in Re Commitment of Steven James Sterling

• Court: Court of Appeals of Texas
• Decided: March 26, 2015
• Docket: 09-14-00393-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-14-00393-CV ____________________

IN RE COMMITMENT OF STEVEN JAMES STERLING _________________________________ ______________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 14-02-01836-CV ____________________________________________ ____________

MEMORANDUM OPINION

The State of Texas filed a petition to commit Steven James Sterling as a

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

(West 2010 & Supp. 2014). A jury found that Sterling is a sexually violent

predator and the trial court rendered a final judgment and an order of civil

commitment. In one appellate issue, Sterling contends that the trial court

committed reversible error by refusing to allow him to cross-examine the State’s

expert witness regarding rate of error. We affirm the trial court’s judgment.

“A witness may be cross-examined on any matter relevant to any issue in the

case, including credibility.” Tex. R. Evid. 611(b). Even relevant evidence may be

1 excluded when its “probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”

Tex. R. Evid. 403. “The court shall exercise reasonable control over the mode and

order of interrogating witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2) avoid

needless consumption of time, and (3) protect witnesses from harassment or undue

embarrassment.” Tex. R. Evid. 611(a). “We review a trial court’s evidentiary

rulings for abuse of discretion.” Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 906 (Tex. 2000). We will not reverse unless the error probably caused

the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1).

During cross-examination of Dr. David Self, the defense attempted to ask

Self if he knew his rate of error. The State objected on grounds that the question

was misleading and the trial court stated, “We don’t get into rate of error. No such

thing. Next question.” During a subsequent offer of proof, Self testified that he

could not determine rate of error. The trial court found that the evidence is

irrelevant and can mislead the jury. On appeal, Sterling contends that limitation of

his cross-examination to exclude rate of error “invaded [his] right to challenge the

weight of the expert’s opinions before the jury.”

2 Questions about the general accuracy of an expert’s opinions regarding the

subject matter of his trial testimony are relevant inquiries. In re Commitment of

Alexander, No. 09-11-00650-CV, 2013 Tex. App. LEXIS 12077, at *11 (Tex.

App.—Beaumont Sept. 26, 2013, pet. denied) (mem. op.). However, questions

regarding an expert’s rate of error presume that the expert is making a prediction

about the respondent’s future behavior when the expert is actually assessing a

present risk based on the respondent’s history, actuarial tests, and interview. In re

Commitment of Butler, No. 09-13-00358-CV, 2014 Tex. App. LEXIS 10031, at

*11 (Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.); Alexander, 2013

Tex. App. LEXIS 12077, at *12. Additionally, “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.” Alexander, 2013 Tex. App. LEXIS 12077, at *13. This Court has

previously recognized the potential for confusion of the jury that these types of

questions create. Butler, 2014 Tex. App. LEXIS 10031, at *11; Alexander, 2013

Tex. App. LEXIS 12077, at *12. Accordingly, we have held that the trial court

does not abuse its discretion by preventing cross-examination of an expert

3 regarding the expert’s rate of error. Butler, 2014 Tex. App. LEXIS 10031, at *14;

Alexander, 2013 Tex. App. LEXIS 12077, at **14-15. We decline Sterling’s

invitation to revisit these rulings.

In accordance with Butler and Alexander, we conclude that the trial court did

not abuse its discretion by limiting Sterling’s cross-examination to exclude

questions regarding Self’s rate of error. See Butler, 2014 Tex. App. LEXIS 10031,

at *14; see also Alexander, 2013 Tex. App. LEXIS 12077, at **14-15. We

overrule issue one and affirm the trial court’s judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on February 25, 2015 Opinion Delivered March 26, 2015

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