                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-13-00346-CV
                             ____________________

         IN RE COMMITMENT OF JOHNNY LEE LEMMONS
_________________________________    ______________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-11-11614 CV
____________________________________________                        ____________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Johnny Lee Lemmons as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2013). A jury found that Lemmons is a sexually violent

predator and the trial court rendered a final judgment and an order of civil

commitment. In five appellate issues, Lemmons contends that the trial court (1)

denied his right to have an attorney present during the State’s post-petition expert

examination; (2) erroneously admitted evidence regarding the facts and details of

his prior offenses and the statutory administrative screening process; (3)

erroneously granted the State’s motion for directed verdict; and (4) made improper

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comments during trial. We affirm the trial court’s judgment and order of civil

commitment.

                                  Right to Counsel

      In issue one, Lemmons contends that he was entitled to the presence of an

attorney at the pre-trial expert examination. We have held that neither the SVP

statute nor the Fourteenth Amendment require that counsel be present during a

psychiatrist’s post-petition examination. See In re Commitment of Smith, No. 09-

13-00100-CV, 2014 Tex. App. LEXIS 667, at *10 (Tex. App.—Beaumont Jan. 23,

2014, no pet. h.) (not yet released for publication). We overrule issue one.

                              Admission of Evidence

      In issues two and five, Lemmons challenges the admission of certain

evidence. “We review a trial court’s evidentiary rulings for abuse of discretion.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re

Commitment of Salazar, No. 09-07-345 CV, 2008 Tex. App. LEXIS 8856, at *19

(Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). We will not

reverse unless the error probably caused the rendition of an improper judgment.

Tex. R. App. P. 44.1(a)(1).

      In issue two, Lemmons challenges the admission of evidence regarding the

facts and details of his prior offenses on grounds that the evidence should have

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been excluded under Rule of Evidence 403. During trial, Lemmons objected to

testimony regarding the facts of his offenses on grounds that the evidence was

more prejudicial than probative. The trial court overruled the objection and

instructed the jury that:

      [H]earsay normally is not admissible; however, certain hearsay
      information contained in records reviewed by experts is allowed into
      evidence through expert testimony. Such evidence is admitted only for
      the basis of showing the basis of the expert’s opinion.

The trial court granted Lemmons a running objection to this type of testimony.

The State’s expert, Dr. David Self, testified that Lemmons was convicted of

burglary of a building, two counts of indecency with a child by exposure, one

count of indecency of a child by contact, and aggravated sexual assault of three

girls. Self testified to the facts underlying Lemmons’s convictions for indecency

and aggravated sexual assault. There was also other evidence including the details

of Lemmons’s prior offenses including the details of Lemmons’s indecency and

aggravated sexual assault offenses. The trial court included a limiting instruction in

the jury charge.

      “[A]n expert may disclose on direct examination, or be required to disclose

on cross-examination, the underlying facts or data on which he bases his opinion.”

In re Commitment of Jackson, No. 09-12-00291-CV, 2013 Tex. App. LEXIS

13507, at *9 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op); see In re
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Commitment of Day, 342 S.W.3d 193, 197-98 (Tex. App.—Beaumont 2011, pet.

denied). The trial court “shall exclude the underlying facts or data if the danger that

they will be used for a purpose other than as explanation or support for the expert’s

opinion outweighs their value as explanation or support or are unfairly

prejudicial.” Tex. R. Evid. 705(d). “If otherwise inadmissible facts or data are

disclosed before the jury, a limiting instruction by the court shall be given upon

request.” Id.

      Lemmons did not object to the trial court’s limiting instruction given during

Dr. Self’s testimony, request a different or additional instruction, or object to the

limiting instruction contained in the jury charge. We presume the jury followed the

trial court’s limiting instructions. See Day, 342 S.W.3d at 199. The trial court could

have reasonably concluded that the facts and details related to Lemmons’s

underlying offenses would be helpful to the jury to explain how Self formed his

opinion that Lemmons suffers from a behavioral abnormality. Given the purpose

for admitting this evidence, its cumulative nature, and the trial court’s limiting

instructions, the trial court’s conclusion that the evidence was not unfairly

prejudicial was reasonable. See Jackson, 2013 Tex. App. LEXIS 13507, at *10; see

also Day, 342 S.W.3d at 199. The admission of Self’s testimony was not an abuse




                                          4
of discretion and did not cause the rendition of an improper verdict. See Tex. R.

App. P. 44.1(a)(1). We overrule issue two.

      In issue five, Lemmons challenges the admission of evidence regarding the

administrative screening process. During his testimony, Self explained that people

referred to him by the Special Prosecution Unit “have passed two screens already

that said, yes, yes, that the person has a behavioral abnormality.” Lemmons did not

object to Self’s testimony. On appeal, Lemmons contends that an assessment is

only performed once and, consequently, Self’s testimony falsely conveyed to the

jury that Lemmons had already been determined to have a behavioral abnormality

by “two screens” of experts. He contends that admission of Self’s testimony

constitutes fundamental error that may be raised for the first time on appeal. We

have held that this type of alleged error “does not fall within the narrow scope of

the ‘fundamental error’ doctrine recognized by the Texas Supreme Court.” In re

Commitment of King, No. 09-13-00255-CV, 2014 Tex. App. LEXIS 724, at *15

(Tex. App.—Beaumont Jan. 23, 2014, no pet. h.) (mem. op.). Accordingly, issue

five is not preserved for appellate review and is overruled. See id.; see also Tex. R.

App. P. 33.1.




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                                  Directed Verdict

      In issue three, Lemmons argues that there is a conflict between the Texas

Rules of Civil Procedure, which allow for a directed verdict, and the SVP statute,

which provides that in a jury trial, the “jury shall determine whether, beyond a

reasonable doubt, the person is a sexually violent predator.” Tex. Health & Safety

Code Ann. § 841.062(a) (West 2010); see Tex. R. Civ. P. 268. Because the SVP

statute controls when in conflict with the Texas Rules of Civil Procedure,

Lemmons contends that the trial court erroneously granted the State’s motion for a

directed verdict. See Tex. Health & Safety Code Ann. § 841.146(b) (West 2010).

      In an SVP case, a person “is entitled to a jury trial on demand.” Id. §

841.061(b); In re Commitment of Scott, No. 09-11-00555-CV, 2012 Tex. App.

LEXIS 8866, at *4 (Tex. App.—Beaumont Oct. 25, 2012, no pet.) (mem. op.). The

State must prove, beyond a reasonable doubt, that a person is a sexually violent

predator. Tex. Health & Safety Code Ann. § 841.062(a). A “sexually violent

predator” is a repeat sexually violent offender who suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

Id. § 841.003(a) (West Supp. 2013). In this case, the State moved for a directed

verdict on grounds that the evidence conclusively established that Lemmons is a

repeat sexually violent offender. The trial court granted the State’s motion.

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      In cases involving a jury trial, we have held that a civil commitment

proceeding is generally subject to the rules of procedure for civil cases, and the

trial court may grant a partial directed verdict to remove a certain portion of a case

from the factfinder. Scott, 2012 Tex. App. LEXIS 8866, at **4-5; see In re

Commitment of Martinez, No. 09-12-00452-CV, 2013 Tex. App. LEXIS 13512, at

*12 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.). In a civil case, the

right to a jury trial only applies when there are issues of fact to be resolved.

Rosenthal v. Boyd, No. 03-11-00037-CV, 2013 Tex. App. LEXIS 5345, at *10

(Tex. App.—Austin May 1, 2013, no pet.) (mem. op.). A directed verdict does not

violate the right to a trial by jury because it is a procedure that depends on a trial

court’s conclusion that there are no issues of fact to be determined. Id. at *11.

Accordingly, we perceive no conflict between 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. Compare Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 220

(Tex. 2011). We overrule issue three.

                                Trial Court Conduct

      In issue four, Lemmons contends that the trial court made extra-judicial

comments that demonstrated a bias in favor of the State and commented on the

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weight of the evidence during trial. To preserve error, an objection to the trial

judge’s alleged improper conduct or comment must be made when it occurs, unless

a proper instruction cannot render the conduct or comment harmless. In re

Commitment of Vanzandt, 156 S.W.3d 671, 674 (Tex. App.—Beaumont 2005, no

pet.). The record in this case does not demonstrate that Lemmons objected to the

trial judge’s comments or actions when they occurred, and we cannot say that a

proper instruction would not have rendered any error harmless. See In re

Commitment of Fields, No. 09-09-00005-CV, 2009 Tex. App. LEXIS 9548, at

**13-14 (Tex. App.—Beaumont Dec. 17, 2009, pet. denied) (mem. op.); Vanzandt,

156 S.W.3d at 674. Our review of the entire record and the trial judge’s allegedly

improper conduct does not show that Lemmons was denied a fair trial. See In re

Commitment of Conley, No. 09-10-00383-CV, 2011 Tex. App. LEXIS 7877, at *17

(Tex. App.—Beaumont Sept. 29, 2011, no pet.) (mem. op.). We overrule issue four

and affirm the trial court’s judgment and order of civil commitment.

      AFFIRMED.

                                             ________________________________
                                                     STEVE McKEITHEN
                                                        Chief Justice

Submitted on March 24, 2014
Opinion Delivered April 10, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.
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