In re Commitment of SR, 09-15-00172-CV
| Decision Date | 14 April 2016 |
| Docket Number | NO. 09-15-00172-CV,09-15-00172-CV |
| Parties | IN RE COMMITMENT OF TOMMY DALE SELLS SR. |
| Court | Texas Court of Appeals |
On Appeal from the 435th District Court Montgomery County, Texas
The State filed a petition to commit Tommy Dale Sells Sr. (Sells or Appellant) as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2015) (SVP statute). A jury found that Sells is a sexually violent predator, and the trial court rendered a final judgment and an order of civil commitment. Sells timely filed an appeal.
At the time of trial, Appellant was serving a fifteen-year sentence for two sexual offenses: indecency with a child and aggravated sexual assault. Appellant testified that his six-year-old grandchild was the victim of the offenses for which he was currently serving time and he pleaded guilty to the offenses.
Appellant testified that in the early 1970s, he pleaded guilty to stealing a car in Louisiana. He also agreed that he was convicted in Texas in 1977 on a charge of unauthorized use of a motor vehicle, for which he was given probation. He explained that he was later arrested on a DWI charge, and after he escaped from city jail, his probation was revoked and he went to prison. He further stated he received a five-year sentence on a burglary charge in the early 1980s.
According to Appellant, in approximately 1986, he was convicted in California for lewd or lascivious acts with a child for acts against his daughter. He denied the allegations but stated that four charges for sexual offenses were also brought against him for various acts with his two boys and his daughter. Appellant stated that he was convicted of indecency with a child and given five years' probation for the offenses against his own children.
Appellant explained that he has amputations of both legs and his left arm as the result of a train/pedestrian accident that occurred around 1986. He also agreed that he is an alcoholic and he had been arrested "maybe three times" for DWI. He also testified that he was previously convicted of criminal mischief. Appellant also testified that he was arrested in California for shoplifting and that he resisted thepolice when they pulled him from his wheelchair to place him in the patrol car. He received a deferred sentence as a result of this incident.
In his first issue on appeal, Appellant argues that the trial court erred by admitting "highly and unfairly prejudicial details of the sexual offenses Appellant was convicted and accused of" that the State's expert considered as basis evidence. Appellant's brief acknowledges that this Court has repeatedly held that an expert in an SVP commitment proceeding may testify regarding evidence of the defendant's prior offenses provided the expert considered such evidence in forming an opinion and, where requested, the trial court gives a limiting instruction. See, e.g., In re Commitment of Day, 342 S.W.3d 193, 197-99 (Tex. App.—Beaumont 2011, pet. denied); see also Tex. R. Evid 705(d). However, Appellant asserts that the evidence shows that the jury treated the basis evidence, which would normally be inadmissible as hearsay, for the truth of the matter asserted, in contravention to the court's limiting instruction.
During the trial, the State's expert witness, Dr. Sheri Gaines, testified that among the evidence she considered in forming her expert opinion were records of Appellant's prior offenses. Gaines then testified that Appellant's first sexual offenses occurred in 1986 in California. When the State asked who the victim orvictims of these offenses were, Appellant objected that the evidence was hearsay and improper under Rule 403. The court overruled the objections and gave a limiting instruction. Gaines then testified that Appellant's children were his victims in the 1986 offenses and Gaines also testified as to how the offenses occurred. Gaines also testified that the four charges resulted in no convictions. Appellant asked for a running objection as to the basis evidence, which the court allowed.
Later during the trial, Appellant's expert, Dr. Roger Saunders, testified that he also considered records of the prior offenses among other evidence in forming his expert opinion as to whether Appellant has a behavioral abnormality. On cross-examination, Dr. Saunders also agreed to certain details of the sexual offenses.
Following the trial, Appellant filed a motion for new trial based in part upon the argument that "there was material jury misconduct[]."Specifically, Appellant asserted that one of the jurors, B.M., had posted comments to a Houston Chronicle online article after the trial and Appellant argued that B.M.'s comments "suggest an outside influence, originating from a source other than the jurors themselves." Appellant attached an affidavit of another juror, N.G., who attested that the person who posted the comments to the news article had served on the jury with N.G.
At a hearing on the motion for new trial, Appellant questioned B.M. and B.M. admitted he had posted comments following the online publication of theChronicle's article about the trial. B.M.'s complained-of comments were admitted into evidence:
At the hearing, B.M. agreed he regarded Appellant as a "monster[.]" B.M. further testified that he came to this conclusion after having heard "everything in the case[]" and after "both sides closed their case[.]"
During examination of B.M. by Appellant, the court stated that "everything so far that you are asking is related to post-jury conduct." And at the conclusion of questioning, the court explained:
Counsel, I'm looking for some law to support outside influence. I have told you that. I have looked at your motion. Your motion said that there was an affirmative blatant prejudice supporting his failure to respond. And thus far, you have no evidence to support that. Now, that's the basis of your motion. I have read it. I have read the response. I read the statement of fact that I have got of this. I know the questions that were asked. I'm ready to proceed. I'm going to have to sustain Counsel's objection. I am looking at what you say you have. I am asking you to just go forward with it.
The court denied the motion for new trial without entering findings of fact or conclusions of law.
On appeal, Appellant challenges the trial court's admission of Dr. Gaines's testimony concerning the details of previous offenses, but Appellant does not appeal the denial of his motion for new trial. We review the admission of evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trialcourt abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). And we consider a trial court's ruling in light of what was before the court at the time the ruling was made. See Stephens Cty. v. J.N. McCammon, Inc., 52 S.W.2d 53, 55 (Tex. 1932) (); Spiritas v. Davidoff, 459 S.W.3d 224, 231 (Tex. App.—Dallas 2015, no pet.) (same); Congleton v. Shoemaker, Nos. 09-11-00453-CV, 09-11-00654-CV, 2012 Tex. App. LEXIS 2880, at **15-16 n.3 (Tex. App.—Beaumont April 12, 2012, pet. denied) (mem. op.) ("Our review . . . is limited to the record before the trial court at the time of its ruling.").
We have repeatedly held that a trial court does not err in admitting basis testimony by an expert in an SVP commitment proceeding regarding evidence of the defendant's prior offenses provided the expert considered such evidence in forming her opinion and, where requested, the court gives a limiting instruction. See, e.g., Day, 342 S.W.3d at 197-99; see also Tex. R. Evid 705(d). We presume the jury followed the trial...
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