in Re Commitment of William Paul Weissinger

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00486-CV
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IN RE COMMITMENT OF WILLIAM PAUL WEISSINGER
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-01-00208 CV
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MEMORANDUM OPINION
The State of Texas filed a petition to commit appellant William Paul
Weissinger as a sexually violent predator. See Tex. Health & Safety Code Ann. §§
841.001-.151 (West 2010 & Supp. 2012). A jury found that Weissinger is a
sexually violent predator, and the trial court signed a final judgment and order of
civil commitment. Weissinger raises seven appellate issues for our consideration.
We affirm the trial court’s judgment and order of civil commitment.
ISSUE ONE
In his first issue, Weissinger argues the evidence is legally insufficient to
support a finding that he will likely commit a predatory act for the primary purpose
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of victimization. When reviewing the legal sufficiency of the evidence, we review
all of the evidence in the light most favorable to the verdict to determine whether a
rational jury could have found, beyond a reasonable doubt, that Weissinger is a
sexually violent offender. See In re Commitment of Mullens, 92 S.W.3d 881, 885
(Tex. App.—Beaumont 2002, pet. denied). It is the fact finder’s responsibility to
fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. Id. at 887.
Pursuant to the SVP statute, the State must prove beyond a reasonable doubt
that “the person is a sexually violent predator.” Tex. Health & Safety Code Ann. §
841.062(a) (West 2010). The SVP statute defines “sexually violent predator” as a
person who “(1) is a repeat sexually violent offender; and (2) suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence.” Id. § 841.003(a) (West 2010). The statute defines “behavioral
abnormality” 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 a menace to the health and
safety of another person.” Id. § 841.002(2) (West Supp. 2012). The inability to
control behavior “must be sufficient to distinguish the dangerous sexual offender
whose serious mental illness, abnormality, or disorder subjects him to civil
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commitment from the dangerous but typical recidivist convicted in an ordinary
criminal case.” Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d
856 (2002).
The record contains legally sufficient evidence from which the jury could
determine that Weissinger is a sexually violent predator and is likely to commit
predatory acts of sexual violence against individuals for the primary purpose of
victimization. Board-certified forensic psychiatrist Dr. Michael Arambula testified
that based on interviews with Weissinger, Weissinger’s records and history, and
his diagnosed conditions, Weissinger has a behavioral abnormality that makes him
likely to commit predatory acts of sexual violence. The jury heard evidence
concerning Weissinger’s risk factors, including his criminal history, repeated
sexual offenses, the ongoing nature of his abuse of some of his victims, minimal
acceptance of responsibility for his offenses, lack of remorse or empathy with his
victims, reoffending despite sex offender treatment, a disciplinary case during his
incarceration, his diagnosis of sexual deviance in the form of both pedophilia and
paraphilia not otherwise specified with sadistic features, and his tendency to
behave in an antisocial manner by committing offenses that exploit or take
advantage of other individuals. The jury also heard Arambula testify on cross-
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examination, when Weissinger’s defense counsel asked Arambula if he considered
whether Weissinger’s primary purpose was victimization, as follows:
[W]hen someone like Mr. Weissinger commits a sexual offense or a
sexual assault, . . . embedded in that act is a victim that can’t be
separated. So when an individual does that, they’re cognizant that it’s
illegal, that the victim is being victimized, and that’s what I look at. It
just so happens that sexual enjoyment is coupled with that, but
embedded in any sexual offense is a victim.
The jury could reasonably conclude that Weissinger is likely to engage in a
predatory act of sexual violence. See Mullens, 92 S.W.3d at 887; see also In re
Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—Beaumont 2003, pet.
denied); In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App.
LEXIS 9930, at *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.).
The jury could reasonably conclude that Weissinger has serious difficulty
controlling his behavior and is likely to commit predatory acts of sexual violence
directed toward individuals for the primary purpose of victimization. See Mullens,
92 S.W.3d at 887; see also Almaguer, 117 S.W.3d at 506; Burnett, 2009 Tex. App.
LEXIS 9930, at *13. Such conclusions are implicit in the jury’s finding that
Weissinger is a sexually violent predator, which the charge defined as a repeat
sexually violent offender who suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. See In re Commitment of
Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at *16 (Tex. App.—
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Beaumont Jan. 15, 2009, no pet.) (mem. op.) (citing Almaguer, 117 S.W.3d at
505); see also In re Commitment of Bailey, No. 09-09-00353-CV, 2010 Tex. App.
LEXIS 6685, at **12-14 (Tex. App.—Beaumont Aug. 19, 2010, no pet.) (mem.
op.). Reviewing all of the evidence in the light most favorable to the verdict, a
rational jury could have found, beyond a reasonable doubt, that Weissinger is a
sexually violent predator who is likely to commit predatory acts of sexual violence
directed toward individuals for the primary purpose of victimization; therefore, the
evidence is legally sufficient. See Crane, 534 U.S. at 413; Mullens, 92 S.W.3d at
885. We overrule issue one.
ISSUE TWO
In his second issue, Weissinger asserts that the trial court erred by
compelling him to respond to the State’s requests for admissions “which
encompassed an ultimate fact issue[.]” Specifically, Weissinger complains of
request for admission number twenty-three, in which the State asked Weissinger to
admit “Even though I knew it was wrong to sexually offend, I did it anyway.”
Weissinger filed a motion for protective order, in which he asked the court “to
protect him from Petitioner’s Requests for Admissions.” In the motion, Weissinger
objected “to each request for admission[] numbered 1 thru 69 on the ground that
the requested admissions address either an ultimate issue or an ultimate
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circumstance or fact[,]” and that the requests were “sought to deny [Weissinger]
his right to a jury trial and to prevent [Weissinger] from providing a defense in this
pending litigation.” Weissinger also contended that permitting the State to use
requests for admissions against him would deprive him of his right to require the
State to prove its case beyond a reasonable doubt. Weissinger did not complain
specifically about request number twenty-three, but raised the same objections with
respect to each of the sixty-nine requests for admissions propounded by the State.
After the trial court denied his motion for protective order, Weissinger responded,
“Admit” to request number twenty-three.
Weissinger complains, for the first time on appeal, that request for admission
number twenty-three coerced him into admitting that he has serious difficulty
controlling his behavior, which is an element that the State must prove to civilly
commit him as a sexually violent predator. See Tex. Health & Safety Code Ann. §
841.002(2); Crane, 534 U.S. at 413. An issue on appeal must comport with an
objection made at trial; otherwise, the appellate complaint is waived. See Moser v.
Davis, 79 S.W.3d 162, 169 (Tex. App.—Amarillo 2002, no pet.); see also Tex. R.
App. P. 33.1(a). However, even if Weissinger had properly preserved the issue, an
affirmative answer to request for admission number twenty-three demonstrates
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only that he knew that his behavior was wrong, but engaged in it nevertheless. We
overrule issue two.
ISSUE THREE
In his third issue, Weissinger challenges the trial court’s decision to grant the
State’s motion for protective order regarding the requests for admissions he
propounded to the State. Weissinger propounded fifty-six requests for admissions
to the State, and the State filed a motion for protective order, in which the State
argued that the requests sought irrelevant information, were not reasonably
calculated to lead to the discovery of admissible evidence, and should instead be
directed to the State’s experts or other witnesses. The trial court granted the State’s
motion for protective order and ordered that the State was only required to answer
requests for admissions twenty-eight and fifty. 1
A party generally may obtain discovery regarding any non-privileged matter
that is relevant to the subject matter of the case. Tex. R. Civ. P. 192.3(a). Requests
for admissions are intended to simplify trials, and are useful in addressing
uncontroverted matters. Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011). We
will reverse the trial court’s discovery ruling if Weissinger shows that the trial
1
Request for admission number twenty-eight asked the State to admit that
Weissinger is an inmate of TDCJ, and request number fifty asked the State to
admit Weissinger’s date of birth.
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court abused its discretion and the trial court’s error probably caused the rendition
of an improper judgment. See Tex. R. App. P. 44.1(a); Hallum v. Hallum, No. 01-
09-00095-CV, 2010 Tex. App. LEXIS 9541, at *23 (Tex. App.—Houston [1st
Dist.] Dec. 2, 2010, no pet.) (mem. op.).
Assuming without deciding that the trial court abused its discretion by
granting the State’s motion for protective order, we conclude that any error was
harmless. The record indicates that Weissinger’s counsel deposed Arambula and
Weissinger’s expert witness, and the trial court’s docket control order required the
State to produce the Multi-Disciplinary Team referral packet. See In re
Commitment of Perez, No. 09-12-00132-CV, 2013 WL 772842, at *6 (Tex. App.—
Beaumont Feb. 28, 2013, pet. denied) (mem. op.); see also In re Commitment of
Sprague, No. 09-10-00228-CV, 2011 Tex. App. LEXIS 4503, at **13-14 (Tex.
App.—Beaumont June 16, 2011, no pet.) (mem. op.). Because the record
demonstrates that Weissinger had access to other sources to obtain the information
he sought in his requests for admissions, any error by the trial court in granting the
State’s motion for protective order did not cause the rendition of an improper
judgment or prevent Weissinger from presenting his case on appeal. See Tex. R.
App. P. 44.1(a); Perez, 2013 WL 772842, at *6.
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In his reply brief, Weissinger argues that this Court incorrectly decided
Perez because this Court did not apply the rule of Ford Motor Co. v. Castillo, 279
S.W.3d 656 (Tex. 2009). Weissinger asserts that “Castillo stands for the
proposition that a denial of discovery is per se reversible error if the suppressed
information does not appear in the appellate record thereby preventing a party from
adequately prosecuting an appeal on that basis.” In Castillo, the plaintiffs filed a
products liability lawsuit for personal injuries sustained in an automobile accident,
and the parties settled the case while the jury was deliberating. Castillo, 279
S.W.3d at 659. The settlement took place after the presiding juror sent a note to
the trial judge that asked the maximum amount that could be awarded, and based
upon later discussions with the jury, the defendant suspected that an outside
influence might have been brought to bear on the presiding juror. Id. The trial court
refused to allow the defendant to conduct any discovery regarding the outside
influence issue, and the defendant withdrew its consent to the settlement
agreement. Id. at 659-61. The plaintiffs moved for summary judgment, alleging
breach of the settlement, and the trial court granted summary judgment in favor of
the plaintiffs. Id. at 660-61. Unlike the situation faced by the Castillo court, the
proposed discovery (in this case, requests for admissions) appear in the record, and
the record reveals that Weissinger was allowed to conduct discovery by other
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means. See id. at 659-61, 667. For all the reasons discussed above, we overrule
issue three.
ISSUE FOUR
In issue four, Weissinger challenges the trial court’s refusal to permit his
counsel to question the venire during voir dire regarding the concept of “serious
difficulty in controlling behavior.” We review the trial court’s refusal to permit
lines of questioning during voir dire under an abuse of discretion standard. In re
Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011). “‘[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)).
To preserve error, a party must make a timely request that makes clear by
words or context the grounds for the request and by obtaining an express or
implicit ruling on the request. Id. (citing Tex. R. App. P. 33.1). For an appellate
court to determine whether a trial court abused its discretion by restricting voir
dire, the complaining party must adequately apprise the trial court of the nature of
the inquiry he wishes to make of the venire panel. Hyundai Motor Co. v. Vasquez,
189 S.W.3d 743, 758 (Tex. 2006); see also In re Commitment of Barbee, 192
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S.W.3d 835, 847 (Tex. App.—Beaumont 2006, no pet.) (“Because Barbee’s
counsel did not propose alternative questions, or articulate a desired line of inquiry,
we cannot know whether the trial judge would have allowed proper questions[.]”).
To preserve a complaint that the trial court improperly restricted voir dire, the
complaining party must timely alert the trial court as to the specific manner in
which it intends to pursue the inquiry so that the trial has the opportunity to cure
any error. Hyundai, 189 S.W.3d at 758; see also Tex. R. App. P. 33.1(a).
“Generally, where counsel merely states a subject area in which he wishes to
propound questions, ‘but fails to present the trial court with the specific questions
he wishes to ask, the trial court is denied an opportunity to make a meaningful
ruling and error is not preserved.’” In re Commitment of Polk, No. 09-10-00127-
CV, 2011 WL 662928, at *3 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied)
(mem. op.) (quoting Odom v. Clark, 215 S.W.3d 571, 574 (Tex. App.—Tyler
2007, pet. denied)).
Weissinger complains of the following colloquy during his counsel’s voir
dire examination:
[Defense counsel]: With respect to behavior abnormality, Texas law
provides that a condition that affects a person’s emotional or
volitional capacity to the extent that he is predisposed to commit a
sexually violent offense causes the person to have serious difficulty –
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[State’s counsel]: Objection, that’s a misstatement of the law. This is
not defined.
THE COURT: [Defense counsel], what are you trying to define?
[Defense counsel]: I’m focusing on Texas law as it applies to the
effect on a [person’s] emotional or volitional capacity.
THE COURT: We just need to be going with the statute. Okay?
[Defense counsel]: That’s not the limit of Texas law, Your Honor.
THE COURT: For this case it’s what’s in the Texas statute. Please,
again, don’t disagree with the Court when the Court is telling you
something.
I just want to tell the ladies and gentlemen, regardless of what
these lawyers are telling you, when we get to the end and my 12 jurors
are sitting over there I’m going to give you the law, and that’s all
you’ve got to follow. You may proceed.
[Defense counsel]: Are you going to allow me to go into the current
State of Texas law with the effect on a person’s emotional or
volitional capacity?
THE COURT: I don’t know what you’re talking about here. So ask
your question; you make your objection.
[Defense counsel]: So have to have serious difficulty controlling your
behavior –
[State’s counsel]: Objection to this statement. This is not the
applicable current Texas law.
THE COURT: We need to talk about the current applicable Texas
law. Not other State[s’] laws; just the State of Texas’[s] law. It’s
codified in the books, so that’s what I’m going to allow you to talk
about. Okay.
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[Defense counsel]: So I can’t –
THE COURT: My ruling is you talk about what’s in the statute. It’s
14 pages. Would you like a copy of it here? You can go over it with
the venire panel if you need to. Next question, please.
[Defense counsel]: So I’m not going to be allowed to talk about case
law?
THE COURT: Correct. Thank you.
[The State]: And at this time I object to this slide highlighting in red
the primary purpose. That does not have a definition.
[Defense counsel]: I didn’t say that it did.
THE COURT: Whoa, whoa. Does that definition track the statute?
[The State]: The definition does track the statute.
THE COURT: Okay. He can talk about the definition then. You may
proceed, [defense counsel].
[Defense counsel]: Thank you, Your Honor.
In order to qualify as a sexually violent predator the State has to
prove that Mr. Weissinger suffers from a behavior abnormality that
makes him likely to engage in a predatory act. Predatory act is defined
in the statute as an act directed toward individuals, including family
members, for the primary purpose of victimization. So the State has to
prove that, whatever offenses they claim he’s going to commit in the
future, will be committed for the primary purposes of victimization.
The record as quoted above demonstrates that although defense counsel
indicated that he desired to question the venire panel concerning Texas case law
regarding emotional or volitional capacity, counsel did not proffer specific
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questions that he wished to ask. Therefore, we conclude that Weissinger failed to
preserve the issue for appellate review. See Polk, 2011 WL 662928, at *3; Barbee,
192 S.W.3d at 847; see also Tex. R. App. P. 33.1(a). Accordingly, we overrule
issue four.
ISSUES FIVE, SIX, AND SEVEN
In issue five, Weissinger complains of the trial court’s refusal to permit him
to cross-examine Arambula concerning whether he had read any of the judicial
opinions regarding Chapter 841. In issue six, Weissinger challenges the trial
court’s refusal to allow him to cross-examine Arambula regarding his
understanding of the concept of serious difficulty controlling behavior. In issue
seven, Weissinger challenges the trial court’s refusal to permit him to cross-
examine Arambula regarding his rate of error. We address issues five, six, and
seven together.
After the trial court refused to permit Weissinger’s counsel to cross-examine
Arambula regarding his familiarity with judicial opinions, his understanding of the
concept of serious difficulty controlling behavior, and his rate of error, Weissinger
made an offer of proof. During his offer of proof, Weissinger questioned Arambula
concerning whether he taught that Chapter 841 was intended to apply to a small
but extremely dangerous group of individuals who are not amenable to traditional
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mental illness modalities, and Arambula responded that he “spoke about these
commitment proceedings as reserved for particularly dangerous sex offenders, just
like the statute describes.” Arambula also testified during the offer of proof that the
evaluation of sexual dangerousness is generally “an active component of one’s
forensic practice[.]” Arambula explained that he teaches about the group of
sexually violent predators who are not amenable to traditional mental illness
treatment modalities, as follows:
[B]ecause this has to do with civil commitment, people who are
civilly committed go to state mental hospitals, especially in our state.
And those contain usually . . . serious illnesses like schizophrenia,
severe bipolar disease. And it’s those types of treatment interventions
that sex offenders would probably be exposed to in the state hospital,
and they clearly don’t fit in there, through the normal civil
commitment process.
So there has to be a separate type of involuntary treatment
that’s individualized to the treatment of sex offenders, and that
literature is broad. It exists all over this country. And so when I
explained to the fellows how this law emerged from civil
commitment, that was the reason, is because they’re not sent to the
state mental hospitals.
When asked whether he taught people that to meet the definition of a behavioral
abnormality, the subject must have serious difficulty controlling his behavior,
Arambula testified as follows, in pertinent part:
I can’t say that I have used that term specifically. I know that you like
to use that term, but I haven’t borrowed your phrase. I would rather
talk about the model, the rigor of evaluating sexual dangerousness,
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and that in cases that involve behavioral abnormality, these are
particularly dangerous individuals who have serious illness. And so …
because it’s a serious illness, it’s more dangerous than other illnesses,
. . . everything is just amplified, including decision making, how often
it emerges. The details are typically more forceful, if I can use that
term.
Arambula testified that he teaches practitioners “to look for how the sexual
deviance overcomes normal brain functioning, and to try as best as we can to
explore that [in] an interview.” Arambula further testified that he teaches
practitioners to extract as many details about the offense as possible, but he also
explained, “[m]any times just reading records, it’s pretty obvious the individual
can’t control himself because no normal person would do that to a victim . . . .”
Arambula explained that “because of their serious[] illness . . . everything is
amplified. The degree of victimization, the frequency of victimization, the details
many times are worse than garden-variety sex offenders. So I explain that they
have to assess the severity of the illness, and those details speak for themselves
once a clinician evaluates it.”
When defense counsel asked Arambula whether he was familiar with the
supervision people in civil commitment receive, the trial court interjected, “You
don’t have to answer that question. . . . Put your question on the record. . . . Half
of them I won’t let you[] answer, because that’s just clearly not allowed. What’s
your next question, [defense counsel]?” Defense counsel then asked Arambula
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whether he had read any reported judicial opinions regarding Chapter 841, and the
trial judge again stated that he would not allow Arambula to answer.
When defense counsel asked Arambula what his rate of error is “with
respect to the number of people that you have determined to have a behavioral
abnormality that makes them likely to engage in a predatory act of sexual
violence,” and qualified that he was asking whether anyone Arambula had opined
was a sexually violent predator had “gone on to engage in a predatory act of sexual
violence[,]” the trial judge interjected, “No, because they’re locked up. That’s why
that question is not allowed. That is misleading to the jury. That’s why I don’t
allow that question.” The trial judge also refused to permit Arambula to answer
questions during the offer of proof regarding whether he was aware that the
Council on Sex Offender Treatment issued a report every two years, in which the
Council concluded that there was a zero rate of recidivism among people civilly
committed in Texas. The trial judge also refused to allow Arambula to answer
defense counsel’s question about whether the zero percent rate of recidivism meant
that none of Arambula’s opinions have been correct.
We review the exclusion of expert testimony for an abuse of discretion. In re
Commitment of Day, 342 S.W.3d 193, 218 (Tex. App.—Beaumont 2011, pet.
denied). A trial court abuses its discretion when it excludes expert testimony that is
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relevant to the issues in the case and is based on a reliable foundation. State v.
Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). The trial court’s
exclusion of evidence constitutes reversible error when the complaining party
shows that the trial court erred and that its error probably caused the rendition of an
improper judgment. Id.; see also Tex. R. App. P. 44.1(a). Excluding or admitting
evidence is likely harmless if the evidence was cumulative or the rest of the
evidence was so one-sided that the error likely made no difference in the judgment.
Cent. Expressway, 302 S.W.3d at 870. The trial court understood that the proferred
questions addressed the recidivism rate among patients who, unlike Weissinger,
were in a treatment program. Thus, the trial court had discretion to exclude a
misleading line of questions. Tex. R. Evid. 403. The fact that the trial court
improperly disallowed this line of questioning in Weissinger’s offer of proof did
not preclude Weissinger from properly presenting his appeal. Even if we assume
that there had been no recidivism in the treated class of those committed to a
treatment program, it does not follow that Arambula’s testimony that Weissinger
would likely reoffend is incorrect.
We conclude that the proferred testimony, even if relevant, was not
necessarily admissible. See In re Commitment of Hill, No. 09-11-00593-CV, 2013
WL 772834, at *7 (Tex. App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.).
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Arambula testified regarding his training, experience, and credentials, and he
explained that his methodology in evaluating Weissinger was in accordance with
his training and experience as a psychiatrist and is the accepted method in his field
for conducting a behavioral abnormality assessment. See id. Weissinger apparently
offered the testimony regarding Arambula’s familiarity with judicial opinions,
understanding of the concept of serious difficulty controlling behavior, and rate of
error in an attempt to make the jury question Arambula’s credibility and reliability.
Assuming without deciding that the trial court erred by limiting Weissinger’s
cross-examination of Arambula, given Arambula’s testimony regarding his
credentials, as well as his testimony supporting his methodology, we conclude that
any error likely made no difference in the jury’s verdict. See Tex. R. App. P.
44.1(a); Hill, 2013 WL 772834, at *7. Accordingly, we overrule issues five, six,
and seven, and affirm the trial court’s judgment and order of civil commitment.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on June 18, 2013
Opinion Delivered June 27, 2013
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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