in Re Commitment of Raymond Michael Shoemaker

• Court: Court of Appeals of Texas
• Decided: May 7, 2015
• Docket: 09-14-00239-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00239-CV ____________________

IN RE COMMITMENT OF RAYMOND MICHAEL SHOEMAKER

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-10-10748 CV ________________________________________________________ _____________

MEMORANDUM OPINION

Raymond Michael Shoemaker appeals from a jury verdict that resulted in his

civil commitment as a sexually violent predator. See Tex. Health & Safety Code

Ann. §§ 841.001-.151 (West 2010 & Supp. 2014). In one issue, Shoemaker

contends the trial court abused its discretion by denying his request to videotape

his post-petition psychiatric examination, an examination conducted at the State’s

request by Dr. Sheri Gaines, a board-certified psychiatrist. We conclude that the

trial court did not abuse its discretion by denying his request; therefore, we affirm

the judgment and order of civil commitment.

1 Shoemaker argues that the rules governing discovery in civil cases required

that the trial court grant his request. We review a trial court’s discovery ruling in

SVP cases using an abuse-of-discretion standard. See In re Commitment of Malone,

336 S.W.3d 860, 862 (Tex. App.—Beaumont 2011, pet. denied); see also Tex.

Health & Safety Code Ann. § 841.146(b) (West 2010). To demonstrate that a trial

court abused its discretion in denying a request for discovery, a party must

demonstrate that the trial court acted without reference to any guiding rules and

principles, or demonstrate that it acted arbitrarily and unreasonably. E.I. du Pont de

Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v.

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

that the ruling on a discovery request was harmful, the party deprived of discovery

must show the trial court’s ruling probably resulted in the rendition of an improper

judgment, or show that the ruling prevented the appellant from properly presenting

his case on appeal. See Tex. R. App. P. 44.1(a).

In the request that Shoemaker filed seeking permission to videotape Dr.

Gaines’s examination, Shoemaker argued that he would not be able to “controvert

the State’s expert’s subjective statements about [Shoemaker’s] conduct during the

evaluation” without a videotape, and he suggested that “a video would disclose

whether the expert’s technique involves leading [Shoemaker] to give various

answers, directing the interview toward a particular result[.]” Shoemaker’s motion 2 also argues that a videotape of the examination would have been useful to him

when his trial attorney cross-examined Dr. Gaines. Shoemaker’s motion argued

that he would not have information that would prove essential to his defense if the

trial court denied his request.

In its response, the State argued that neither the SVP statute nor the Texas

Rules of Civil Procedure require the trial court to allow the videotaping of a post-

petition psychiatric examination. The trial court denied Shoemaker’s motion, and

the examination was not videotaped.

The SVP statute does not grant a party the right to videotape the examination

by the State’s expert. In re Commitment of Ramsey, No. 09-14-00304-CV, 2015

WL 1360039, at *4 (Tex. App.—Beaumont Mar. 26, 2015, no pet. h.) (mem. op.).

The examination by the State’s expert, however, is an examination that is

authorized by one of the provisions of the statute governing SVP cases. See Tex.

Health & Safety Code Ann. § 841.061(c) (West 2010) (“The person and the state

are each entitled to an immediate examination of the person by an expert.”).

Shoemaker does not claim that the SVP statute required the examination by

Dr. Gaines to be videotaped. See id. Instead, he argues that Rule 204.1 of the Texas

Rules of Civil Procedure authorized the trial court to establish the manner and the

conditions under which a mental examination is to occur. See generally Tex. R.

Civ. P. 204.1(d) (explaining that an order for a physical or a mental examination 3 under Rule 204.1(c) “must be in writing and must specify the time, place, manner,

conditions, and scope of the examination and the person or persons by whom it is

to be made”). The State contends that while the trial court could have required the

examination to be videotaped, the trial court had the discretion to deny

Shoemaker’s request because the manner and conditions the court decided to

impose were matters within its discretion. According to the State, the trial court did

not have a mandatory duty to require the exam to be videotaped under the

provisions of section 841.061 of the Texas Health and Safety Code or under Rule

204.1 of the Texas Rules of Civil Procedure.

We agree with the State that the Texas Rules of Civil Procedure do not

mandate that the court require mental examinations to be videotaped. Rule

194.2(f)(3) allows a party to discover the general substance of a testing expert’s

mental impressions and opinions, and a brief summary of the bases for the

opinions. See Tex. R. Civ. P. 194.2(f)(3). Additionally, Rule 195.3 requires that a

party seeking affirmative relief make its expert available for a deposition, and Rule

195.4 allows a party to obtain a deposition from an expert on the subject matter on

which the expert is expected to testify. See Tex. R. Civ. P. 195. However, the

Rules of Civil Procedure do not mandate that a trial court allow the party seeking

discovery to videotape the process the opposing party’s expert goes through in

forming opinions. 4 We are not persuaded that the existing discovery rules involving experts do

not adequately allow the parties to fully and effectively discover the basis on which

an expert has based her opinion. We are also not persuaded that the existing rules

of discovery are inadequate to allow counsel to effectively prepare to cross-

examine an opposing expert witness in a trial—in this case, for instance, the record

shows that Shoemaker’s counsel took Dr. Gaines’s deposition prior to the trial.

We hold that Shoemaker has not shown the trial court abused its discretion

by denying his request to videotape Shoemaker’s post-petition psychiatric

examination. See Robinson, 923 S.W.2d at 558; Ramsey, 2015 WL 1360039, at *5

(concluding that due process does not require videotaping a mental examination

under section 841.061 of the Texas Health and Safety Code). We overrule

Shoemaker’s sole issue, and we affirm the judgment and order of civil

commitment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on December 29, 2014 Opinion Delivered May 7, 2015

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