in Re Commitment of Lloyd Alexander

• Court: Court of Appeals of Texas
• Decided: September 26, 2013
• Docket: 09-11-00650-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00650-CV ____________________

IN RE COMMITMENT OF LLOYD ALEXANDER

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-05-05227 CV ________________________________________________________ _____________

MEMORANDUM OPINION

The State of Texas filed a petition seeking the civil commitment of Lloyd

Alexander as a sexually violent predator. See Tex. Health & Safety Code Ann. §§

841.001.-151 (West 2010 & Supp. 2012) (SVP statute). A jury found that

Alexander is a sexually violent predator; subsequently, the trial court signed a final

judgment and an order of civil commitment. In his appeal, Alexander challenges

rulings by the trial court regarding jury selection, cross-examination, and closing

argument. Finding no reversible error, we affirm the trial court’s judgment.

1 Background

Before Alexander was released from prison, the State filed a petition for

civil commitment alleging that Alexander was a repeat sexually violent offender

based on his 1995 conviction for sexual assault of a child and his three previous

convictions for indecency with children involving sexual contact. The evidence

presented during Alexander’s civil commitment trial included testimony by experts

who diagnosed Alexander as a pedophile, as well as their testimony that Alexander

suffers from a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence.

Jury Selection

In issue one, Alexander complains that during voir dire, his attorney was not

permitted to question potential jurors about whether they could be fair on any types

of sex cases. In issue two, Alexander contends the trial court, during a pretrial

conference, ordered Alexander’s attorney to refrain from asking prospective jurors

about pedophilia.

The Texas Supreme Court has specifically stated in a sexually violent civil

commitment case that “[l]itigants have the right to question potential jurors to

discover biases and to properly use peremptory challenges.” In re Commitment of

Hill, 334 S.W.3d 226, 228 (Tex. 2011). At the same time, trial courts are allowed

2 to exercise reasonable control over voir dire; therefore “refusals to allow lines of

questioning during voir dire are reviewed under an abuse of discretion standard.”

Id. at 228-29. An abuse of discretion occurs if the “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 v. Nw. Mem’l

Hosp., 767 S.W.2d 705, 709 (Tex. 1989). To preserve error when the trial court

refuses to allow proper questions, the record must show the party made “a timely

request to the trial court, stating the specific grounds for the ruling [the party]

desired, and [that the party] obtained a ruling from the court.” Id. at 708.

With respect to Alexander’s claim that the trial court improperly restrained

his attorney from questioning the panel about whether they might not be fair on

any type of sex case, the record reflects that the trial court corrected Alexander’s

counsel when she referred to the proceeding when questioning the prospective

jurors as “a sex case.” The trial court expressed concern that referring to the civil

commitment proceeding as a “sex case” would confuse the jury about whether the

case being heard was a civil or a criminal proceeding. When Alexander’s attorney

explained to the prospective jurors that “[m]ost of the evidence and the testimony

that you’re going to be hearing in this case will relate to sexual matters[,]” the

record shows that Alexander’s attorney asked:

3 Is there anybody here who would feel uncomfortable sitting in a group with 11 other people talking about sex matters and using explicit sex terms, whether it’s penis or vagina or whether it’s oral sex or anal sex, whatever words need to be discussed to deliberate the case, is there someone here who can’t make that discussion, who couldn’t be part of that discussion or deliberation because you’re uncomfortable using explicit sexual language and anatomical terms? Raise your hand if you would be uncomfortable and could not deliberate so that I will know.

After questioning a juror who responded to that question, Alexander’s

attorney asked:

Okay. Let me ask you this: Is there any kind of a -- is there any kind of a sex case, if you were sitting to deliberate on a sex case that you could not deliberate on without having such a strong bias that you would be an unfair juror? Let’s identify, is there anything or could you all sit on any kind of sex case if you were called as a juror on a sex case?

At that point, the trial court stated:

Now, [counsel], I want you to talk about these cases, not about all different types of sex cases that are out there, because this is not a criminal matter. This is a civil matter. I don’t want you to start to get into other things that aren’t really relevant to this case. Okay? Let’s talk about behavioral abnormality and their qualifications in this type of jury trial. Okay?

According to Alexander, his question was proper because the question was

designed to discover which of the potential jurors had a deep-seated animus toward

pedophiles. He claims that by not being allowed to question about sex cases

generally, the trial court prevented him from intelligently using his peremptory

challenges. See Hill, 334 S.W.3d at 228; In re Commitment of Miller, No. 09-11- 4 00450-CV, 2012 WL 3031160, at *1-2 (Tex. App.—Beaumont July 26, 2012, pet.

denied) (mem. op.) (“‘Can you set aside any bias if you find there’s an offense

against a child? Can you listen to all the evidence and follow the law?’” and “‘Is

anyone unable to hear topics about children? Can you listen to the evidence and

follow the law?’”); In re Commitment of Kalati, 370 S.W.3d 435, 440 (Tex.

App.—Beaumont 2012, pet. denied) (“Would anybody on the first row find it hard

to give someone who has been diagnosed by an expert as a pedophile a fair trial?”).

With respect to the issue of questioning the panel generally on sex cases, the

record shows that the court merely asked counsel not to use an informal, general,

and potentially misleading term—“sex case”—when referring to a civil

commitment proceeding. The trial court’s request did not restrict Alexander’s

ability to question the potential jurors about their animus toward pedophiles or

from determining whether the potential jurors could set aside such prejudice,

follow the jury instructions, and give Alexander a fair trial. Moreover, Alexander’s

attorney never asked the trial court to allow her to question the potential jurors

Trial courts are allowed to exercise discretion to prevent a party from asking

questions that are not proper questions. See Hill, 334 S.W.3d at 228-29. The trial

court perceived the question at issue as one that had a tendency to create confusion

5 among the panelists. We hold the trial court exercised reasonable control over the

line of questioning at issue, and that it did not abuse its discretion because it did

not prevent Alexander from questioning the panel on pedophilia. Id. We overrule

issue one.

In issue two, Alexander complains that the trial court made a pretrial ruling

that prevented his attorney from asking proper questions about pedophilia. Before

jury selection began, counsel for the State expressed a concern that Alexander’s

counsel would discuss Alexander’s pedophilia during jury selection. Alexander’s

counsel informed the trial court, “Your Honor, I have no intention to use the word

‘pedophile.’” In the pretrial conference, the trial court asked that counsel not talk

about the evidence in the case, but warned that “you’ll just have to make your

objections and she’ll have to do her voir dire as she sees proper and I’ll have to

make my rulings . . . .” The trial court added, “But it’s my feeling that a jury, we

don’t allow them to preview the evidence prior to trial and that if we talk about

pedophilia that that essentially almost invites a riot on the part of the jury.” The

trial court explained that “pedophilia is against the law and, as I said, it can be a

basis for somebody having a behavioral abnormality.” After more discussion, the

trial court asked Alexander’s counsel what questions she planned to ask. Counsel

informed the trial court, “I’m not going to say anything about pedophilia, Your

6 Honor.” Counsel added that she intended to voir dire the members of the venire

about whether any of them had been victimized. The trial court told counsel such

questions would be permitted. Counsel informed the trial court that was all she

intended to ask on the subject.

“If the voir dire includes a preview of the evidence, . . . a trial court does not

abuse its discretion in refusing to allow questions that seek to determine the weight

to be given (or not to be given) a particular fact or set of relevant facts.” Hyundai

Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006); see also In re

Commitment of Barbee, 192 S.W.3d 835, 846 (Tex. App.—Beaumont 2006, no

pet.). However, “a trial court should not foreclose all inquiry about a relevant

topic.” Hyundai, 189 S.W.3d at 758. For example, in Hill the trial court erred

because it suspended an entire line of questioning and did not allow counsel to ask

the panel specific questions about Hill’s sexual history after several members of

the venire expressed bias against homosexuality. 334 S.W.3d at 229. The trial

court erred in Miller because it disallowed questions about sexual offenses against

children after several members of the venire expressed bias. See 2012 WL

3031160, at *3.

In Alexander’s case, it appears the trial court was concerned that questioning

the panelists about pedophilia might be attempted during voir dire as part of a

7 strategy aimed at determining how various panelists might weigh information

related to Alexander’s sexual offenses against children when it was later

introduced at trial. However, the attorneys in SVP cases may properly pose

questions during voir dire when their questions are designed to reveal the attitudes

of the potential jurors on matters that are relevant to the sexual history of the

person the State is seeking to commit. See id.; see also Hyundai, 189 S.W.3d at

758. But, in Alexander’s case, Alexander’s attorney never informed the court that

she wanted to ask a line of questions on the subject of pedophilia and she never

posed a question to the prospective jurors specifically asking about their attitudes

about pedophiles during voir dire. Instead, she told the trial court that she did not

intend to bring up the subject. And, the record reflects that the trial court, during

the pretrial hearing, told Alexander’s attorney that she would have to conduct voir

dire as she thought proper. Finally, near the end of the pretrial hearing, the trial

court asked Alexander’s attorney to identify the specific questions she wanted to

ask in voir dire. Although Alexander’s attorney identified several specific things

she intended to ask during voir dire (which the trial court indicated would be

allowed), she never asked if she could ask the potential jurors about pedophilia.

We conclude that the record does not support Alexander’s argument that his

attorney was ordered or prevented by the trial court from questioning the panel on

8 their attitudes about pedophiles. We further conclude that Alexander did not pursue

the matter to an adverse ruling. See Hill, 334 S.W.3d at 229; Tex. R. App. P.

33.1(a)(2)(A).

Having carefully reviewed the record, we conclude the trial court did not

prevent Alexander’s counsel from asking questions in voir dire about pedophilia.

See In re Commitment of Crosby, No. 09-11-00371-CV, 2012 WL 983168, at *3

(Tex. App.—Beaumont Mar. 22, 2012, pet. denied) (mem. op.). We overrule issue

two.

Evidence

Alexander raises two issues complaining about the trial court’s rulings to

exclude and admit certain evidence. In issue three, Alexander contends the trial

court impermissibly restricted his right to cross-examine the State’s testifying

psychologist, Dr. Timothy Proctor about his rate of error. The trial court sustained

the State’s objections to the following questions on the basis the questions were not

relevant or were misleading:

• Not one single person you’ve diagnosed with [a] behavioral abnormality has ever gone on to commit another sexual offense?

• Do you know whether or not your predictions are correct?

• Do you know what your rate of error is?

9 The jury’s determination that Alexander is a sexually violent predator relies

upon the opinion testimony of the State’s experts; therefore, questions about the

general accuracy of Dr. Proctor’s opinions concerning the subject matter of his trial

testimony are relevant inquiries. 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). However, the trial court may

exercise reasonable control over the interrogation of witnesses to make the

interrogation effective for the ascertainment of the truth. See Tex. R. Evid. 611(a).

Also, “[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury[.]” Tex. R. Evid. 403.

Alexander argues that the questions at issue would have informed the jury

about the reliability of Dr. Proctor’s opinion. We disagree that the questions at

issue would have assisted the jury in determining the weight to give to Dr.

Proctor’s testimony. First, the questions at issue implicitly presume that Dr.

Proctor expressed an opinion by expressing a prediction about Alexander’s future

behavior; instead, the record reflects that Dr. Proctor testified that he did not

provide a prediction that Alexander would commit another offense. Before asking

10 the questions at issue, Alexander’s attorney asked Dr. Proctor, “And your role in

this proceeding is to predict whether Lloyd will commit a future act of sexual

violence, isn’t that true?” Dr. Proctor replied, “No.” Dr. Proctor explained that

some patients, although properly placed in a moderate to high risk category, do not

go on to re-offend; thus, Dr. Proctor assessed a present risk that was based on

Alexander’s history, his actuarial tests, and his interview.

Leading potentially to further confusion, risk assessments in cases involving

sexually violent predators are made among patient populations that typically have

received little or no sex offender treatment. However, if committed, persons in the

assessment group in the State of Texas subsequently receive treatment designed to

reduce the risk of recidivism. Dr. Proctor’s experience appears to be with patients

involved in the State of Texas. Consequently, questions that fail to account for the

effects of sex offender treatment based on the physician’s patient population or the

population he relied on when assessing the patient cannot assist the jury in

determining whether the expert has in the past correctly applied the techniques

developed to determine which persons need sex offender treatment to prevent re-

offending. See In re Commitment of Young, No. 09-11-00663-CV, 2013 WL

4758218, at **27-28 (Tex. App.—Beaumont Sept. 5, 2013, no pet. h.) (reasoning

11 that extrapolating an untreated person’s recidivism risk from recidivism statistics

of a treated population presents a logical fallacy).

Additionally, the record reflects that Dr. Proctor was thoroughly cross-

examined when he testified during Alexander’s trial. Alexander’s attorney

questioned Dr. Proctor about the role actuarials played in his opinion, and how he

had scored Alexander’s actuarial tests. Through these questions, Alexander’s

attorney showed the jury that Alexander received a score of 4 on the Static-99R,

placing Alexander in a group that Dr. Proctor considered as representing a

moderately high likelihood to reoffend, that another group of sex offenders had a

higher rate of reoffending, and that in the Static-99R study 20.1 percent of the

people with Alexander’s score were known to have committed another offense in a

period of five years. Dr. Proctor admitted that actuarial instruments are not exact,

that in 2001 and 2002 other professionals had given Alexander higher scores using

similar actuarial instruments, that the Static-99R takes age into account and assigns

less risk to persons who have reached the age of 60, and that Alexander will be

approaching 60 and might be older than 60 when he is released from prison. The

trial court permitted Alexander to question Dr. Proctor about the limitations of the

Static-99R, including the assessment tool’s failure to account for dynamic factors

and that it is “considered moderately predictive.”

12 The trial court could reasonably conclude that the jury would have been

confused had Alexander’s attorney been allowed to ask the questions at issue. We

conclude the trial court did not abuse its discretion by sustaining the State’s

objections to the questions at issue, and we overrule issue three.1 See Tex. R. Evid.

403.

In issue four, Alexander contends the trial court improperly required him to

respond to a question about whether a cellmate had accused him of sexually

inappropriate behavior when they lived in the same cell. According to Alexander,

the question was improper because it required him to speculate about the truth or

veracity of another person.

The record contains evidence regarding the accusation by Alexander’s

cellmate. Dr. Proctor testified that although Alexander had no formal disciplinary

cases, he had been accused of being “sexually inappropriate” with other inmates.

According to Dr. Proctor, after Alexander was released on mandatory supervision,

Alexander’s former cellmate accused Alexander of sexual assault. Dr. Proctor

1 Alexander suggests we should restrict our analysis to the State’s relevance objection. A trial-level complaint is a prerequisite to presenting a complaint for appellate review. See Tex. R. App. P. 33.1(a). As the prevailing party on an evidentiary ruling made during a trial on the merits, the State is not limited to arguing the grounds asserted during the trial. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989) (“[A]n appellate court should uphold the ruling if there is any other ground for doing so, even though not urged below.”). 13 stated that he considered the accusation in forming his opinion and felt the

allegation should not be characterized as unproven; however, Dr. Proctor also

agreed the accusation did not result in a court sanction.

Alexander testified during the trial; during his testimony, Alexander denied

having engaged in any sexual activity with his cellmate. According to Alexander,

they “got along well enough” during the eight months they were housed together,

and Alexander explained that while they had been housed together, his cellmate

never alleged that he had engaged in improper behavior. Alexander also testified

that detectives first interviewed him about the accusations of his cellmate after he

was released, and he was neither arrested nor charged. On re-examination,

Alexander clarified that shortly before his release from prison his cellmate “just

had nothing to say to me.” The State asked, “And he made up these allegations

about you after you were already released into the community?” Alexander

objected that the question required that he “talk about whether someone else is

lying.” Alexander’s former cellmate did not testify.

We need not address whether the trial court abused its discretion by allowing

the testimony at issue. A witness cannot invite the error then complain on appeal.

Raney v. State, 958 S.W.2d 867, 879 (Tex. App.—Waco 1997), pet. dismissed, 982

S.W.2d 429 (Tex. Crim. App. 1998). After Dr. Proctor stated he considered the

14 former cell mate’s accusation, Alexander offered his own testimony that the sexual

conduct alleged by his cellmate had not occurred and stated that his cellmate had

made charges of misconduct against others. By these questions, Alexander implied

that he was never charged with sexual assault because the cellmate’s accusations

were false. The trial court did not abuse its discretion by allowing the State to

cross-examine Alexander on the topic. Id. We overrule issue four.

Closing Argument

Alexander’s remaining three issues complain about several of the trial

court’s rulings during closing argument. We may reverse a judgment based upon

improper jury argument when an error that was not invited or provoked was

preserved by the proper trial predicate and was not curable “by an instruction, a

prompt withdrawal of the statement, or a reprimand by the judge.” Standard Fire

Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); In re Commitment of Eeds,

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

In issue five, Alexander complains the trial court should have granted his

request for a mistrial after counsel for the State injected her personal opinion

during jury argument that Alexander was not “very good at lying.” The trial court

sustained Alexander’s objection that the argument was improper and granted his

15 motion to strike the statement; however, the trial court denied Alexander’s request

for a mistrial.

Harmful error is rare when trial courts make an effort to cure improper jury

argument. “Typically, retraction of the argument or instruction from the court can

cure any probable harm, but in rare instances the probable harm or prejudice

cannot be cured.” Living Centers of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680

(Tex. 2008). An unsupported, extreme, and personal attack on the opposing party

“can similarly compromise the basic premise that a trial provides impartial, equal

justice.” Id. at 681.

There was evidence in the record to support an argument that Alexander

should be considered a liar. Dr. Proctor testified that Alexander has exhibited traits

of pathological lying. The State’s other expert, Dr. Gaines, characterized

Alexander as “charming,” “articulate,” “conning,” and “manipulative.”

The State’s argument suggesting that Alexander was a liar finds support in

the record; therefore, we must assess the harm arising from the injection of

counsel’s personal opinion that Alexander is a poor liar. Alexander argues the

comment was incurable because his testimony provides the only support for his

defensive issues. However, the State’s attorney did not further inject her personal

opinion into closing argument, as her remaining argument focused on the experts’

16 assessment of Alexander’s risk factors, Alexander’s diagnosis of pedophilia, and

Alexander’s extensive history of grooming and molesting minors. We conclude

that any alleged error regarding the prosecutor’s expression of her opinion

regarding Alexander could have been cured had Alexander’s attorney requested an

instruction that would have informed the jury to disregard the argument.

The trial court granted Alexander’s request to strike the improper argument

from the record. Alexander could have asked for an instruction that the jury

disregard the objectionable argument, but his attorney did not do so. We conclude

that the trial court was not required to grant mistrial based on the argument at

issue. See Standard Fire, 584 S.W.2d at 839. We hold the trial court did not abuse

its discretion by denying Alexander’s request for a mistrial, and we overrule issue

five.

In issue six, Alexander complains the trial court refused to allow his attorney

“to define non-legal terms according to common usage[.]” While discussing the

charge with the jury, defense counsel sought to discuss terms that were undefined

in the charge, as follows:

Behavioral abnormality means a congenital or acquired condition, that by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense to the extent that the person becomes a menace to the health and safety of another person.

17 That’s a long definition, let’s just break it down a little bit. What is congenital or acquired condition? We don’t have a specific legal definition given to you in your packet so you use your ordinary meaning that you’re familiar with. Congenital means at birth. And acquired condition, that’s not defined in the packet either. But an acquired condition in its ordinary meaning --

The trial court sustained the State’s objection that Alexander’s attorney was

attempting to give the jury definitions that were not included in the charge.

Counsel continued without further objection, as follows:

When you go back, you’re not going to see a definition here on what is an acquired condition. You use your common sense. The legislature counts on you to do so because they didn’t provide you with a specific legal definition. So you can do that.

Okay. Now, this particular acquired condition must, according to our statute, affect a person’s emotional or volitional capacity. Okay. So we’re talking about how a person thinks and feels, what a person does, emotional or volitional capacity. But you’re still not done because that’s not all your question talks about with your definitions.

This condition has also required to predispose him to commit a sexually violent offense. And there’s still more. And he has to be a predisposition to the extent that the person becomes a menace to the health and safety of another person. That’s the whole thing, all of it. But, you know, there’s more even than that. There are more legal definitions and issues to consider here.

The term “acquired condition” was in the charge, and the State’s attorney

had argued to the jury that Alexander was a pedophile whose condition had not

changed over the course of his life. Alexander’s attorney confined her argument to

the evidence and the arguments of opposing counsel. See Tex. R. Civ. P. 269(e). 18 Alexander’s attorney is also correct that the term “acquired condition” is not given

a specific legal meaning based on the definitions of terms found in the charge.

Therefore, an argument attempting to use an ordinary meaning for the term was

neither incorrect nor outside the record; therefore, the trial court erred when it

sustained the State’s objection.

Nevertheless, Alexander must also show that he was harmed by the trial

court’s erroneous ruling, and an error committed by a trial court is harmful only if

the error “probably caused the rendition of an improper judgment.” See Tex. R.

App. P. 44.1(a)(1). Counsel discussed the charge with the jury, and the jury was

capable of applying an ordinarily understood meaning to the term “acquired

condition.” Additionally, the record does not reflect how Alexander’s attorney

would have defined the term “acquired condition” had she been allowed to

proceed, so we are unable to determine whether the term would have been given an

appropriate meaning had the argument been allowed. Having carefully reviewed

the entire record, we are not persuaded that the trial court’s error is shown to have

caused the jury to reach an improper verdict based on the evidence. Id. We

overrule issue six.

19 In issue seven, Alexander complains the trial court improperly allowed the

State to criticize Alexander’s counsel during rebuttal. The State’s attorney

commenced her rebuttal, as follows:

You know, we started out yesterday or Monday, I started out today to remind you that this is a straightforward case. And it’s such a straightforward case that all the defense can do when they get up here is put a guilt trip on you. All the defense can do when they get up here is make perhaps the comments about –

Alexander’s attorney objected, characterizing the argument as constituting personal

criticism of counsel. See Tex. R. Civ. P. 269(e). The trial court overruled the

objection.

The comments at issue were not made in response to the evidence admitted

during Alexander’s trial, nor were they responsive to the arguments advanced by

Alexander’s counsel in closing argument. The argument presents opposing

counsel’s performance of her duties in an unfairly negative light and appears

designed to “turn the jurors against defense counsel for doing what lawyers are

ethically bound to do: advocate clients’ interests within the bounds of law.” Living

Centers, 256 S.W.3d at 682. We conclude the argument was improper and that the

trial court should have sustained Alexander’s objection to it. Id. at 681-82.

However, improper argument of counsel is rarely reversible. Id. at 681

(comparing counsel to perpetrators of Nazi atrocities required reversal of a

20 judgment against a nursing home). We are not persuaded that the comments at

issue caused the jury to disregard their instructions to “not let bias, prejudice, or

sympathy play any part in your decision[,]” nor are we persuaded that the

comments undermined Alexander’s effort to explain to the jury that he did not

have the burden of proof. See Tex. R. App. P. 44.1(a)(1). Because we are not

persuaded that the argument at issue caused the jury to reach an improper verdict,

we overrule issue seven.

Having overruled each of Alexander’s issues, we affirm the judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on June 7, 2013 Opinion Delivered September 26, 2013 Before McKeithen, C.J., Kreger and Horton, JJ.