in Re Commitment of Dennis Ray Stuteville

Opinion issued March 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00921-CV
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IN RE COMMITMENT OF DENNIS RAY STUTEVILLE
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Court Case No. 12-12-13060-CV
CONCURRING OPINION
I join the majority opinion, but write separately to emphasize that the trial
court erred in (1) directing a verdict in favor of the State on the issue of whether
appellant, Dennis Ray Stuteville, is a “repeat sexually violent offender” 1 and (2)
making improper comments to the venire panel during voir dire. Moreover, but for
1
See TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1) (Vernon Supp. 2014).
the fact that we are bound by the erroneous precedent of the Beaumont Court of
Appeals in deciding the issue of the trial court’s error in directing a verdict that
appellant is in fact a “repeat sexually violent offender,” appellant would be entitled
to a new trial.
Right to Trial by Jury
In his sixth issue, appellant argues that the trial court erred in granting the
State a directed verdict on the issue of whether he is a repeat sexually violent
offender because he was entitled to a jury trial upon his timely demand, the State
had the burden to prove that he is a sexually violent predator “beyond a reasonable
doubt,” and a jury’s finding that a person is a sexually violent predator must be
unanimous. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.061(b), 841.062(a),
(b) (Vernon 2010).
Appellant correctly notes that the Sexually Violent Predator (“SVP”) Act
expressly provides that either the State or a person accused of being a sexually
violent predator is “entitled to a jury trial on demand.” Id. § 841.061(b). The SVP
Act also specifically states that the pertinent fact-finder “shall determine whether,
beyond a reasonable doubt, the person is a sexually violent predator.” Id.
§ 841.062(a) (emphasis added). And it further provides that a “jury determination
that the person is a sexually violent predator must be by unanimous verdict.” Id.
§ 841.062(b).
2
Regardless, the Beaumont Court of Appeals has, as noted in our majority
opinion, held that the same trial court did not err in directing a verdict in another
SVP Act civil-commitment case. See In re Commitment of Lemmons, No. 09–13–
00346–CV, 2014 WL 1400671, at *3 (Tex. App.—Beaumont Apr. 10, 2014, no
pet.) (mem. op.). The court did not “perceive” a “conflict between [section
841.062(a) of] the SVP statute and the Rules of Civil Procedure that precludes the
granting of a directed verdict in a jury trial when no evidence of probative value
raises an issue of material fact on the question presented.” Id. However, this
reasoning ignores the well-established meaning of the plain language of the SVP
Act, which controls over our rules of civil procedure. See TEX. HEALTH & SAFETY
CODE ANN. § 841.146 (b) (Vernon 2010).
The SVP Act provides, in no uncertain terms, that a person accused of being
a sexually violent predator has a statutory right to a jury trial. Appellant was
“entitled to a jury trial” upon his timely “demand,” and he had the right to have the
jury determine, “beyond a reasonable doubt” that he is a sexually violent predator.
Id. §§ 841.061(b), 841.062(a) (emphasis added). And such a determination “must
be by unanimous verdict.” Id. § 841.062(b).
Although the SVP Act concerns “civil” commitments, the Texas Legislature,
in crafting the statute, invoked well-established and understood constitutional and
criminal-law principles. Given the grave consequences at stake in SVP Act
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civil-commitment proceedings, it is readily apparent that the legislature chose its
words carefully, and no court is free to ignore the plain meaning of these words.
Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (“We must
enforce the statute ‘as written’ and ‘refrain from rewriting text that lawmakers
chose.’”). By directing the jury to find in favor of the State, the trial court usurped
the fact-finding authority that the legislature has clearly assigned solely to the jury
in SVP Act civil-commitment proceedings. It, thus, violated appellant’s statutory
right to a trial by jury.
As noted by Justice Scalia, the right to a jury trial “embodies ‘a profound
judgment about the way in which law should be enforced and justice
administered.’” Carella v. California, 491 U.S. 263, 268, 109 S. Ct. 2419, 2422
(1989) (Scalia, J., concurring) (quoting Duncan v. Louisiana, 391 U.S. 145, 155,
88 S. Ct. 1444, 1450 (1968)). He explained:
It is a structural guarantee that “reflect[s] a fundamental decision
about the exercise of official power—a reluctance to entrust plenary
powers over the life and liberty of the citizen to one judge or to a
group of judges.” A defendant may assuredly insist upon observance
of this guarantee even when the evidence against him is so
overwhelming as to establish guilt beyond a reasonable doubt. That
is why the Court has found it constitutionally impermissible for a
judge to direct a verdict for the State.
Id. at 268, 109 S. Ct. at 2422 (quoting Duncan, 391 U.S. at 155, 88 S. Ct. at 1450)
(emphasis added) (citation omitted). And because “with a directed verdict, ‘the
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error . . . is that the wrong entity judged’” the facts, the error cannot be harmless.
Id. (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986)).
Respectfully, the Beaumont Court of Appeals, in concluding otherwise
seriously erred in Lemmons. However, as we note in our majority opinion, because
this case was transferred to us for decision, we are bound by the holding in
Lemmons, no matter how wrong it may be. See TEX. R. APP. P. 41.3. Because the
error of the Beaumont Court of Appeals is of such importance to Texas
jurisprudence that it requires correction, it should be reviewed by our high court.
See TEX. GOV’T CODE ANN. § 22.001(a)(6) (Vernon 2004).
Improper Comments
In his seventh issue, appellant argues that certain remarks made by the trial
judge to the venire panel constituted improper comments on the weight of the
evidence because they directed the jury’s attention to the then-upcoming testimony
of the State’s expert and served to “bolster” and “vouch[] for its credibility and
reliability.”
Quoting this Court, the Texas Supreme Court has made it quite clear that our
“‘statutes, court-made rules, and judicial decisions emphatically and repeatedly
prohibit Texas judges from commenting on the weight of the evidence.’” In re
M.S., 115 S.W.3d 534, 538 (Tex. 2003) (quoting In re T.T. & K.T., 39 S.W.3d 355,
359 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). It explained that comments
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on the weight of the evidence “take many forms,” and it has “specifically
prohibit[ed] judicial comments that ‘indicate the opinion of the trial judge as to the
verity or accuracy of the facts in inquiry.’” Id. (quoting McDonald Transit, Inc. v
Moore, 565 S.W.2d 43, 45 (Tex. 1978)). Moreover, a trial judge makes an
impermissible comment on the weight of the evidence when he assumes the truth
of a material controverted fact or exaggerates, minimizes, or withdraws some
pertinent evidence from a jury’s consideration. Redwine v. AAA Life Ins. Co., 852
S.W.2d 10, 14 (Tex. App.—Dallas 1993, no writ). He also makes an improper
comment on the weight of the evidence by suggesting to the jury his opinion about
the evidence. Id. And reversal is required if an improper comment on the weight
of the evidence is one that was calculated to cause and probably did cause the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).
Here, after explaining to the venire panel that it would be deciding a civil
commitment, the trial judge informed it that he was the “only Judge in the state of
Texas” that presides over this “very serious” type of case. He then stated:
. . . the State [is] saying that a Respondent is a sexually violent
predator and the Respondent is saying: No, I’m not. That’s essentially
what’s in my file. But oftentimes, having tried this case many, many
times, we talk about issues of pedophilia, we talk about issues of
homosexuality, we talk about issues of incest. Okay? And I want to
make sure that—and I’ll tell you, especially the issue of pedophilia—
just trying to put a little sugar here on this case for you—if you’re
fortunate enough to make the jury, you know, everything that a person
knows about sexual offenses, unless you have some training in this
area, is something you were told by somebody or something you
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probably read in a magazine or on the Internet. And we all know the
Internet is never wrong. Right? If you’re lucky enough to get to serve
on this jury you can expect to hear from at least one doctor explaining
to you about these issues and explaining to you what these issues
mean. I’m not sure if any of these issues are coming up in this trial.
But if you’re lucky enough to make it on the jury it’s an educational
experience for you. You don’t get any college credit for it, but you do
become a little smarter, hopefully, through this whole process.
(Emphasis added.)
By telling the members of the venire panel that if they were lucky enough to
serve on the jury, they could expect “to hear from at least one doctor” explaining
the issues to it and obtain an “educational experience,” the trial judge stated his
positive opinion about the weight and value of the State’s expert testimony. And
the testimony of the State’s expert was critical to proving its case. In effect, the
trial judge put his thumb on the scale of justice. And his comment was improper.
See In re M.S., 115 S.W.3d at 538. However, because appellant did not object to
the improper comment and has not demonstrated that the comment was incurable, I
agree with the majority that his seventh issue should be overruled. See Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
Unfortunately, it must be pointed out that this is not the first time that the
trial judge has made such an improper comment on the weight of the evidence in
an SVP Act civil commitment case. See In re Commitment of Mailhot, No. 09-13-
00270-CV, 2015 WL 182699, at *1–2 (Tex. App.—Beaumont Jan. 15, 2015, no
pet.) (mem. op.). In Mailhot, the trial judge made an almost identical comment to
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the venire panel on the weight of the expert testimony of the State as “a very
educational opportunity.” Id. at *1. Regardless, appellant, here, did not object to
the improper comment and has not demonstrated that the comment was not
curable. See Dow Chem. Co., 46 S.W.3d at 241.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Lloyd.
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