in Re Commitment of Ryan Barney Bryant

• Court: Court of Appeals of Texas
• Decided: September 11, 2014
• Docket: 09-13-00310-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00310-CV ____________________

IN RE COMMITMENT OF RYAN BARNEY BRYANT

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-10-10524 CV ________________________________________________________ _____________

MEMORANDUM OPINION

Raising two issues in his appeal, Ryan Barney Bryant appeals from an order

of commitment rendered by the trial court after a jury found Bryant to be a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2014) (SVP statute). In issue one, Bryant contends that he

was denied the assistance of counsel during a psychiatric examination conducted

by the State’s expert after the State filed its petition seeking to have him civilly

committed for treatment as a sexually violent predator. In issue two, Bryant

complains that the probative value of evidence, describing various details about the

1 sexually violent offenses he was convicted of committing, was substantially

outweighed by the danger that this evidence would confuse or unfairly prejudice

the jury. We conclude that Bryant’s issues are without merit, and we affirm the

judgment ordering Bryant’s commitment.

In October 2012, the State filed a petition alleging that Bryant should be

found to be a sexually violent predator and sought to have him civilly committed

for treatment. Subsequently, the State filed a motion asking the trial court to

require that Bryant undergo an examination by an expert, as authorized by section

841.061(c) of the Texas Health and Safety Code. See id. § 841.061(c) (West 2010).

By order, the trial court authorized the State’s expert to examine Bryant in a

manner “[c]onsistent with the Texas Health and Safety Code § 841

specifications[.]” See id. § 841.061(c), (f) (West 2010).

When the State filed its request asking that Bryant be examined, Bryant

asked the trial court to appoint counsel to represent him. The attorney the trial

court appointed filed a motion asserting that Bryant had the right to have counsel

present when being examined by the State’s expert. Approximately two weeks

later, Dr. David Self examined Bryant as authorized by the trial court’s order, but

Bryant’s counsel was not present during the examination. The day after the

examination occurred, the trial court denied Bryant’s request asking to be allowed

2 to have counsel present at the exam. During Bryant’s trial, Dr. Self testified about

the examination and the role that it played in his risk assessment and evaluation.

In several cases decided after Bryant filed his brief, we rejected the identical

argument that Bryant presents in issue one. In In re Commitment of Smith, we

observed that “neither the SVP statute nor the Fourteenth Amendment require that

counsel be present during a psychiatrist’s post-petition examination.” 422 S.W.3d

802, 807 (Tex. App.—Beaumont 2014, pet. denied); see also In re Commitment of

Richard, No. 09-13-00539-CV, 2014 WL 2931852, at *4 (Tex. App.—Beaumont

June 26, 2014, no pet.) (mem. op.); In re Commitment of Letkiewicz, No. 01-13-

00919-CV, 2014 WL 2809819, at *11 n.4 (Tex. App.—Houston [1st Dist.] June

19, 2014, no pet.) (mem. op.); In re Commitment of Cardenas, No. 09-13-00484-

CV, 2014 WL 2616972, at *4 (Tex. App.—Beaumont June 12, 2014, no pet.)

(mem. op.); In re Commitment of Muzzy, No. 09-13-00496-CV, 2014 WL

1778254, at *1 (Tex. App.—Beaumont May 01, 2014, pet. denied) (mem. op.); In

re Commitment of Speed, No. 09-13-00488-CV, 2014 WL 1663361, at *1 (Tex.

App.—Beaumont Apr. 24, 2014, pet. filed) (mem. op.); In re Commitment of

Lemmons, 09-13-00346-CV, 2014 WL 1400671, at *1 (Tex. App.—Beaumont

Apr. 10, 2014, pet. denied) (mem. op.).

3 Bryant argues that his right to have counsel present during his examination

by the State’s expert is required by section 841.144(a). See Tex. Health & Safety

Code Ann. § 841.144(a) (West 2010) (allowing a person that is subject to civil

commitment proceedings under Chapter 841 to have the assistance of counsel “at

all stages of the proceeding”). In Bryant’s case, the trial court appointed counsel to

represent Bryant before he was examined by the State’s expert. Bryant does not

explain how his right to have the advice of counsel was impaired when he had

counsel to provide him with advice both before and after Dr. Self examined him.

See Smith, 422 S.W.3d at 805. And, although Bryant and Dr. Self were deposed

before trial, Bryant has not shown how he was harmed by not having counsel

physically present during the examination. In Bryant’s case, the record shows that

during the trial, Bryant did not object to Dr. Self’s testimony concerning what

Bryant told Dr. Self during the examination, nor has Bryant explained how any of

the information the State obtained from the examination would not have been

available had the trial court granted Bryant’s request to have counsel present

during the examination. See id. at 806-07. Because Bryant has not shown that he

was denied the right to assistance of counsel, we overrule issue one.

In issue two, Bryant contends the trial court abused its discretion by

allowing the State’s expert, Dr. Self, to describe to the jury certain details about his

4 prior sexual offenses. During trial, Bryant objected to Dr. Self’s disclosing details

about his prior sexual offenses. Bryant argued that Dr. Self’s testimony about these

matters was inadmissible as hearsay, and that admitting the information would be

unfairly prejudicial. See Tex. R. Evid. 403, 705(d). The trial court overruled

Bryant’s objections. The record also reflects that before Dr. Self discussed the

matters at issue, the trial court gave the jury a limiting instruction, admonishing the

jury that: “Hearsay normally is not admissible. However, certain hearsay

information contained in records reviewed by experts is allowed into evidence

through expert testimony. Such evidence is admitted only for the purpose of

showing the basis of the expert’s opinion.”

Rule 705(a) of the Texas Rules of Evidence allows an expert to disclose the

facts or data on which the expert bases an opinion. See Tex. R. Evid. 705(a). If the

trial court admits underlying facts or data that would otherwise be inadmissible,

such as hearsay, the court, on request, is required to give the jury a limiting

instruction. See Tex. R. Evid. 705(d). If the trial court has given the jury a limiting

instruction, we presume that the trial court’s instruction was followed. See In re

Commitment of Day, 342 S.W.3d 193, 198-99 (Tex. App.—Beaumont 2011, pet.

denied).

5 In Bryant’s case, the trial court could have reasonably concluded that the

details concerning Bryant’s prior sexual offenses would be helpful to the jury’s

consideration of the methodology Dr. Self used in forming his opinions about

Bryant. Dr. Self explained the facts that he considered in forming his opinions, and

he explained how the facts concerning Bryant’s prior sexual offenses influenced

his opinions. Given the limiting instruction, the relevance of the information in

explaining or supporting Dr. Self’s opinions, and Dr. Self’s testimony, we

conclude the trial court had the discretion to admit the testimony at issue. See In re

Commitment of Simmons, No. 09-11-00507-CV, 2013 WL 2285865, at **2-3 (Tex.

App.—Beaumont May 23, 2013, no pet.) (mem. op.); Day, 342 S.W.3d at 199.

Admitting the evidence at issue was neither an abuse of discretion nor did it cause

the jury to reach an improper verdict. See Tex. R. App. P. 44.1(a)(1). We overrule

issue two.

Having overruled both of Bryant’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice Submitted on June 17, 2014 Opinion Delivered September 11, 2014 Before McKeithen, C.J., Kreger and Horton, JJ. 6