In re Commitment of Darryl Wayne Day.

• Citation: 342 S.W.3d 193
• Decision Date: 12 May 2011
• Docket Number: No. 09–10–00218–CV.,09–10–00218–CV.
• Parties: In re COMMITMENT OF Darryl Wayne DAY.
• Court: Texas Court of Appeals

342 S.W.3d 193

In re COMMITMENT OF Darryl Wayne DAY.

No. 09–10–00218–CV.

Court of Appeals of Texas, Beaumont.

Submitted on Jan. 13, 2011.Decided May 12, 2011.

George W. Lang II, State Counsel for Offenders, Huntsville, for appellant.

Melinda Fletcher, Special Prosecution Unit, Amarillo, for appellee.Before GAULTNEY, KREGER, and HORTON, JJ.

OPINION

CHARLES KREGER, Justice.

The State of Texas filed a petition to civilly commit Darryl Wayne Day as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001–.150 (West 2010). A jury found Day suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. Id. § 841.003(a). The trial court entered final judgment and an order of civil commitment under the Act. We affirm the trial court's judgment.

OFFENSE DETAILS AND OTHER BAD ACTS

In issue one, Day complains that the trial court allowed the State to develop testimony concerning the details of Day's past offenses, the prejudicial effect of which substantially outweighed the probative value of that evidence. See Tex.R. Evid. 403. Day identifies seven points in the record where he contends the State presented details of prior misconduct from unidentified prosecution records. He includes the State's opening statement and closing argument. The lawyer's statements in opening and closing argument are not evidence. See McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex.App.-Dallas 1993, no writ).

Day also complains that the State read his responses to requests for admissions into the record, but he did not object to that action at trial. See Tex.R.App. P. 33.1. Likewise, Day complains that his examination by the State regarding the predicate offenses and disciplinary infractions occurring during his imprisonment added little to the proof of any relevant fact, but Day did not object during the trial. To preserve error concerning the admission of evidence at trial, the appellant must make a timely objection that states the specific ground of objection. Tex.R. Evid. 103(a)(1); see also Tex.R.App. P. 33.1.

Through three expert witnesses, the State developed testimony about the details of the offenses for which Day was imprisoned, the commission of other crimes and bad acts for which he was not convicted, and his behavior while in prison. One expert, forensic psychologist Walter Y. Quijano, was retained by Day. Quijano stated that he reviewed Day's records and partly relied on those records in evaluating Day for a behavioral abnormality. When the State asked Quijano if Day forced one of his victims into his car and told her to take off her jeans and panties, Day objected that “these are hearsay statements taken from the records.” Compare Tex.R. Evid. 802 with Tex.R. Evid. 403. Because Day did not make a Rule 403 objection to the testimony elicited from Quijano, he failed to preserve error on appeal. See Tex.R. Evid. 103(a)(1); Tex.R.App. P. 33.1.

The State asked its forensic psychologist, Jason D. Dunham, “And from your review of the records what happened in the sexual assault of a child[?]” Day objected that the question called for hearsay and that the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 802; see also Tex.R. Evid. 403, 705(d). The trial court overruled the objections, and at the request of counsel instructed the jury “hearsay normally is not admissible in trial. However, certain hearsay information contained in records reviewed by the expert is allowed into evidence through expert testimony. Such evidence is admitted only for the purpose of showing the basis of the expert's opinion.” Without further Rule 403 objections, Dunham testified about the details of the offenses, as revealed in the records he reviewed, and explained for the jury the significance of the information he read in the records and how that information related to the actuarial instruments used as predictors for rearrest and reconviction. Dunham expressed his opinion that Day was at very high risk to reoffend when he entered prison and while imprisoned Day did nothing through treatment to statistically mitigate that risk, so in Dunham's opinion Day is “a very high risk when he leaves as well.”

Another State's expert, forensic psychiatrist Michael R. Arambula, testified that he reviewed Day's records and personally interviewed Day in conducting his evaluation of Day for a behavioral abnormality. Counsel asked Arambula if Day discussed his childhood during the interview. Arambula responded that Day minimized any physical abuse that may have occurred during his childhood. Counsel asked Arambula whether he saw “anywhere in the record that there was any evidence of abuse?” Day objected, but the trial court overruled Day's hearsay objection. See Tex.R. Evid. 802. Counsel for Day then objected that “its prejudicial value is outweighed by its probative.” See Tex.R. Evid. 403. The trial court overruled that objection. Day next objected that “the danger that hearsay may be used for a purpose other than an explanation or support of the expert's opinion outweighs its value and explanation or support.” See Tex.R. Evid. 705(d). The trial court overruled that objection but provided a limiting instruction to the jury that was substantially the same as the instruction given to the jury when Dunham testified. Counsel then asked whether, outside of the interview with Day, Arambula saw any evidence of childhood physical abuse in Day's records. Arambula replied, “There were some notations in past records where he had divulged that to someone.” Arambula testified on direct examination without further objection. Arambula diagnosed Day with “paraphilia not otherwise specified with features of sadism,” alcohol abuse, and “personality disorder not otherwise specified with features of antisocial personality.” Arambula explained that he used that diagnosis, rather than a diagnosis of sadism, because while the behavior occurred over a period greater than six months, it only repeated itself three times within four years. Arambula also explained that in evaluating cases he determines what the details of the rape are and then places the act on a continuum of violence, considering the intensity and degree of sexual violence. According to Arambula, Day minimized what happened in the assaults.

Day argues that his own testimony established that his account of the incidents varied from that contained in the records, and he suggests that the repeated recounting of the details of the offenses and other bad acts that are revealed in his records served to create outrage in the jury without adding to the determination of a behavioral abnormality. But Dunham diagnosed Day with antisocial personality disorder, while Arambula made a diagnosis of personality disorder not otherwise specified with features of antisocial personality. Arambula explained that at the time he evaluated Day the information available to him did not meet the criteria for determining that Day had conduct disorder during his youth, while Dunham considered Day's non-sexual criminal history to be very important in determining that Day has a personality disorder. Dunham further explained that the details of the offense reveal risk factors, such as lack of empathy, and behavior while incarcerated helps reveal that Day continues to victimize others. Although both Dunham and Arambula conclude that Day has a behavioral abnormality, the information each expert considered and the analytical process each expert employed differed from each other and from Quijano. Having each expert to explain which facts were considered and how those facts influenced his evaluation assisted the jury in weighing each expert's testimony and the opinion each offered regarding the ultimate issue in the case. In re Commitment of Wilson, No. 09–08–00043–CV, 2009 WL 2616921, *9–10 (Tex.App.-Beaumont Aug. 27, 2009, no pet.) (mem. op.). We also presume the jury followed the trial court's limiting instruction. Id. at *9 We hold the trial court acted within its discretion in allowing the experts to discuss the details of the offenses and other bad acts committed by Day that are contained in the records they reviewed. We overrule issue one.

EXCLUDED EVIDENCE

In issue two, Day contends the trial court erred in sustaining the State's objection to Day's testimony concerning the nature of major and minor disciplinary actions during his incarceration. The State called Day as a witness during its case-in-chief. During that examination, counsel asked Day about the disciplinary actions he received during his incarceration. Counsel mentioned the type of infraction involved in thirteen of the thirty-nine disciplinary actions. On the defense's case-in-chief, Day's counsel asked Day to describe a disciplinary infraction. Day explained that breaking a rule while in the correctional system would result in a disciplinary infraction, and that there are minor and major disciplinary infractions. Day gave an example of a major infraction and explained that the Texas Department of Criminal Justice classes infractions by three levels, that is, major, discretionary major or minor, and automatic minor. When counsel asked Day to provide an example of a minor infraction, the State objected on grounds of relevance, and the trial court sustained the objection. Counsel explained that the State had developed testimony about major and minor infractions and he wanted Day “to clear up what they are.” The trial court noted that “I don't think Mr. Day can clear it up for them.” Later in Day's testimony, counsel for the State asked Day about a number of infractions that counsel identified as “major” cases and Day's counsel asked Day about a number of infractions that counsel referred to as “minor” infractions.

On appeal, Day argues that the proffered testimony was relevant because the State repeatedly referred to “major” infractions in their...