in Re Commitment of Mark Edward Slama

• Court: Court of Appeals of Texas
• Decided: November 20, 2014
• Docket: 09-13-00497-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00497-CV ____________________

IN RE COMMITMENT OF MARK EDWARD SLAMA

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-03-02427 CV ________________________________________________________ _____________

MEMORANDUM OPINION

The State filed a petition to commit Mark Edward Slama as a sexually

violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-841.151 (West

2010 & Supp. 2014) (the SVP statute). A jury found that Slama suffers from a

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

violence. See id. § 841.003(a) (West Supp. 2014). The trial court signed a final

judgment and order of civil commitment.

Slama raises four issues on appeal: (1) the trial court erred in denying him

assistance of counsel at a post-petition psychiatric examination; (2) the trial court

1 erred in granting a directed verdict on the repeat sex offender element; (3) the trial

court erred in admitting “substantive hearsay evidence” of a non-testifying expert

through expert testimony; and (4) the admission of the “substantive hearsay

evidence” was fundamental error and denied Slama a fair trial. Finding no error,

we affirm the trial court’s judgment and order of civil commitment.

Slama was convicted of three offenses of indecency with a child by sexual

contact, but he admitted in his testimony that he has sexually assaulted ten

different victims. He also admitted that he still has sexual urges towards children.

Dr. Self, the State’s expert and a forensic psychiatrist, reviewed Slama’s records,

including the report of an evaluation by Dr. Woodrick. Dr. Self concluded that

Slama suffers from pedophilia and antisocial personality disorder, and that he has a

behavioral abnormality.

RIGHT TO COUNSEL

In his first issue, Slama contends that the trial court committed reversible

error by denying him the right to have his attorney present at the post-petition

psychiatric examination conducted by the State’s expert prior to trial. We have

held that neither the SVP statute nor the Fourteenth Amendment requires that

counsel be present during a psychiatrist’s post-petition examination. In re

Commitment of Smith, 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet.

2 denied). Slama argues that Smith was based solely on a concession by Smith that

the SVP statute defines a civil commitment proceeding as a “trial or hearing” and

does not appear to encompass a pre-trial psychiatric examination. Id. at 806. In

Smith, while we noted that Smith made a concession, we did not use the

concession to reach our holding. Id. at 804-07. Additionally, we have upheld our

ruling in Smith in other cases. See In re Commitment of Edwards, No. 09-13-

00575-CV, 2014 Tex. App. LEXIS10033, at *20 (Tex. App.—Beaumont Sept. 4,

2014, no pet. h.); In re Commitment of Speed, No. 09-13-00488-CV, 2014 Tex.

App. LEXIS 4444, at *2 (Tex. App.—Beaumont Apr. 24, 2014, pet. denied) (mem.

op.); see also In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 Tex.

App. LEXIS 3888, at **1-2 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied)

(mem. op.). We decline to revisit our previous rulings. For the reasoning discussed

in Smith, we overrule Slama’s first issue.

DIRECTED VERDICT

In issue two, Slama challenges the trial court’s decision to grant the State’s

motion for directed verdict regarding whether Slama is a repeat sexually violent

offender. Slama argues there is a conflict between the Texas Rules of Civil

Procedure, which allow for a directed verdict, and the SVP statute, which provides

that in a jury trial, the “jury shall determine whether, beyond a reasonable doubt,

3 the person is a sexually violent predator.” Tex. Health & Safety Code Ann. §

841.062(a) (West 2010); see Tex. R. Civ. P. 268. Slama argues that because the

SVP statute controls when it is in conflict with the Texas Rules of Civil Procedure,

it was error for the trial court to grant the State’s motion for a directed verdict,

because the jury should have decided the issue on which the directed verdict was

granted. See Tex. Health & Safety Code Ann. § 841.146(b) (West 2010).

This Court has held that a civil commitment proceeding is generally subject

to the rules of procedure for civil cases and the trial court may grant a partial

directed verdict to remove a certain portion of a case from the factfinder. In re

Commitment of Scott, No. 09-11-00555-CV, 2012 Tex. App. LEXIS 8866, at **4-5

(Tex. App.—Beaumont Oct. 25, 2012, no pet.) (mem. op.); see In re Commitment

of Martinez, No. 09-12-00452-CV, 2013 Tex. App. LEXIS 13512, at *12 (Tex.

App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.). In Lemmons, we addressed

an argument virtually identical to Slama’s, and we found “no conflict between the

SVP statute and the Rules of Civil Procedure that precludes the granting of a

directed verdict in a jury trial when no evidence of probative value raises an issue

of material fact on the question presented.” Lemmons, 2014 Tex. App. LEXIS

3888, at **6-8. We overrule issue two.

4 ADMISSION OF EVIDENCE

In issue three, Slama contends the trial court abused its discretion by

admitting Dr. Self’s testimony about the report of Dr. Woodrick, a non-testifying

expert, because Dr. Self “did not rely on Woodrick’s out-of-court statements in

forming his opinions.” According to Slama, “Woodrick’s out-of-court statements

were actually admitted and used as substantive evidence in violation of the hearsay

rule.” In issue four, Slama maintains the trial court’s admission of this evidence

was fundamental error that deprived him of a fair trial.

We review the admission or exclusion of evidence under an abuse of

discretion standard. In the Interest of J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); In

re Commitment of McCarty, No. 09-12-00083-CV, 2013 Tex. App. LEXIS 7855,

at **4-5 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.). A trial

court abuses its discretion when it acts without reference to any guiding rules or

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). We will not reverse a judgment on the admission or exclusion of evidence

unless the appellant establishes that the trial court’s ruling was in error and that the

error was reasonably calculated to cause and probably did cause the rendition of an

improper judgment. See McCarty, 2013 Tex. App. LEXIS 7855, at *5; see also

Tex. R. App. P. 44.1(a)(1).

5 When Dr. Self began to testify regarding Slama’s scores on the actuarial

tests administered by Woodrick, Slama’s counsel objected on the basis of hearsay

and requested a limiting instruction:

[State’s Counsel]: And what was his final score on that actuarial?

[Defense Counsel]: Objection. Your Honor, at this point in time the testimony that she’s asking the doctor to elicit is hearsay, and I would ask for a limiting instruction.

THE COURT: Well, yes, it’s hearsay; but the doctor can testify about it because the Rules say that hearsay, for the purposes of showing not the truth of the matter asserted, but for the purposes of showing the basis of an expert’s opinion, can be testified to. So the jury can decide whether or not to rely on his opinion. I’ll give a more detailed explanation of the - - you know, one, what hearsay is, and, number two, why they can hear the hearsay but cannot rely on it to prove the truth of the matter asserted. Or is that adequate?

[Defense Counsel]: I would like the full limiting instruction, please, Your Honor.

....

THE COURT: Ladies and gentlemen of the jury, hearsay is a statement offered in evidence to prove the truth of the matter asserted or the truth of what is stated in the hearsay. But other than a statement made by a party opponent or deposition testimony, and we talked about that earlier, or made while a witness is testifying at trial, certain hearsay information contained in records reviewed by this witness has been and will be presented to you during the trial. Such hearsay information is presented before you for the purpose of showing the basis of this witness’s opinion. Such hearsay information cannot be considered by you as evidence to prove the truth of the statements that 6 are hearsay. Presented only to afford you the opportunity to decide the weight and credibility to be given to this witness’s testimony. Is that - - is that adequate?

[Defense Counsel]: Yes, Your Honor, thank you.

Thereafter, defense counsel made another hearsay objection to Dr. Self’s testimony

regarding Woodrick’s scoring of the actuarial test and the trial court stated, “Well,

I gave an explanation. It may be hearsay, but under the Rules dealing with opinions

by proffered experts, the hearsay can be presented before the jury, not to prove the

truth of the hearsay, but for the purposes of showing the basis of this expert’s

opinion.” The trial court sustained the hearsay objection, but overruled defense

counsel’s “objection to its presentation to the jury because the Rules of Evidence

say it is admissible before them, but not for the purposes of proving the truth.”

Dr. Self continued his testimony and explained that he reviewed Woodrick’s

report, as well as other documents, as part of his methodology in evaluating Slama

for a behavioral abnormality. Dr. Self explained that the documents he reviewed

for Slama are the types of documents other experts in the field review and rely on

in determining whether a person has a behavioral abnormality. Although Slama

argues that Dr. Self acknowledged that he relied on Woodrick’s report “in small

part,” Self’s testimony demonstrated that he utilized the report, along with many

other documents, that it was only part of his evaluation, and that it assisted him in

7 determining and forming the basis for his opinion that Slama suffers from a

SVP cases are civil proceedings, not criminal or quasi-criminal. See In re

Commitment of Martinez, 98 S.W.3d 373, 375 (Tex. App.—Beaumont 2003, pet.

denied) (“Chapter 841 is a civil, not a criminal or quasi-criminal, statute.”). A civil

commitment proceeding is subject to the rules of civil procedure unless otherwise

provided by the Act. Tex. Health & Safety Code Ann. § 841.146(b). To preserve

error concerning the admission of evidence, a party must timely object, stating the

specific ground of objection, if the specific ground is not apparent from the

context. Tex. R. Evid. 103(a)(1); see also Tex. R. App. P. 33.1(a).

This Court has previously held that, under Rule 705(a) of the Texas Rules of

Evidence, an expert may disclose on direct examination, or be required to disclose

on cross-examination, the underlying facts or data, and may discuss the

defendant’s prior offenses as part of the basis for the expert’s opinion. See, e.g., In

re Commitment of Camarillo, No. 09-12-00304-CV, 2013 Tex. App. LEXIS 7212,

at **8-10 (Tex. App.—Beaumont June 13, 2013, no pet.) (mem. op.); In re

Commitment of Day, 342 S.W.3d 193, 197-98 (Tex. App.—Beaumont 2011, pet.

denied). Rule 705 states that if otherwise inadmissible evidence relied on by an

expert is disclosed to the jury, the court must give the jury a limiting instruction

8 upon request. Tex. R. Evid. 705(d). We have previously overruled similar

arguments regarding the disclosure of information on which the experts relied in

forming their opinions. See Tex. R. Evid. 705; In re Commitment of Garcia, No.

09-12-00194-CV, 2013 Tex. App. LEXIS 14986, at **15-17 (Tex. App.—

Beaumont Dec. 12, 2013, pet. denied) (mem. op.); In re Commitment of Reed, No.

09-11-00484-CV, 2012 Tex. App. LEXIS 2493, at **2-6 (Tex. App.—Beaumont

Mar. 29, 2012, no pet.) (mem. op.); In re Commitment of Day, 342 S.W.3d at 197-

98. It is presumed the jury followed the court’s limiting instructions. Day, 342

S.W.3d at 199. Slama did not object to the trial court’s limiting instruction given

during Dr. Self’s testimony, did not request a different or additional instruction,

and did not object to the limiting instruction contained in the jury charge.

Slama acknowledges that his objections to Dr. Self’s testimony were only

hearsay objections. Relying on cases from other jurisdictions, Slama argues on

appeal that his hearsay objections to Woodrick’s “out-of-court statements” also

preserved Slama’s claim that the statements were not “basis” evidence, and that he

therefore preserved the argument which he raises for the first time on appeal. To

preserve error for appellate review, a party must present to the trial court a timely

request, motion, or objection, state the specific grounds therefore, and obtain a

ruling. In re Commitment of Bocanegra, No. 09-11-00002-CV, 2013 Tex. App.

9 LEXIS 844, at *12 (Tex. App.—Beaumont Jan. 31, 2013, pet. denied) (mem. op.).

Slama did not specifically make a Rule 705 objection to Self’s testimony regarding

his reliance on Woodrick’s report and, we conclude he did not preserve his

objection. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).

Slama contends that even if error was not preserved, the admission of

Woodrick’s “out-of-court statements” through Self’s testimony “should be

considered fundamental error that can be raised for the first time on appeal because

it denied [him] his basic due process right to a fair trial.” In In re Commitment of

King, we recently held that similar testimony concerning the basis of an expert’s

opinion was not “fundamental error” that could be raised for the first time on

appeal. See King, No. 09-13-00255-CV, 2014 Tex. App. LEXIS 724, **13-16

(Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.). In a footnote we

explained why the out-of-state cases King relied on were not applicable. See id. at

*15 n.3. As we stated in King, the cases were factually distinguishable from the

facts in King and neither case involved an application of the Texas SVP statute.

See id. Slama now urges this Court to revisit our holding in King because,

according to Slama, the factual differences between the out-of-state cases and this

case makes “no legally significant” difference. We decline to revisit our holding in

King.

10 Even if the objection had been preserved and the trial court had committed

error by admitting the evidence, we further conclude that the admission of the

evidence was harmless. There was sufficient evidence in the record that would

support the jury’s verdict, including, but not limited to, the pen packet, Slama’s

responses to the State’s requests for admission, the other testimony from Dr. Self,

and the testimony from Slama himself.

In order to make “‘[a] successful challenge to evidentiary rulings [it]

requires the complaining party to show that the judgment turns on the particular

evidence excluded or admitted.’” In re Commitment of Romo, No. 09-12-00598-

CV, 2013 Tex. App. LEXIS 13495, at *8 (Tex. App.—Beaumont Oct. 31, 2013, no

pet.) (mem. op.) (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54

(Tex. 1995)). Given the evidence in the record, the admissions from Slama, his

prior convictions, and the testimony from Dr. Self that Slama suffers from a

behavioral abnormality that makes him likely to engage in predatory acts of sexual

violence, Slama has not demonstrated that the trial court’s judgment turns on the

particular evidence about which he complains on appeal, and Slama has failed to

demonstrate that the admission of the testimony probably caused the rendition of

an improper judgment. Having overruled all of Slama’s issues, we affirm the

judgment.

11 AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on September 8, 2014 Opinion Delivered November 20, 2014

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