IN THE TENTH COURT OF APPEALS
No. 10-22-00102-CV
IN RE THE COMMITMENT OF R.A.F.
From the 54th District Court McLennan County, Texas Trial Court No. 2020-1592-2
MEMORANDUM OPINION
A jury found that Robert Fluke is a sexually violent predator, and the trial court
ordered Fluke civilly committed pursuant to the Civil Commitment of Sexually Violent
Predators Act (the SVP Act). See TEX. HEALTH & SAFETY CODE ANN. §§ 841.003, 841.081.
We affirm.
BACKGROUND
Fluke was convicted in April 2003 for two offenses of aggravated sexual assault
and sentenced to twenty years confinement for each offense. Fluke has been incarcerated
since the 2003 convictions. In May 2020, the State filed a petition alleging that Fluke is a
sexually violent predator and requesting that he be committed for treatment and supervision pursuant to the Sexually Violent Predator Act. At trial, Dr. Antoinette
McGarrahan, a forensic psychologist, testified that Fluke suffers from a behavioral
abnormality that makes him likely to engage in predatory acts of sexual violence.
JURY SELECTION
Fluke argues in his first issue that the trial court erred when it allowed the State to
ask an improper commitment question. During voir dire the State asked the panel if they
would have a problem with an expert witness getting paid. Fluke’s attorney objected to
the question as an improper commitment question. The trial court overruled the
objection. The State again asked the panel if anyone would have a problem with a witness
getting paid and would not be able to listen to that witness. Fluke’s attorney again
objected to the question. At that time there was a medical emergency, and the trial court
took a recess. There was no answer to the State’s question on a witness receiving
payment.
When voir dire resumed, the State asked another question unrelated to paying a
witness. The State did not ask any further questions on paying a witness. The State then
attempted to wind up its voir dire and asked if there was any question the panel wished
had been asked. Venireperson thirty-eight then asked “I think you had brought up a
point in regards to compensation for expert witnesses. … So are we dropping that from
there or no?’ Fluke’s attorney again objected to the question, and the trial court overruled
the objection. The State then asked:
In re The Commitment of R.A.F. Page 2 So I’m not asking, you know, if that’s part of evidence that you would listen to. But my question goes to the credibility of the witness. If someone is paid for their time in testifying, is that gonna (sic) affect your ability to listen to that witness or are you gonna (sic) weigh that against their credibility?
Venireperson thirty-eight responded “Not at all. I think a fair wage for a fair service – is
fine. I thought you asked for extraordinary amounts of money.” The State then asked,
“So can we all agree that if you are employed, you hope to be paid for your time? Can we
all agree with that?” The venireperson responded “yes.” The State then followed up and
said, “If there’s anyone who would hold it against a witness or would not even listen to
their testimony based on payment, now is a really good time to let me know.” There was
no reply.
An attorney cannot attempt to bind or commit a prospective juror to a verdict
based on a hypothetical set of facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App.
2001). Commitment questions are those that commit a prospective juror to resolve,
or to refrain from resolving, an issue a certain way after learning a particular fact. Id.
The jury had to determine whether Fluke is a sexually violent predator. The State’s
question does not ask the prospective juror to resolve or refrain from resolving that issue
or any other issue. The question concerns the expert witness’s credibility. The question
seeks to determine if any jurors would be biased against an expert witness who received
payment for testifying. Litigants may question potential jurors on voir dire to detect
potential bias and either challenge for cause or exercise peremptory challenges. See
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 375 (Tex. 2000); Babcock v. Northwest In re The Commitment of R.A.F. Page 3 Memorial Hospital., 767 S.W.2d 705, 708-09 (Tex. 1989). We do not find that the State’s
question was a commitment question. We overrule the first issue.
UNADJUDICATED OFFENSES
In the second issue, Fluke complains that the trial court erred in allowing the State
to admit as evidence unadjudicated sexual assault allegations. We review the trial court’s
evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998).
At trial, the State questioned Dr. Antoinette McGarrahan about Fluke’s sexual
offenses. Fluke objected to the testimony, and the objection was overruled. The trial
court granted Fluke’s request for a running objection and a limiting instruction pursuant
to Rule of Evidence 705 (d).
Dr. McGarrahan testified that the first allegation of Fluke sexually offending
someone occurred when he was fifteen years-old. He was accused of fondling his two
cousins who were nine and ten years-old at the time. Dr. McGarrahan then testified
that Fluke’s sister alleged that Fluke raped her and that he possibly drugged her prior to
raping her. Dr. McGarrahan further testified that there were four allegations that Fluke
committed sexual offenses against other inmates while in the Texas prison system.
Fluke argues that the evidence of the unadjudicated sexual assault allegations
should have been excluded because the probative value of the evidence was outweighed
by the danger of unfair prejudice. Rule of Evidence 705(d) regarding expert testimony
In re The Commitment of R.A.F. Page 4 states that “[i]f the underlying facts or data would otherwise be inadmissible, the
proponent of [an expert] opinion may not disclose them to the jury if their probative value
in helping the jury evaluate the opinion is outweighed by their prejudicial effect.” TEX.
R. EVID. 705(d). Rule of Evidence 403 further provides that relevant evidence may be
excluded “if its probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.
Factors considered when applying the Rule 403 balancing test “include the
probative value of the evidence, the potential of the evidence to impress the jury in some
irrational way, the time needed to develop the evidence, and the proponent’s need for
the evidence.” In re Commitment of Stuteville, 463 S.W.3d 543, 555 (Tex. App.—Houston
[1st Dist.] 2015, pet. denied) (quoting In re Commitment of Anderson, 392 S.W.3d 878, 882
(Tex. App.—Beaumont 2013, pet. denied)).
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IN THE TENTH COURT OF APPEALS
No. 10-22-00102-CV
IN RE THE COMMITMENT OF R.A.F.
From the 54th District Court McLennan County, Texas Trial Court No. 2020-1592-2
MEMORANDUM OPINION
A jury found that Robert Fluke is a sexually violent predator, and the trial court
ordered Fluke civilly committed pursuant to the Civil Commitment of Sexually Violent
Predators Act (the SVP Act). See TEX. HEALTH & SAFETY CODE ANN. §§ 841.003, 841.081.
We affirm.
BACKGROUND
Fluke was convicted in April 2003 for two offenses of aggravated sexual assault
and sentenced to twenty years confinement for each offense. Fluke has been incarcerated
since the 2003 convictions. In May 2020, the State filed a petition alleging that Fluke is a
sexually violent predator and requesting that he be committed for treatment and supervision pursuant to the Sexually Violent Predator Act. At trial, Dr. Antoinette
McGarrahan, a forensic psychologist, testified that Fluke suffers from a behavioral
abnormality that makes him likely to engage in predatory acts of sexual violence.
JURY SELECTION
Fluke argues in his first issue that the trial court erred when it allowed the State to
ask an improper commitment question. During voir dire the State asked the panel if they
would have a problem with an expert witness getting paid. Fluke’s attorney objected to
the question as an improper commitment question. The trial court overruled the
objection. The State again asked the panel if anyone would have a problem with a witness
getting paid and would not be able to listen to that witness. Fluke’s attorney again
objected to the question. At that time there was a medical emergency, and the trial court
took a recess. There was no answer to the State’s question on a witness receiving
payment.
When voir dire resumed, the State asked another question unrelated to paying a
witness. The State did not ask any further questions on paying a witness. The State then
attempted to wind up its voir dire and asked if there was any question the panel wished
had been asked. Venireperson thirty-eight then asked “I think you had brought up a
point in regards to compensation for expert witnesses. … So are we dropping that from
there or no?’ Fluke’s attorney again objected to the question, and the trial court overruled
the objection. The State then asked:
In re The Commitment of R.A.F. Page 2 So I’m not asking, you know, if that’s part of evidence that you would listen to. But my question goes to the credibility of the witness. If someone is paid for their time in testifying, is that gonna (sic) affect your ability to listen to that witness or are you gonna (sic) weigh that against their credibility?
Venireperson thirty-eight responded “Not at all. I think a fair wage for a fair service – is
fine. I thought you asked for extraordinary amounts of money.” The State then asked,
“So can we all agree that if you are employed, you hope to be paid for your time? Can we
all agree with that?” The venireperson responded “yes.” The State then followed up and
said, “If there’s anyone who would hold it against a witness or would not even listen to
their testimony based on payment, now is a really good time to let me know.” There was
no reply.
An attorney cannot attempt to bind or commit a prospective juror to a verdict
based on a hypothetical set of facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App.
2001). Commitment questions are those that commit a prospective juror to resolve,
or to refrain from resolving, an issue a certain way after learning a particular fact. Id.
The jury had to determine whether Fluke is a sexually violent predator. The State’s
question does not ask the prospective juror to resolve or refrain from resolving that issue
or any other issue. The question concerns the expert witness’s credibility. The question
seeks to determine if any jurors would be biased against an expert witness who received
payment for testifying. Litigants may question potential jurors on voir dire to detect
potential bias and either challenge for cause or exercise peremptory challenges. See
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 375 (Tex. 2000); Babcock v. Northwest In re The Commitment of R.A.F. Page 3 Memorial Hospital., 767 S.W.2d 705, 708-09 (Tex. 1989). We do not find that the State’s
question was a commitment question. We overrule the first issue.
UNADJUDICATED OFFENSES
In the second issue, Fluke complains that the trial court erred in allowing the State
to admit as evidence unadjudicated sexual assault allegations. We review the trial court’s
evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998).
At trial, the State questioned Dr. Antoinette McGarrahan about Fluke’s sexual
offenses. Fluke objected to the testimony, and the objection was overruled. The trial
court granted Fluke’s request for a running objection and a limiting instruction pursuant
to Rule of Evidence 705 (d).
Dr. McGarrahan testified that the first allegation of Fluke sexually offending
someone occurred when he was fifteen years-old. He was accused of fondling his two
cousins who were nine and ten years-old at the time. Dr. McGarrahan then testified
that Fluke’s sister alleged that Fluke raped her and that he possibly drugged her prior to
raping her. Dr. McGarrahan further testified that there were four allegations that Fluke
committed sexual offenses against other inmates while in the Texas prison system.
Fluke argues that the evidence of the unadjudicated sexual assault allegations
should have been excluded because the probative value of the evidence was outweighed
by the danger of unfair prejudice. Rule of Evidence 705(d) regarding expert testimony
In re The Commitment of R.A.F. Page 4 states that “[i]f the underlying facts or data would otherwise be inadmissible, the
proponent of [an expert] opinion may not disclose them to the jury if their probative value
in helping the jury evaluate the opinion is outweighed by their prejudicial effect.” TEX.
R. EVID. 705(d). Rule of Evidence 403 further provides that relevant evidence may be
excluded “if its probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.
Factors considered when applying the Rule 403 balancing test “include the
probative value of the evidence, the potential of the evidence to impress the jury in some
irrational way, the time needed to develop the evidence, and the proponent’s need for
the evidence.” In re Commitment of Stuteville, 463 S.W.3d 543, 555 (Tex. App.—Houston
[1st Dist.] 2015, pet. denied) (quoting In re Commitment of Anderson, 392 S.W.3d 878, 882
(Tex. App.—Beaumont 2013, pet. denied)).
The State was required to prove that Fluke is a sexually violent predator. Under
the SVP Act, 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 ANN.
§ 841.003(a). Regarding the first element, a person is a repeat sexually violent offender if,
as relevant here, the person is convicted of more than one sexually violent offense and a
sentence is imposed for at least one of the offenses. Id. § 841.003(b). Regarding the second
In re The Commitment of R.A.F. Page 5 element, a “behavioral abnormality” is defined as “a congenital or acquired condition
that, by affecting a person’s emotional or volitional capacity, predisposes the person to
commit a sexually violent offense, to the extent that the person becomes a menace to the
health and safety of another person.” Id. § 841.002(2). A “predatory act” is defined as “an
act directed toward individuals, including family members, for the primary purpose of
victimization.” Id. § 841.002(5).
Evidence about the accused’s past sexual offenses, both adjudicated and
unadjudicated, assists in demonstrating whether the accused has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence—the
ultimate issue that the jury must determine in an SVP Act case. See In re Commitment of
Miller, 262 S.W.3d 877, 894 (Tex. App.—Beaumont 2008, pet. denied). Dr. McGarrahan
testified that she relied on the unadjudicated allegations in forming her opinion that
Fluke suffers from a behavioral abnormality that makes him likely to engage in predatory
acts of sexual violence. The evidence about the unadjudicated offenses had probative
value and assisted the jury in understanding Dr. McGarrahan’s opinion that Fluke suffers
from a behavioral abnormality. See In re Commitment of Stuteville, 463 S.W.3d at 556.
To deter Dr. McGarrahan’s testimony about the unadjudicated allegations from
impressing the jury in an irrational way, the trial court gave a limiting instruction to the
jury at the time of Dr. McGarrahan’s testimony. Further, the jury also received a limiting
In re The Commitment of R.A.F. Page 6 instruction in the charge. The State noted during Dr. McGarrahan’s testimony that Fluke
had not been convicted based upon any of the allegations.
Dr. McGarrahan was the only witness to testify about Fluke’s behavioral
abnormality. Her testimony was necessary to the jury’s ultimate determination on
whether Fluke is a sexually violent predator. The trial court did not abuse its discretion
in allowing the State to admit as evidence unadjudicated sexual assault allegations. We
overrule the second issue.
CONCLUSION
We affirm the trial court’s judgment.
STEVE SMITH Justice
Before Chief Justice Gray, Justice Smith, and Justice Rose1 Affirmed Opinion delivered and filed November 30, 2022 [CV06]
1 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
In re The Commitment of R.A.F. Page 7