Document Info

DocketNumber: 09-21-00099-CV

Filed Date: 3/17/2022

Status: Precedential

Modified Date: 3/18/2022

  •                                       In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    __________________
    NO. 09-21-00099-CV
    __________________
    IN RE COMMITMENT OF MALCOM BARRHAM NOLAN
    __________________________________________________________________
    On Appeal from the 128th District Court
    Orange County, Texas
    Trial Cause No. A200226-C
    __________________________________________________________________
    MEMORANDUM OPINION
    The State filed a petition to commit Malcom Barrham Nolan as a sexually
    violent predator. See 
    Tex. Health & Safety Code Ann. §§ 841.001-841.151
     (the SVP
    statute). A jury found that Nolan suffers from a behavioral abnormality that makes
    him likely to engage in a predatory act of sexual violence. See 
    id.
     § 841.003(a). The
    trial court signed a judgment and order of civil commitment. On appeal, Nolan raises
    one issue and argues that the trial court reversibly erred in sustaining the State’s
    objection to hearsay during the State’s direct examination of Nolan because the State
    “opened the door” to the testimony.
    1
    The trial court’s decision to admit or exclude evidence is reviewed under an
    abuse of discretion standard. In re J.P.B., 
    180 S.W.3d 570
    , 575 (Tex. 2005). A trial
    court abuses its discretion when it acts without regard to the guiding rules or
    principles governing the admission of evidence, or if its decision to admit evidence
    is shown to have been arbitrary or unreasonable. See Downer v. Aquamarine
    Operators, Inc., 
    701 S.W.2d 238
    , 241-42 (Tex. 1985).
    Nolan was convicted of two counts of indecency with a child by sexual contact
    and aggravated sexual assault of a child. Dr. Sheri Gaines, the State’s expert and a
    forensic psychiatrist, reviewed Nolan’s records, including the report of an evaluation
    by Dr. Thorne. Dr. Gaines concluded that Nolan suffers from pedophilic disorder,
    and that he has a behavioral abnormality.
    In Nolan’s appellate issue, he argues the trial court erred in sustaining the
    State’s hearsay objection during the following exchange during the State’s direct
    examination of Nolan:
    Q.    Mr. Nolan, have you learned in your group treatment whether
    you are at risk of re-offending based on your history of offending
    behavior?
    A.     No, not yet.
    Q.     Okay. Has that been talked about at all by your provider?
    A.     We talked about it, and she said that I probably would not.
    Because of my age and everything, I’d probably not re-offend; but
    there’s always a possibility. That I should continue therapy.
    2
    Q.     Do you –
    A.    And she said because of what happened as a child, I needed
    therapy.
    [State’s counsel]: I’m going to object to hearsay.
    THE COURT:          That’s sustained.
    According to Nolan, the State “opened the door” for hearsay testimony when it
    questioned Nolan about Nolan’s risk for re-offending and then the trial court
    reversibly erred by sustaining the State’s objection to the “invited” testimony. He
    also contends that the testimony was “substantially similar” to the testimony that
    Nolan had already given that the State did not object to, so the State waived any
    objection to the testimony by not objecting every time it was offered. However,
    Nolan failed to make these arguments in the trial court when the trial court sustained
    the State’s objection. Accordingly, he has failed to preserve this argument for our
    review. See Tex. R. App. P. 33.1(a); In re Commitment of Anderson, 
    392 S.W.3d 878
    , 883 (Tex. App.—Beaumont 2013, pet. denied) (citing Wohlfahrt v. Holloway,
    
    172 S.W.3d 630
    , 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)
    (argument on appeal must comport with the argument made at trial to be preserved
    for appeal)); see also In re Commitment of Guest, No. 02-19-00295-CV, 
    2021 Tex. App. LEXIS 2572
    , at *30 n.12 (Tex. App.—Fort Worth Apr. 1, 2021, pet. denied)
    (mem. op.) (appellant’s argument that the State “opened the door” to excluded
    3
    testimony was not preserved because appellant failed to make the argument in the
    trial court).
    That said, even if Nolan had preserved his arguments, on this record we cannot
    say the trial court abused its discretion in sustaining the objection to the testimony
    of Nolan regarding what his therapist told him. Hearsay is a statement, other than
    one made by the declarant while testifying at trial, that is offered to prove the truth
    of the matter asserted. Tex. R. Evid. 801(d). Here, the State asked Nolan whether his
    risk of re-offending based on his history of offending behavior had been discussed
    by this sex offender treatment provider, which solicited either a “yes” or “no” answer
    from Nolan and did not “invite” inadmissible hearsay testimony just because Nolan
    voluntarily proceeded to testify as to what his provider told him about reoffending,
    or about what she said in relation to “what happened to him as a child.” The trial
    court did not abuse its discretion in concluding this testimony contained hearsay.
    Further, even if the trial court’s exclusion of the testimony was erroneous, we
    conclude that the error was harmless based on the record in this case. We will reverse
    based on an erroneous evidentiary ruling only if, after reviewing the entire record,
    we conclude that the ruling probably caused the rendition of an improper judgment.
    See Tex. R. App. P. 44.1(a). A successful appellate challenge to evidentiary rulings
    usually requires the complaining party to show that the judgment turns on the
    particular evidence excluded or admitted. See Tex. Dep’t of Transp. v. Able, 35
    
    4 S.W.3d 608
    , 617 (Tex. 2000). After Nolan’s response, there was no request for a
    limiting instruction, so the jury could have considered his response. To the extent, if
    any, Nolan complains that he was erroneously precluded from testifying further on
    the matter, he failed to present such evidence to the trial court through an offer of
    proof. See In re Commitment of Day, 
    342 S.W.3d 193
    , 199-200 (Tex. App.—
    Beaumont 2011, pet. denied). After reviewing the entire record, we cannot say that
    the trial court’s ruling probably caused the rendition of an improper judgment. See
    Tex. R. App. 44.1(a).
    We overrule Nolan’s issue and affirm the judgment.
    AFFIRMED.
    _________________________
    LEANNE JOHNSON
    Justice
    Submitted on February 1, 2022
    Opinion Delivered March 17, 2022
    Before Golemon, C.J., Horton and Johnson, JJ.
    5