in Re Commitment of Raymond Michael Shoemaker ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00239-CV
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IN RE COMMITMENT OF RAYMOND MICHAEL SHOEMAKER
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-10-10748 CV
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MEMORANDUM OPINION
Raymond Michael Shoemaker appeals from a jury verdict that resulted in his
civil commitment as a sexually violent predator. See Tex. Health & Safety Code
Ann. §§ 841.001-.151 (West 2010 & Supp. 2014). In one issue, Shoemaker
contends the trial court abused its discretion by denying his request to videotape
his post-petition psychiatric examination, an examination conducted at the State’s
request by Dr. Sheri Gaines, a board-certified psychiatrist. We conclude that the
trial court did not abuse its discretion by denying his request; therefore, we affirm
the judgment and order of civil commitment.
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Shoemaker argues that the rules governing discovery in civil cases required
that the trial court grant his request. We review a trial court’s discovery ruling in
SVP cases using an abuse-of-discretion standard. See In re Commitment of Malone,
336 S.W.3d 860, 862 (Tex. App.—Beaumont 2011, pet. denied); see also Tex.
Health & Safety Code Ann. § 841.146(b) (West 2010). To demonstrate that a trial
court abused its discretion in denying a request for discovery, a party must
demonstrate that the trial court acted without reference to any guiding rules and
principles, or demonstrate that it acted arbitrarily and unreasonably. E.I. du Pont de
Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To demonstrate
that the ruling on a discovery request was harmful, the party deprived of discovery
must show the trial court’s ruling probably resulted in the rendition of an improper
judgment, or show that the ruling prevented the appellant from properly presenting
his case on appeal. See Tex. R. App. P. 44.1(a).
In the request that Shoemaker filed seeking permission to videotape Dr.
Gaines’s examination, Shoemaker argued that he would not be able to “controvert
the State’s expert’s subjective statements about [Shoemaker’s] conduct during the
evaluation” without a videotape, and he suggested that “a video would disclose
whether the expert’s technique involves leading [Shoemaker] to give various
answers, directing the interview toward a particular result[.]” Shoemaker’s motion
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also argues that a videotape of the examination would have been useful to him
when his trial attorney cross-examined Dr. Gaines. Shoemaker’s motion argued
that he would not have information that would prove essential to his defense if the
trial court denied his request.
In its response, the State argued that neither the SVP statute nor the Texas
Rules of Civil Procedure require the trial court to allow the videotaping of a post-
petition psychiatric examination. The trial court denied Shoemaker’s motion, and
the examination was not videotaped.
The SVP statute does not grant a party the right to videotape the examination
by the State’s expert. In re Commitment of Ramsey, No. 09-14-00304-CV, 2015
WL 1360039, at *4 (Tex. App.—Beaumont Mar. 26, 2015, no pet. h.) (mem. op.).
The examination by the State’s expert, however, is an examination that is
authorized by one of the provisions of the statute governing SVP cases. See Tex.
Health & Safety Code Ann. § 841.061(c) (West 2010) (“The person and the state
are each entitled to an immediate examination of the person by an expert.”).
Shoemaker does not claim that the SVP statute required the examination by
Dr. Gaines to be videotaped. See id. Instead, he argues that Rule 204.1 of the Texas
Rules of Civil Procedure authorized the trial court to establish the manner and the
conditions under which a mental examination is to occur. See generally Tex. R.
Civ. P. 204.1(d) (explaining that an order for a physical or a mental examination
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under Rule 204.1(c) “must be in writing and must specify the time, place, manner,
conditions, and scope of the examination and the person or persons by whom it is
to be made”). The State contends that while the trial court could have required the
examination to be videotaped, the trial court had the discretion to deny
Shoemaker’s request because the manner and conditions the court decided to
impose were matters within its discretion. According to the State, the trial court did
not have a mandatory duty to require the exam to be videotaped under the
provisions of section 841.061 of the Texas Health and Safety Code or under Rule
204.1 of the Texas Rules of Civil Procedure.
We agree with the State that the Texas Rules of Civil Procedure do not
mandate that the court require mental examinations to be videotaped. Rule
194.2(f)(3) allows a party to discover the general substance of a testing expert’s
mental impressions and opinions, and a brief summary of the bases for the
opinions. See Tex. R. Civ. P. 194.2(f)(3). Additionally, Rule 195.3 requires that a
party seeking affirmative relief make its expert available for a deposition, and Rule
195.4 allows a party to obtain a deposition from an expert on the subject matter on
which the expert is expected to testify. See Tex. R. Civ. P. 195. However, the
Rules of Civil Procedure do not mandate that a trial court allow the party seeking
discovery to videotape the process the opposing party’s expert goes through in
forming opinions.
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We are not persuaded that the existing discovery rules involving experts do
not adequately allow the parties to fully and effectively discover the basis on which
an expert has based her opinion. We are also not persuaded that the existing rules
of discovery are inadequate to allow counsel to effectively prepare to cross-
examine an opposing expert witness in a trial—in this case, for instance, the record
shows that Shoemaker’s counsel took Dr. Gaines’s deposition prior to the trial.
We hold that Shoemaker has not shown the trial court abused its discretion
by denying his request to videotape Shoemaker’s post-petition psychiatric
examination. See Robinson, 923 S.W.2d at 558; Ramsey, 2015 WL 1360039, at *5
(concluding that due process does not require videotaping a mental examination
under section 841.061 of the Texas Health and Safety Code). We overrule
Shoemaker’s sole issue, and we affirm the judgment and order of civil
commitment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on December 29, 2014
Opinion Delivered May 7, 2015
Before McKeithen, C.J., Horton and Johnson, JJ.
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