in Re the Commitment of Anthony Bernard Wiley ( 2019 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-18-00056-CV
    IN RE THE COMMITMENT OF ANTHONY BERNARD WILEY
    On Appeal from the 89th District Court
    Wichita County, Texas
    Trial Court No. 186,685-C
    Before Morriss, C.J., Burgess and Stevens, JJ.
    Memorandum Opinion by Chief Justice Morriss
    MEMORANDUM OPINION
    In 1995, Anthony Bernard Wiley pled guilty to aggravated sexual assault 1 and to burglary
    with intent to commit aggravated sexual assault 2 and was sentenced to twenty-five years’
    imprisonment. As the end of Wiley’s sentence approached, the State filed a petition in the Wichita
    County3 district court to have him civilly committed for treatment and supervision as a sexually
    violent predator under Chapter 841 of the Texas Health and Safety Code. 4 After a jury found that
    Wiley was a sexually violent predator, the trial court entered its final judgment and an order of
    commitment that Wiley be civilly committed for treatment and supervision by the Texas Civil
    Commitment Office.
    In this appeal, Wiley claims reversible error in (1) excluding a portion of Wiley’s
    testimony, (2) prohibiting Wiley from asking proper voir dire questions, and (3) permitting the
    State to make an impermissible burden-shifting comment during closing argument. Because we
    find reversible error in prohibiting Wiley from asking a proper voir dire question, we will reverse
    the trial court’s judgment and remand this case for a new trial.
    During voir dire, Wiley sought to ask the venire, “[I]s there anybody here who would be
    like, you know, there’s certain types of victims if I hear about I know I’m not going to be able to
    1
    See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2018).
    2
    See TEX. PENAL CODE ANN. § 30.02(d) (West Supp. 2018).
    3
    Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
    Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware
    of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant
    issue. See TEX. R. APP. P. 41.3.
    4
    See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.151 (West 2017 & West Supp. 2018).
    2
    be fair in these types of cases?” The State objected, and, after an off-the-record discussion at the
    bench, the trial court sustained the objection and instructed Wiley to “move on.” At the conclusion
    of voir dire, but before the jury had been selected and seated, Wiley told the trial court:
    I just wanted to state so it’s clear that the question I was going to ask is if there’s
    anybody here who can’t be fair and impartial if they hear evidence about an elderly
    victim, specifically 65 or older. And I wasn’t -- the Court did not allow me to go
    into that. And the other question I was asking was what types of victims would
    prevent perspective jurors from being fair and impartial in these cases. And I
    anticipated that they would indicate to the second question, elderly victims in
    response to the first question. If they did indicate they could not be fair and
    impartial then I would have challenges for cause, but since I was not allowed to ask
    those questions, I was not afforded the opportunity to intelligently exercise my
    peremptory strikes.
    Wiley and the State also advised the trial court of caselaw in civil commitment cases that allows
    voir dire questions to determine whether jurors can be fair and impartial if they hear evidence
    regarding child victims, pedophilia, and homosexuality. Nevertheless, the trial court sustained the
    State’s objection to the question.
    In his second issue, Wiley argues that the trial court abused its discretion in not allowing
    him to ask the venire if anybody could not be fair and impartial if they heard evidence about an
    elderly victim, specifically sixty-five or older. Wiley contends that the trial court’s actions
    prevented him from asking a question that went to the potential jurors’ ability to give him a fair
    trial, citing In re Commitment of Hill, 
    334 S.W.3d 226
    (Tex. 2011). The State argues that the
    question was improper because it sought to determine the weight prospective jurors would give to
    the age of one of Wiley’s victims, citing Hyundai Motor Co. v. Vasquez, 
    189 S.W.3d 743
    (Tex.
    2006).
    3
    “Litigants have the right to question potential jurors to discover biases and to properly use
    peremptory challenges.” 
    Hill, 334 S.W.3d at 228
    (citing Hyundai Motor 
    Co., 189 S.W.3d at 749
    –
    50). This right is subject to reasonable control by the trial court. 
    Id. at 228–29.
    We review a trial
    court’s refusal to allow a voir dire question for abuse of discretion. 
    Id. at 229.
    “[A] court abuses
    its discretion when its denial of the right to ask a proper question prevents determination of whether
    grounds exist to challenge for cause or denies intelligent use of peremptory challenges.” 
    Id. (quoting Babcock
    v. Nw. Mem’l Hosp., 
    767 S.W.2d 705
    , 709 (Tex. 1989)).
    The Civil Commitment of Sexually Violent Predators Act provides for the civil
    commitment of a person who is nearing the end of a sentence for a sexually violent offense and
    who may be a repeat sexually violent offender. TEX. HEALTH & SAFETY CODE ANN. §§ 841.001,
    841.021(a), (a-1), (c) (West 2017). To obtain a civil commitment, the State must show that the
    person “(1) is a repeat sexually violent offender;[5] and (2) suffers from a behavioral abnormality
    that makes the person likely to engage in a predatory act of sexual violence.” TEX. HEALTH &
    SAFETY CODE ANN. § 841.003(a) (West 2017). A “behavioral abnormality” is defined as “a
    congenital or acquired condition that, by affecting a person’s emotional or volitional capacity,
    predisposes the person to commit a sexually violent offense, to the extent that the person becomes
    5
    One of the ways to show the defendant is a repeat sexually violent offender is to show that he has been convicted of
    more than one sexually violent offense and that a sentence was imposed for at least one of the offenses. TEX. HEALTH
    & SAFETY CODE ANN. § 841.003(b) (West 2017).
    4
    a menace to the health and safety of another person.” TEX. HEALTH & SAFETY CODE ANN.
    § 841.002(2) (West 2017).
    A penitentiary packet establishing that Wiley had been convicted of more than one sexually
    violent offense was admitted at a pretrial hearing for the purposes of trial. Consequently, much of
    the trial focused on Wiley’s sexual history, which formed the basis of the State’s psychologist’s
    opinion that Wiley suffers from a behavioral abnormality. The evidence showed that the victim
    of Wiley’s 1995 convictions was a sixty-eight-year-old woman. Jason Dunham, a forensic
    psychologist, testified that his review of the records of the 1995 offenses showed that, during the
    burglary, Wiley brutally beat the woman, blindfolded her, tied her hands and feet together, and
    sexually assaulted her with a knife to her throat. Dunham diagnosed Wiley as a sexual sadist who
    is aroused by violence and by the pain and suffering of another person and cited, in particular, the
    extreme and unnecessary violence Wiley committed against his sixty-eight year old victim as
    evidence of that diagnosis. He pointed to the ages of Wiley’s assault victims, which ranged from
    twenty to sixty-eight years old, as evidence of Wiley’s increased level of sexual deviancy. Based
    on Wiley’s sexual history, Dunham opined that Wiley suffers from a behavioral abnormality that
    makes him likely to engage in predatory acts of sexual violence.
    In Hill, the defendant sought to determine whether potential jurors could be able to give a
    fair trial to a person they believed to be a homosexual, but he was instructed by the trial court to
    terminate the line of questioning and to not ask a direct question about Hill’s homosexuality. 
    Hill, 334 S.W.3d at 228
    . On appeal, the Texas Supreme Court noted that
    Hill’s sexual history was part of the State’s proof of his alleged behavioral
    abnormality, yet the trial court refused questioning that went to the potential jurors’
    5
    ability to give him a fair trial. This prevented Hill from discovering the potential
    jurors’ biases so as to strike them for cause or intelligently use peremptory
    challenges.
    
    Id. at 229
    (citing TEX. GOV’T CODE ANN. § 62.105(4) (West 2013) (listing “bias or prejudice . . .
    against a party in [a] case” as grounds for disqualifying a juror)). Consequently, the court held
    that the trial court had abused its discretion by suspending the line of questioning and that such
    error was harmful. 
    Id. at 229
    –30 (finding abuse of discretion and reversing and remanding the
    case to the trial court).
    Relying on Hill, the Beaumont Court of Appeals held that a trial court abused its discretion
    when it refused to allow the defendant to ask the venire, “Would anybody on the first row find it
    hard to give someone who has been diagnosed by an expert as a pedophile a fair trial.” In re
    Commitment of Kalati, 
    370 S.W.3d 435
    , 440 (Tex. App.—Beaumont 2012, pet. denied). In
    rejecting the State’s argument that the question was a commitment question, the court stated:
    The substance of the question posed by counsel was probative of the potential
    jurors’ prejudices towards persons diagnosed with pedophilia, and the question that
    was being posed did not ask the members of the venire for their opinions about the
    strength of the evidence or suggest what weight they would give to the evidence of
    Kalati’s psychiatric diagnosis.
    
    Id. at 441.
    The court went on to note that, at least in civil commitment cases, “[t]he broad language
    in Hill allows counsel to discuss with the jury the subject’s sexual history relevant to the subject’s
    behavioral abnormality, so that counsel may discover the potential juror’s biases.” 
    Id. (citing Hill
    ,
    334 S.W.3d at 229). Likewise, other courts of appeal have held that it is an abuse of discretion,
    and that such error is harmful, when the defendant in a civil commitment case is prevented from
    inquiring into potential jurors’ biases regarding the specific sexual history of the defendant. See
    6
    In re Commitment of Porter, No. 11-18-00015-CV, 
    2018 WL 6544751
    , at *1–2 (Tex. App.—
    Eastland Dec. 13, 2018, no pet. h.) (mem. op.) (bestiality); In re Commitment of Miller, No. 09-
    11-00450-CV, 
    2012 WL 3031160
    , at *1–3 (Tex. App.—Beaumont July 26, 2012, pet. denied)
    (mem. op.) (offense against a child).
    The State seeks to distinguish Hill and Kalati, arguing that homosexuality and pedophilia
    were diagnoses and reasons for the experts’ opinions of behavioral abnormality. In Hill, the Texas
    Supreme Court stressed that it was the defendant’s sexual history that was part of the State’s proof
    of the behavioral abnormality prong of its case, which entitled Hill to discover the potential jurors’
    biases. Contrary to the State’s contentions in its brief, Dunham’s testimony showed that the
    advanced age of Wiley’s sexual assault victim was important to his opinion regarding Wiley’s
    behavioral abnormality. Further, in Miller, no diagnosis was involved. Rather, the voir dire
    question sought to determine whether the potential jurors could set aside any bias if the defendant
    had committed sexual offenses against a child. Miller, 
    2012 WL 3031160
    , at *1.
    Since Wiley’s sexual history was part of the State’s proof of his behavioral abnormality,
    we find an abuse of discretion in preventing Wiley from inquiring into the ability of the potential
    7
    jurors to give him a fair trial considering that history, and that the error was harmful. See 
    Hill, 334 S.W.3d at 229
    –30; 
    Kalati, 370 S.W.3d at 441
    . We sustain this issue. 6
    For the reasons stated, we reverse the trial court’s judgment and order of commitment, and
    we remand this case to the trial court for a new trial.
    Josh R. Morriss, III
    Chief Justice
    Date Submitted:              January 23, 2019
    Date Decided:                February 8, 2019
    6
    Because Wiley’s other issues would not provide him greater relief, we need not address them.
    8