral abnormality.”).

13
III. Directed Verdict

A. Standard of Review and Applicable Law

Chapter 841 of the Health and Safety Code grants a defendant in a sexually

violent predator case a right to a jury trial. See TEX. HEALTH & SAFETY CODE

ANN. § 841.061(b). A civil commitment proceeding is subject to the rules of

procedure and appeal for civil cases. See id. § 841.146(b). When Chapter 841 and

the rules of civil procedure conflict, the statutory provisions prevail. Id.

The Rules of Civil Procedure provide for a directed verdict. See TEX. R.

CIV. P. 268. We review the grant of a directed verdict in the light most favorable

to the party against whom the verdict was rendered and disregard all contrary

evidence and inferences. See Qantel Bus. Sys., Inc. v. Custom Controls, 761

S.W.2d 302, 303 (Tex. 1988); Smith v. Radam, Inc., 51 S.W.3d 413, 417 (Tex.

App.—Houston [1st Dist.] 2001, no pet.); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473,

476 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Partial directed verdicts

are a mechanism for removing parts of a case from the factfinder. See Johnson v.

Swain, 787 S.W.2d 36, 37 n.1 (Tex. 1989).

In a civil commitment proceeding under Chapter 841, the only fact issue for

the jury to determine is whether the person has a behavioral abnormality. In re

Commitment of Bohannan, 388 S.W.3d 296, 305 (Tex. 2012). Absent evidence

that challenges the evidence that the defendant has been convicted of more than

14
one sexually violent offense and for which a sentence was imposed for one of

them, a person’s status as a sexually violent offender is a legal determination

appropriate for partial directed verdict. See In re Commitment of Scott, No. 09-11-

00555-CV, 2012 WL 5289333, at *2 (Tex. App. Oct. 25, 2012) (mem. op.) (there

was no fact question for jury to decide with respect to status as a repeat sexually

violent offender, thus “trial court did not err by granting a directed verdict on this

element.”); In re Commitment of Martinez, 09-12-00452-CV, 2013 WL 5874583,

at *5 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.) (same); Alvarado,

2014 WL 1285136, at *13 (same).

Texas Rule of Civil Procedure 198.3 provides that a matter admitted in

response to a request for admission “is conclusively established as to the party

making the admission unless the court permits the party to withdraw or amend the

admission.” See TEX. R. CIV. P. 198.3.

B. Analysis

Talley does not contest that he is a repeat sexually violent offender, but

relies upon section 841.062 to argue that each element of a determination that a

person is a sexually violent predator must be reached by a jury verdict. He

contends that the prohibition on directed verdicts against defendants in criminal

cases carries over to civil commitment proceedings, and thus a jury must establish

this fact whether or not it is contested. See TEX. HEALTH & SAFETY CODE ANN.

15
§ 841.062(a) (West 1999) (“The judge or jury shall determine whether, beyond a

reasonable doubt, the person is a sexually violent predator.”). The Texas Supreme

Court, however, has rejected this reading of the statute. See Bohannan, 388

S.W.3d at 305 (holding that only fact issue to be resolved by the factfinder is

whether a person has behavioral abnormality); see also Scott, 2012 WL 5289333,

at *2 (holding that “[t]he existence of Scott’s prior convictions and sentences for

more than one sexually violent offense was conclusively established by the

testimony . . . . Therefore, there was no fact question for the jury to decide with

respect to Scott’s status as a repeat sexually violent offender, and the trial court did

not err in granting a directed verdict on this element.”).

Talley admitted to multiple convictions of aggravated sexual assault of a

child and to his corresponding prison sentences in response to the State’s requests

for admissions. He also admitted to these convictions and sentences at trial, and

the State introduced the records establishing the convictions and sentences.

Because Talley admitted to his repeat offender status in his pleadings, this element

was conclusively established and not a contested issue for the jury to determine.

See TEX. R. CIV. P. 198.3; see also Bryant v. State, 187 S.W.3d 397, 400 (Tex.

Crim. App. 2005) (holding that stipulation to previous convictions was “a kind of

judicial admission” that “ha[s] the effect of withdrawing a fact from issue and

16
dispensing wholly with the need for proof of the fact.”) (citing John W. Strong, et

al., 2 MCCORMICK ON EVIDENCE § 255 (5th ed. 1999)).

Talley admitted his status as a repeat sexually violent offender. The State

proffered evidence that supported Talley’s admission. Accordingly, we hold that

no fact question existed for the jury to decide as to Scott’s status, and the trial court

did not err by granting a directed verdict on this element. See id; Bohannan, 388

S.W.3d at 305; Martinez, 2013 WL 5874583, at *5; Alvarado, 2014 WL 1285136,

at *13.

CONCLUSION

We affirm the judgment of the trial court.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Jennings, J., dissenting.

17