in Re Commitment of Lester Bertram Williams ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00270-CV
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IN RE COMMITMENT OF LESTER BERTRAM WILLIAMS
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-11-12742 CV
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MEMORANDUM OPINION
Lester Bertram Williams (Williams) 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) (SVP statute). In three
appellate issues, Williams complains about certain comments the trial court judge
made during voir dire and in the presence of the jury, and he argues that this
Court’s decision in In re Commitment of Richard, No. 09-13-00539-CV, 2014 Tex.
App. LEXIS 6974 (Tex. App.—Beaumont June 26, 2014, pet. denied) (mem. op.),
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cert. denied, No. 14-8485, 2015 U.S. LEXIS 2449 (Apr. 6, 2015), renders Chapter
841 unconstitutional. We affirm the trial court’s judgment.
COMMENTS BY THE TRIAL COURT JUDGE
In issues one and two, Williams argues that the trial court judge improperly
commented on the weight of the evidence during voir dire and during the trial.
Williams’ first issue complains of the following comments the trial court judge
made during voir dire:
Now, a topic we talk about in this courtroom many times is the
issue of pedophilia. Okay? We talk about the issue of homosexuality.
Okay? You can expect to hear from a doctor or doctors during this
trial because this is sort of one of them psychological requirements.
Right? And who comes in and testifies about those? Psychologists,
psychiatrists, those type of individuals.
What you know about the issue of pedophilia is what you’ve
read on the Internet -- and we know that’s never wrong -- what you’ve
been told, unless you have some higher education in this area. If
you’re lucky enough to make the jury panel -- I use that word lucky
because it’s a little sugar, making it a little better for you -- you’ll
learn something in this trial.
....
Now, I want to make sure -- like I said, if somebody has been
diagnosed a pedophile -- the expert will come in and tell you what that
means. But I have to make sure you can be a fair and impartial juror to
Mr. Williams. So is there anybody that didn’t say “no” to that
question that wants to change their answer and has thought about it
and says: Well, I can’t be fair to somebody that’s been diagnosed a
pedophile?
Williams’ second issue complains about comments that the trial court judge
made when Williams’ attorney was cross-examining the State’s expert witness, Dr.
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Michael Arambula. Arambula testified that, based on his pre-trial examination, he
did not initially diagnose Williams with pedophilia because Williams lacked a six-
month duration for pedophilic acts or urges as required by the Diagnostic and
Statistical Manual (DSM). At trial, Williams admitted he lied to Arambula.
Arambula then explained that he “adjusted [his] diagnosis[]” because
[Williams] essentially wiped out a good portion of the information
that he provided me. And so, that leaves me with the records and the
two victims. And if -- in that case, then, because this happened for one
to two years, that would -- that would meet DSM criteria.
Williams’ attorney asked about the DSM six-month requirement for a pedophilia
diagnosis, and the following exchange occurred:
[WILLIAMS’ COUNSEL] Q: Okay. If I said that under F.65G.3 of
the ICD-10, the classification of mental and behavioral disorders, that
one of the requirements for pedophilia is that the preference has been
present for at least six months, would you believe that?
[DR. ARAMBULA]: Sounds like there was a DSM mole --
[STATE’S COUNSEL]: Object to lack of --
[DR. ARAMBULA]: -- in that committee.
[STATE’S COUNSEL]: We object to lack of foundation.
[TRIAL COURT JUDGE]: I don’t really know what the relevance of
that is to whether your client has a behavioral abnormality or not. So
let’s get back to whether your client has a behavioral abnormality or
not. Okay?
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[WILLIAMS’ COUNSEL]: Your Honor, the relevance is that the
doctor said it’s not in the literature anywhere. This is literature saying
exactly that.
[TRIAL COURT JUDGE]: No. Ask relevant questions about your
client and whether he has a behavioral abnormality or not. Okay?
[WILLIAMS’ COUNSEL]: Yes, Your Honor.
[TRIAL COURT JUDGE]: That’s not relevant in this trial because it’s
occurred for more than six months.
[WILLIAMS’ COUNSEL]: I don’t --
[TRIAL COURT JUDGE]: -- this trial occurred more than -- he said
it’s occurred for more than six months. Okay? It’s what the records
show. So ask your next question. In some trials I could see where it
might be relevant, but this one it is not. Okay. Ask your next question.
Williams argues that the comments the trial court judge made during voir
dire constitute “a blatant expression of the trial court’s belief that the State’s expert
was a credible and reliable source for information about pedophilia[]” because the
court was aware that only the State would be presenting expert testimony.
Williams also argues that the remarks the trial court judge made during the cross-
examination on the DSM’s six-month requirement were improper comments on the
weight of the evidence because the comments “directly communicated to the jury
[the court’s] opinion on the case,” they encouraged the jury to consider hearsay
basis evidence for its truth, and they left “the indelible impression that . . . the trial
court agreed with Dr. Arambula.”
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A party complaining of an alleged improper comment by the trial court must
show not only that the trial court’s comments were improper but also that the
improper comment caused harm. See World Car Nissan v. Abe’s Paint & Body,
Inc., No. 04-12-00457-CV, 2013 Tex. App. LEXIS 9442, at *8 (Tex. App.—San
Antonio July 31, 2013, pet. denied) (mem. op.). “We examine the record as a
whole to determine whether the comment unfairly prejudiced the complaining
party.” Id. We will reverse the judgment only when the trial court’s comments are
improper and probably caused the rendition of an improper judgment. Id. at **7-8;
see also Tex. R. App. P. 44.1.
To preserve error regarding a judge’s comments during a trial, a party must
both object to the comment when made and request an instruction, unless an
instruction concerning the comment would not have rendered the comment
harmless. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); In re
Commitment of Vanzandt, 156 S.W.3d 671, 674 (Tex. App.—Beaumont 2005, no
pet.). The party complaining that a court’s comments were improper bears the
burden to explain how such comments were incurable by an instruction and that it
would excuse the claimant’s failure to preserve error. See In re Stuteville, No. 01-
13-00921-CV, 2015 Tex. App. LEXIS 2243, at **33-34 (Tex. App.—Houston [1st
Dist.] Mar. 10, 2015, no pet. h.) (mem. op.).
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The record shows that Williams failed to object to the comments during voir
dire or during the trial and that he failed to ask for any instructions to mitigate the
impression he claims the trial court’s comments gave the jury. However, he argues
that he had no obligation to object to these comments because the resulting harm
could not have been cured by a proper instruction.
Assuming, without deciding, that the trial court’s comments were improper,
we conclude that Williams’ complaints about these matters could have been cured
by a proper instruction. On request, the trial court could have instructed the jury to
disregard its remarks and could have explained that its comments were not a
reflection of the trial court’s views regarding the merits of Williams’ case or of the
testimony, if any, which may or may not be offered by any particular witness. Such
an instruction, in our opinion, would have been a sufficient remedy that would
have cured any alleged prejudice that might relate to the trial court’s comments at
issue.
We further consider the court’s comments in the context of the entire record.
See In re Commitment of Winkle, 434 S.W.3d 300, 313 (Tex. App.—Beaumont
2014, pet. filed) (citing In re Commitment of Barbee, 192 S.W.3d 835, 848 (Tex.
App.—Beaumont 2006, no pet.). During voir dire, the trial court judge also told the
venire to keep an open mind and to listen to the evidence.
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[I]f people are not willing to keep an open mind and listen to
evidence, then the laws which our Legislature pass don’t mean
anything.
....
I’ve got to make sure that if we’re talking about the issue of
pedophilia or somebody that has been diagnosed a pedophile that you
can be a fair and impartial juror. Everybody understand what I’m
talking about? I want to make sure we’re not hitting on an area that
hits too close to home. Like I said, if [it] deals with pedophilia,
homosexuality, you can still be a fair and impartial juror for both the
State and Mr. Williams.
....
Jurors judge the credibility of witnesses. That’s what jurors do. Okay?
Williams’ attorney also told the venire,
[T]he Judge told you a little bit earlier that jurors are -- you’re
charged with weighing the credibility of the expert or whoever is
testifying.
....
Well, again, you would -- if you make it onto the jury[,] it’s
your job to determine whether or not an expert is credible.
During trial, Williams’ attorney requested a limiting instruction concerning
the expert’s basis evidence, and the court then gave a limiting instruction to the
jury. The jury charge instructed the jury that “[y]ou are the sole judges of the
credibility of the witnesses and the weight to give their testimony.” The jury
charge also reiterated the court’s limiting instruction concerning the hearsay
evidence upon which the expert based his opinion. We presume the jury followed
the trial court’s limiting instruction and the jury charge. See Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009) (“The jury is
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presumed to have followed the court’s instructions.”); In re Commitment of Day,
342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied) (“We also
presume the jury followed the trial court’s limiting instruction.”). Examining the
record as a whole, we determine the complained-of comments did not unfairly
prejudice Williams. See World Car Nissan, 2013 Tex. App. LEXIS 9442, at *8.
We overrule Williams’ first and second issues.
IN RE COMMITMENT OF RICHARD
In his third issue, Williams contends that this Court’s decision in In re
Commitment of Richard, 2014 Tex. App. LEXIS 6974, renders Chapter 841
unconstitutional. We recently addressed and rejected this same argument in In re
Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex. App. LEXIS 1098, at
**24-29 (Tex. App.—Beaumont February 5, 2015, no pet. h.) (mem. op.). For the
same reasoning outlined in Lucero, we reject Williams’ arguments and overrule
issue three.
Having overruled all of Williams’ issues, we affirm the trial court’s
judgment.
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AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on December 22, 2014
Opinion Delivered May 7, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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