In Re Commitment of Robert Earl Smith v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 17, 2023
• Docket: 10-22-00254-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00254-CV

IN RE COMMITMENT OF ROBERT EARL SMITH

From the 82nd District Court Robertson County, Texas Trial Court No. 20-11-21133-CV

MEMORANDUM OPINION

Robert Earl Smith, a prison inmate, was involuntarily committed following a jury

trial in which Smith was found to be a sexually violent predator under Chapter 481, the

Sexually Violent Predator Act, of the Texas Health and Safety Code. Because Smith’s

issues on appeal are not preserved for our review, the trial court’s Order of Commitment

is affirmed.

The Sexually Violent Predator Act provides a civil-commitment procedure for the

long-term supervision and treatment of sexually violent predators. TEX. HEALTH &

SAFETY CODE § 841.001; In re Stoddard, 619 S.W.3d 665, 669 (Tex. 2020). A person is a

sexually violent predator if the person: "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a

predatory act of sexual violence." TEX. HEALTH & SAFETY CODE § 841.003(a); In re

Commitment of Brown, 656 S.W.3d 418, 429 (Tex. App.—El Paso 2022, no pet.).

SUFFICIENCY OF THE EVIDENCE

In his first two issues, Smith asserts the evidence was both legally and factually

insufficient to support a finding that he meets the legislatively intended definition of a

“behavioral abnormality” which Smith has gleaned from legislative findings and history

of Chapter 841.

Smith moved for a directed verdict and filed a motion for new trial alleging both

legal and factual insufficiency of the evidence, see TEX. R. CIV. P. 324(b)(2); Aero Energy,

Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985), but did not raise the specific

argument made on appeal to the trial court in either of these motions. 1 Requiring parties

to raise complaints at trial conserves judicial resources by giving trial courts an

opportunity to correct an error before an appeal proceeds. In the Interest of B.L.D., 113

S.W.3d 340, 350 (Tex. 2003). Because the trial court had no opportunity to consider

whether the evidence was both legally and factually insufficient to support a finding that

Smith met the legislatively intended definition of a “behavioral abnormality,” Smith’s

complaints on appeal do not comport with the complaints Smith presented to the trial

1 The challenge to the sufficiency of the evidence to support a finding of a behavioral abnormality in the written motion for new trial and oral motion for directed verdict concerned an alleged analytical gap between the method the expert applied to the research available and the expert’s opinion that Smith suffered from a behavioral abnormality. Even this challenge was not addressed at the hearing on the motion for new trial.

In re Commitment of Smith Page 2 court and are not preserved.2

Accordingly, Smith’s first and second issues are overruled.

LIMITING INSTRUCTION

In his third issue, Smith complains that the trial court erred in refusing to give the

jury a contemporaneous limiting instruction regarding hearsay pursuant to Texas Rule

of Evidence 705(d).

Rules of Evidence 703 and 705 allow a testifying expert to relate on direct

examination the reasonably reliable facts and data on which the expert relied in forming

the expert’s opinion, subject to an objection under Rule of Evidence 403 that the probative

value of such facts and data is outweighed by the risk of undue prejudice. TEX. R. EVID.

703, 705; Stam v. Mack, 984 S.W.2d 747, 750 (Tex. App.—Texarkana 1999, no pet.). 3 Rule

705(d) provides, in part, “[i]f the court allows the proponent to disclose those facts or data

the court must, upon timely request, restrict the evidence to its proper scope and instruct

the jury accordingly.” TEX. R. EVID. 705(d).

Prior to the State’s expert’s testimony regarding what she generally relied on to

form her opinion that Smith suffered from a behavioral abnormality that made him likely

2 Regardless, the substance of the argument Smith presents has been considered and rejected by other courts. See e.g. In re Commitment of Stoddard, 619 S.W.3d 665, 678 (Tex. 2020); In re Commitment of Brown, 656 S.W.3d 418, (Tex. App.—El Paso 2022, no pet.); In re Commitment of West, No. 05-20-00604-CV, 2022 Tex. App. Lexis 3944 at *11 (Tex. App.—Dallas June 9, 2022, no pet.) (mem. op.); In re Commitment of Tryon, 654 S.W.3d 29, 38–39 (Tex. App.—Eastland 2022, pet. filed); In re Commitment of Ausbie, No. 14-18-00167-CV, 2021 Tex. App. Lexis 3881, at *26-32 (Tex. App.—Houston [14th Dist.] May 18, 2021, pet. denied) (mem. op.).

3 In this case, Smith did not make a Rule 403 objection. In re Commitment of Smith Page 3 to engage in a predatory act of sexual violence, and then again immediately before the

expert testified about the specific facts and data she relied on in forming her opinion,

Smith requested a “hearsay” instruction from the trial court. Both times, the court

declined, saying that if he gave one, it would be in the charge to the jury. An instruction

was ultimately given in the charge.

To present a complaint for appellate review, the record must show that a

complaint was made to the trial court that "stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial

court aware of the complaint, unless the specific grounds were apparent from the

context[.]" TEX. R. APP. P. 33.1(a)(1)(A). Smith neither informed the trial court nor made

it aware that, pursuant to Rule 705(d), Smith requested a contemporaneous instruction to

the jury. The specific ground now raised by Smith was also not apparent from the context

of his complaint at trial. 4 Accordingly, Smith’s complaint on appeal is not preserved and

is overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s Order of

Commitment.

TOM GRAY Chief Justice

4 The requests were: “at this time I would request the Court issue a -- a hearsay instruction to the jury regarding these records” and “I still would request that you instruct the jury about regarding the hear -- hearsay instruction that we submitted.” No submitted instruction is included in the record. In re Commitment of Smith Page 4 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed May 17, 2023 [CV06]

In re Commitment of Smith Page 5