in Re Commitment of Daryl Holt ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-465 CV ______________________ IN RE COMMITMENT OF DARYL HOLT

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On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 05-10-08910 CV

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  MEMORANDUM OPINION

The State of Texas filed a petition to commit Daryl Holt as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp. 2006). A jury determined that Holt suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence. The trial court ordered Holt committed as a sexually violent predator. In two appellate issues, Holt argues the trial court erred in denying his motion for continuance. Finding no reversible error, we affirm the trial court's judgment.

On the morning of trial, a local newspaper published an article describing the civil commitment process. The article referred to Holt's civil commitment proceeding. It mentioned that he was previously convicted for indecency with a child, that he violated his parole by making contact with a child at a Christmas party, and that an expert report stated Holt had a "'moderate-to-high level of risk to engage in predatory acts of sexual violence after his release or discharge.'"

Holt filed a motion for continuance. At a hearing held before jury selection, Holt argued that the article was highly prejudicial because it provided details regarding his prior offenses, his parole revocation, and his likelihood to reoffend. Holt also argued that he had "no way of knowing who's read the article, [or] who's spoken to their friends about the article[.]" The trial court denied the motion for continuance.

The trial court informed the jury panel there was an article in the morning newspaper, and instructed the potential jurors not to read the paper. The court asked the potential jurors to indicate if they could not make a fair decision because of what was written in the paper. The trial court concluded the potential jurors could be fair and impartial, could disregard anything they had read about the case, and could base their decisions solely on the evidence presented. After the jury was sworn, the jurors pledged that they would not view any media coverage regarding this case or similar cases until the jury had reached a verdict.

Holt argues that he was denied due process. He says the jury was not fair and impartial. He contends that the trial court should not have relied solely on the potential jurors' answers because the potential jurors nevertheless could have been influenced by the newspaper article. In his view, a continuance of sixty days would have provided time for potential jurors to forget the specific details provided by the article.

We review a trial court's denial of a continuance for a clear abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). An abuse of discretion occurs when the trial court reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id.

Rule 251 of the Texas Rules of Civil Procedure provides in part that a continuance shall not be granted "except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251. In sexually violent predator cases, by statute, the court may continue a trial if the person is not substantially prejudiced, on the request of either party, and upon a showing of good cause. Tex. Health & Safety Code Ann. § 841.063. The statute provides the court may grant a continuance on its own motion. Id.

Though this commitment procedure is civil, cases addressing publicity surrounding a criminal trial are instructive. A trial court has the discretion to conduct an examination of the jury panel to determine whether any member of the panel has any knowledge of a case from an outside source. See McGinnis v. State, 664 S.W.2d 769, 771-72 (Tex. App.--Amarillo 1983, no pet.). The court may order the jury not to read, listen to or watch any news account of the case. See id. Generally, appellate courts do not reverse for abuse of discretion when the party asserting prejudice fails to show that any of the jurors read the article, were prejudiced by the article, formed an opinion of the case based on the article, or violated the trial court's admonishment to not read the article. See generally Lopez v. State, 628 S.W.2d 77, 81 (Tex. Crim. App. 1982); Hooks v. State, 44 S.W.3d 607, 614-15 (Tex. App.--Texarkana 2001, pet. ref'd); Hullaby v. State, 911 S.W.2d 921, 927 (Tex. App.--Fort Worth 1995, pet. ref'd); McGinnis, 664 S.W.2d at 771-72.

A trial court may also consider testimony or other evidence showing that an individual cannot receive a fair trial. See generally Esquivel v. State, 595 S.W.2d 516, 519 (Tex. Crim. App. 1980). In Esquivel, appellant filed a motion for continuance based on the publicity in his capital murder case. Id. at 518-19. At the hearing on the motion, appellant produced witnesses that testified that the factual details surrounding the crime and his prior criminal record had been reported in the media. Id. at 519. The Court of Criminal Appeals noted that appellant produced no witnesses to testify that he could not receive a fair trial, and he did not file a motion for change of venue. Id. The Court held that the trial court did not abuse its discretion in denying the continuance. Id.

In this case, the trial court questioned the jury panel, determined the panel was not influenced by the article, determined the potential jurors could be fair and impartial, and instructed the jurors not to read or listen to any media concerning the case. Holt failed to show that the jurors read and were prejudiced by the article, or that any jurors violated the court's order. He did not produce any witnesses or other evidence to show that he could not receive a fair trial.

Holt contends that because the trial court denied the motion for continuance, he was denied the opportunity to prepare a motion to transfer venue based on the negative publicity created by the article. He did not inform the trial court that he was seeking the continuance to file a motion to transfer venue. Holt failed to preserve any argument regarding the trial court's refusal to allow him to file a motion to transfer venue. See Tex. R. App. P. 33.1(a). Furthermore, a party seeking a change of venue in civil cases must show there exists in the county where suit is pending so great a prejudice against a party that the party cannot receive a fair trial. See Tex. R. Civ. P. 257(a). Generally, even in a criminal case, mere juror exposure to information concerning a defendant's prior convictions or news accounts of the crime does not, by itself, raise the presumption that a defendant cannot receive a fair and impartial trial. See Russell v. State, 146 S.W.3d 705, 710 (Tex. App.--Texarkana 2004, pet. ref'd). Holt has not shown an actual and identifiable prejudice by members of the jury. He has not shown that he failed to receive a fair trial.

Holt's issues are overruled. The judgment is affirmed.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on July 18, 2007

Opinion Delivered October 25, 2007

Before McKeithen, C.J., Gaultney and Kreger, JJ.