in Re Commitment of Lester G. Talley

522 S.W.3d 742, 2017 WL 1536481, 2017 Tex. App. LEXIS 3833
Court of Appeals of Texas·Decided April 27, 2017·No. NO. 01-16-00572-CV·Published·Cited by 28 cases

Opinions

OPINION

Jane Bland, Justicé

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 á 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 as[745]*745sault 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 báse 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 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—
⅝ # ⅝
STATE: 28, 29, 31, 33, 34, 29, 46, 48, 54, 55
* * * $
STATE: 54, 55, 63, 66, 73, 76, 79
* ⅝ ⅜ ‡
[DEFENSE COUNSEL]: Okay. I think I’m ready. Should I do those in addition to the ones—I would be in agreement with—?
THE COURT: All those?
[DEFENSE COUNSEL]: Correct. But I have additional strikes as well.
THE COURT: Okay. Who are the additional?
[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.
⅛ ‡ & ⅛
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, 5⅜ '63, 66, 68, 71, 73, 76, 78, 79, and 80.
* ⅜ ⅜ *
[DEFENSE COUNSEL]: I would, request an additional ten peremptory [746]*746strikes from my challenges for cause that were denied.
THE COURT: Ten?
[DEFENSE COUNSEL]: Uh-huh. Yes, ma’am.
THE COURT: That will be denied.
# ⅞ * *
[DEFENSE COUNSEL]: Okay. So, but for my challenges for cause on Nos. 5, 8, 11, 20, 23, 24, 26, 50, 56 and 75,1 will be forced to use 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.
[[Image here]]

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 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 ve-nire 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.

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in Re Commitment of Lester G. Talley, 522 S.W.3d 742, 2017 WL 1536481, 2017 Tex. App. LEXIS 3833 (Tex. Ct. App. 2017).

522 S.W.3d 742 (in Re Commitment of Lester G. Talley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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