                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00177-CV
                           ____________________


           IN RE COMMITMENT OF TOMMY QUAY EUSTACE

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-06-06638 CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Tommy Quay Eustace appeals from a judgment in a civil proceeding

resulting in his commitment as a sexually violent predator. See Tex. Health &

Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2013). In three issues,

Eustace contends that (1) the State’s petition for commitment is barred by

limitations; (2) during voir dire, his attorney was entitled to ask the venire a

question that he characterizes as proper; and (3) he was entitled to a mistrial when

the trial court made a statement during trial that he characterizes as one that



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impugned his counsel’s credibility. Because the trial court did not commit

reversible error, we affirm the trial court’s judgment.

                                     Limitations

      Eustace contends the suit is barred by limitations because the State filed its

petition more than ninety days after the multidisciplinary team referred the matter

to the Special Prosecution Unit. In response, the State argues that Eustace failed to

preserve his issue on limitations for appellate review.

      The State filed its petition on June 19, 2012. Eustace’s original answer, his

live pleading at the time of his trial, does not assert that the State’s petition was

barred by limitations. The trial court’s docket order required the parties to file

dispositive motions or pleas, including summary judgment motions, and have them

heard by oral hearing or submission by December 26, 2012. On January 3, 2013,

Eustace filed a motion for summary judgment, and his motion asserts that the

State’s petition is barred by limitations. According to Eustace’s motion for

summary judgment, the civil commitment proceeding is barred by section

841.041(b)(1) of the Texas Health and Safety Code because the civil commitment

proceeding was filed ninety-one days after the multidisciplinary team referred his

case to the Special Prosecution Unit. See Tex. Health & Safety Code Ann.

841.041(b)(1).

                                          2
      Before the trial began, Eustace did not obtain a ruling on his motion for

summary judgment. Additionally, Eustace omitted the multidisciplinary team’s

letter of referral from his exhibit list, and he did not mention his motion for

summary judgment or his proposed limitations defense when the trial court

conducted the pre-trial hearing in his case. Eustace also did not include a question

relevant to the issue of limitations in his proposed charge.

      The record also does not suggest that Eustace’s theory of limitations was an

issue the parties tried by consent. During the redirect examination of his testifying

psychologist, Dr. Roger Saunders, Eustace asked, “Now, Dr. Saunders, you’re

aware 841.041(b)(1) sets out some timelines as far as when the petition for one of

these can be filed, correct?” Dr. Saunders replied, “Yes.” When counsel followed

up by asking, “And you’re aware that that petition has to be filed within 90 days

when--[,]” the State objected that the question was not relevant. The trial court,

mentioning that a limitations defense was not included in the proposed jury charge,

sustained the objection.

      After both sides rested, Eustace made an informal bill of exceptions. During

Eustace’s bill, Dr. Saunders stated that section 841.041(b)(1) of the Texas Health

and Safety Code requires the State to file the petition ninety days from the date the

matter is referred to it by the multidisciplinary team. Dr. Saunders agreed that the

                                          3
multidisciplinary team’s referral letter is dated March 20, 2012, and that based on

the date of the letter, it appeared the State’s petition was untimely.

      During the hearing on Eustace’s bill, counsel for the State objected that

Eustace had not given it a copy of his motion for summary judgment and suggested

that section 841.041(b)(1) did not operate as a statute of limitations. Counsel for

the State also noted that SVP commitment cases are referred to the Special

Prosecution Unit by the Texas Department of Criminal Justice, not the

multidisciplinary team.

      A trial by consent may occur when the record reflects the trial court admitted

evidence without objections having been made to it on issues that were not

pleaded. “When both parties present evidence on an issue and the issue is

developed during trial without objection, any defects in the pleadings are cured at

trial, and the defects are waived.” Ingram v. Deere, 288 S.W.3d 886, 893 (Tex.

2009). In this case, the record reflects that the issue of limitations was not tried by

consent; instead, the State objected at the earliest opportunity when Eustace

attempted to introduce evidence that he contends was relevant to his theory on

limitations. Consequently, the evidence arguably relevant to Eustace’s theory of

limitations was not presented to the jury, and no questions relevant to limitations

were included in the charge the trial court submitted to the jury.

                                           4
        Because Eustace failed to plead limitations and his defense was not tried by

consent, we conclude that he failed to preserve issue one for appellate review. See

Tex. R. App. P. 33.1(a). We express no opinion regarding Eustace’s theory that the

Legislature intended section 841.041(b)(1) of the Texas Health and Safety Code to

operate as a statute of limitations. Issue one is overruled.

                                       Voir Dire

      Generally, subject to reasonable trial court control, litigants are allowed to

question potential jurors during voir dire to discover whether any of the jurors are

biased and to obtain information relevant to determining which jurors to strike. In

re Commitment of Hill, 334 S.W.3d 226, 228-29 (Tex. 2011). A trial court can

abuse its discretion in controlling voir dire if it denies a party the right to ask a

proper question during voir dire and thereby prevents a party from determining

whether grounds exist to exercise a challenge for cause or prevents a party from

intelligently using its peremptory challenges. Id. at 229.

      Eustace contends the trial court abused its discretion by failing to follow the

guiding rules and principles relevant to voir dire expressed in Hill and in another

civil commitment case, In re Commitment of Miller, No. 09-11-00450-CV, 2012

WL 3031160, at *1 (Tex. App.—Beaumont July 26, 2012, pet. denied) (mem. op.).

In Miller, we held the trial court abused its discretion when it disallowed the

                                           5
questions, “‘Can you set aside any bias if you find there’s an offense against a

child? Can you listen to all the evidence and follow the law?’” and “‘Is anyone

unable to hear topics about children? Can you listen to the evidence and follow the

law?’” Id. at **1-2.

      Eustace contends the question he wanted to ask the venire is similar to the

questions that were at issue in Miller. We disagree. During voir dire in Eustace’s

case, the trial court refused to allow counsel for Eustace to ask the question: “If

you hear an individual is committed -- has committed a sex offense against a child

on this first row here, who here -- who here thinks that that would create bias for

them?” The State objected to the question, stating that “it is improper to ask a

panelist if someone can be fair to a party who’s previously committed or was

convicted for crimes against children.” See In re Commitment of Barbee, 192

S.W.3d 835, 846 (Tex. App.—Beaumont 2006, no pet.) (concluding that the trial

court may, in its discretion, refuse to allow questions that seek to determine the

weight to be given a particular fact). After counsel refused the trial court’s request

that the question be rephrased, the trial court sustained the State’s objection.

      The State argues that the question counsel desired to ask in Eustace’s case

would have allowed Eustace’s attorney to gauge the potential jurors’ reactions to a

fact that would later be proven at trial—that Eustace had been convicted of a crime

                                           6
against a child. The State contends that by obtaining the reactions of the

individuals on the venire to that information, Eustace’s counsel sought to evaluate

the weight that individuals on the venire might place on evidence the State would

later present to establish that Eustace should be committed.

       Eustace contends that the question at issue is “semantically identical” to the

questions that we found proper in Miller. See Miller, 2012 WL 3031160, at *1. The

questions at issue in Miller sought to determine whether the members of the venire

could set aside any bias toward a person who had committed an offense against a

child and to determine whether the venire could follow the law. The question at

issue in Eustace’s case does not mention setting aside bias, nor does it seek to

determine whether the members of the venire would follow the law. In evaluating

whether the question at issue was appropriate, the trial court could reasonably view

the question as one aimed at gauging how potential jurors would react to an

isolated fact that would later be presented in the case during the trial. In contrast,

the questions posed to the venire in Miller were designed to determine whether the

potential jurors could be challenged for cause based on an inability to follow the

law.

       The trial court has the discretion to refuse to allow a question that seeks to

determine the weight to be given a particular fact. Hyundai Motor Co. v. Vasquez,

                                          7
189 S.W.3d 743, 753 (Tex. 2006).1 In Eustace’s case, the trial court could

reasonably conclude that the question at issue sought to determine the weight that

members of the venire might give to relevant evidence admitted during Eustace’s

trial. See id. at 755. Because the question was designed to preview the evidence,

and was not designed to determine if jurors could follow the law, the trial court had

the discretion to disallow it. We overrule issue two.

                                Motion for Mistrial

      In issue three, Eustace contends that in ruling on a discovery dispute the trial

court made remarks, in the jury’s presence, that reflected unfavorably on his

counsel’s credibility. He contends the remarks were prejudicial and required the

trial court to grant his motion for mistrial. We review the trial court’s ruling on a

motion for mistrial for abuse of discretion. In re Commitment of Hill, No. 09-11-

00593-CV, 2013 WL 772834, at *12 (Tex. App.—Beaumont Feb. 28, 2013, pet.

denied) (mem. op.).
      1
        In Eustace’s case, the trial court did not foreclose all inquiry on a relevant
topic. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 758 (Tex. 2006).
Counsel asked several questions about pedophilia including: “If somebody is
diagnosed as a pedophile, given that diagnosis . . . would you be able to set aside
any bias and listen to all the evidence and follow the law?” Counsel then asked “If
an individual is diagnosed as a pedophile, I guess the first question is: Do you
think that that would create a bias within you if you hear somebody is diagnosed as
a pedophile?” A significant number of venire members responded to this series of
questions. These questions were designed to reveal the potential jurors’ attitudes
about sexual offenses involving children.
                                          8
      The trial court made the comments at issue during the course of ruling on

whether Eustace’s expert psychologist, Dr. Saunders, should be allowed to discuss

documents that he had reviewed but that had not been disclosed by Eustace during

discovery. The attorneys and the court, while still in the presence of the jury,

discussed the reasons the documents had not been disclosed but did not resolve the

dispute. When it was clear to the trial court that resolving the matter required even

more discussion, the trial court sent the jury out. After discussing the dispute

further outside the jury’s presence, the trial court announced that it had decided to

overrule the State’s objection.

      When the jury returned, the trial court announced its ruling, stating: “I’m

going to overrule the Petitioner’s objections to the documents that [counsel] is

going to present to this witness and let him proceed with it. I have some grave

doubts as to whether or not there was adequate disclosure in pretrial discovery.”

The trial court added, “I would rather err on the side of giving you evidence and

letting you weigh it and decide what weight to be given to it rather than keep it

out.” At that point, Eustace’s counsel moved for a mistrial, stating: “I think that

your statements seem to reflect on my credibility.” After denying Eustace’s motion

for mistrial, the trial court, without a request to do so, stated: “If, Ladies and




                                         9
Gentlemen of the Jury, I have somehow impugned the integrity of [Eustace’s

counsel], that surely was not my intention.”

      Eustace complains that the trial court failed to cure the prejudice that it

created by its comment and that its comment about what it intended reinforced the

trial court’s criticism of counsel. He further argues that the statement regarding the

trial court’s intent did not explicitly instruct the jury to disregard the earlier

comment regarding the adequacy of Eustace’s disclosures in discovery.

      The trial court’s remark that it did not intend to impugn counsel’s integrity

addressed the complaint that Eustace made during the trial that the comment

adversely affected his counsel’s credibility. Eustace neither requested an

instruction to disregard the comment nor did he ask for a more explicit instruction.

Given the trial court’s effort to cure any possible complaint created by the trial

court’s comments which inferred that Eustace had not adequately met his pretrial

discovery obligations, and in light of Eustace’s failure to ask for a more explicit

instruction regarding the comments, we conclude that the comments at issue were

not so critical of counsel’s conduct that the jury failed to appropriately consider Dr.

Saunders’s testimony. See Hill, 2013 WL 772834, at *12. Because the trial court

did not abuse its discretion by denying Eustace’s motion for mistrial, we overrule

issue three.

                                          10
      Having overruled each of Eustace’s issues, we affirm the trial court’s

judgment.

      AFFIRMED.



                                            ________________________________
                                                      HOLLIS HORTON
                                                          Justice


Submitted on November 21, 2013
Opinion Delivered January 23, 2014

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




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