                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00512-CV
                           ____________________


       IN RE COMMITMENT OF ANTHONY EDWARD MCGUIRE

_______________________________________________________           _____________ _

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-02-01798 CV
________________________________________________________           ____________ _

                          MEMORANDUM OPINION

      Anthony Edward McGuire appeals from an order of civil commitment

rendered after a jury found McGuire to be a sexually violent predator. See Tex.

Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP

statute). McGuire’s appeal challenges two of the trial court’s rulings: whether the

trial court erred by allowing the State to read McGuire’s responses to requests for

admission into evidence; and, whether the trial court erred by denying McGuire’s

motion to transfer venue. We affirm the trial court’s judgment.



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      In issue one, McGuire complains the trial court allowed the State to read his

responses to the State’s requests for admission into evidence. See generally Tex. R.

Civ. P. 192.1(e) (listing permissible forms of discovery which include requests for

admission). According to McGuire, the State used his responses to the requests to

diminish the State’s burden of proving, beyond reasonable doubt, that he is a

sexually violent predator.

      Under the SVP statute, the State bears the burden of proving that the person

it seeks to commit for treatment is a sexually violent predator. Id. § 841.062 (West

2010). As defined by the Legislature, a sexually violent predator is 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).

      Unless otherwise provided by the SVP statute, an SVP commitment

proceeding is subject to the Texas Rules of Civil Procedure. See id. § 841.146(b)

(West 2010). Requests for admissions are an allowed form of discovery, as

provided in Rule 198, which provides that a matter admitted in a request “is

conclusively established as to the party making the admission unless the court

permits the party to withdraw or amend the admission.” Tex. R. Civ. P. 198.3.

There is no conflict between the SVP statute and Rule 198. See In re Commitment

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of Malone, 336 S.W.3d 860, 862 (Tex. App.—Beaumont 2011, pet. denied). We

have previously held that requests for admissions are a permissible form of

discovery in SVP cases. See id.; see also Tex. Health & Safety Code Ann. §

841.146(b).

      McGuire argues that by using his responses to the admissions, the State

lowered its burden of proof. We disagree that introducing the responses at issue

into evidence lowered the State’s burden of proof. During voir dire, the State

explained that it bore the burden to prove its case “beyond a reasonable doubt.” In

closing argument, the State argued that it had proven its case “beyond a reasonable

doubt[.]” The jury charge used in McGuire’s case placed the burden of proof on

the State, and the jury question addressing whether McGuire has a behavioral

abnormality includes the “beyond a reasonable doubt” standard.

      None of the admissions admitted into evidence address the State’s burden of

proof. While McGuire’s responses to the requests were used as evidence, his

responses were not used to lower the State’s burden of proving its case beyond a

reasonable doubt. See In re Commitment of Camarillo, No. 09-12-00304-CV, 2013

Tex. App. LEXIS 7212, at **5-7 (Tex. App.—Beaumont June 13, 2013, no pet.);

In re Commitment of Delacruz, No. 09-11-00554-CV, 2012 Tex. App. LEXIS 649,

at **5-7 (Tex. App.—Beaumont Jan. 26, 2012, pet. denied) (mem. op.).

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      The trial court instructed the jury during the trial regarding the jury’s use of

the admissions at issue. While McGuire argues that the trial court failed to properly

instruct the jury concerning the law of admissions, the record shows that McGuire

only objected to the State’s proffer of the requests into evidence; he did not object

that the instruction the trial court gave the jury concerning the requests was

improper. The instruction the trial court gave the jury about the requests did not

address the State’s burden of proof. Nevertheless, McGuire failed to preserve any

complaint about the content of the instruction for our review on appeal. See Tex. R.

App. P. 33.1.

      While McGuire argues that the requests were improperly used to prove

matters of law rather than facts, the requests and responses allowed into evidence

asked McGuire to admit various facts. Requests for admissions may be used to

elicit “statements of opinion or of fact or of the application of law to fact[.]” Tex.

R. Civ. P. 198.1; Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011) (explaining

that requests may be used to elicit statements of opinion or of fact or of the

application of law to fact, but should not be used to require an opposing party to

admit claims and concede defenses that a party knows are being disputed). Because

the record shows that the requests sought admissions on matters that Rule 198




                                          4
permits, McGuire’s argument that the requests were improperly admitted is

without merit.

      McGuire also argues that the trial court erred by admitting three pen packets

into evidence after the trial court admitted his admissions about his prior offenses.

The record shows that McGuire objected to admitting these exhibits on the basis

that they were more prejudicial than probative. See Tex. R. Evid. 403. He did not

object that the admission of the pen packets was not relevant in light of the

admissions the State introduced into evidence. McGuire has not advanced the same

argument regarding the admission of the pen packets in his appeal as the one he

advanced at trial. Therefore, his issue one argument concerning the admission of

the pen packets was not preserved for appeal. See Tex. R. App. P. 33.1. Having

concluded that all of McGuire’s issue one arguments are without merit, we

overrule issue one.

      In issue two, McGuire challenges the trial court’s denial of his motion to

transfer venue to Harris County or another suitable location. In his motion,

McGuire argued that transferring his case to Harris County would place the trial

within the jurisdiction of a court that had the power to compel witnesses, through

the use of subpoenas, to attend his trial. See Tex. R. Civ. P. 176.3(a) (providing

that a person may not be required to appear in a county that is more than 150 miles

                                         5
from where the person resides or is served); Tex. Civ. Prac. & Rem. Code Ann. §

22.002 (West 2008) (subjecting a person who lives within 150 miles of the county

where the suit is pending to being “subpoenaed in the suit”).

      Nevertheless, while McGuire’s discovery responses disclose over forty

persons with knowledge of relevant facts, his motion to transfer does not identify

any specific witness that he desired to subpoena. Additionally, the record does not

demonstrate that McGuire attempted to call any persons as witnesses who refused

to attend his trial, that he sought to take depositions of witnesses residing beyond

the subpoena range in an effort to obtain the testimony of such witnesses for trial,

or that he offered a bill of proof to demonstrate why the testimony of any witness

listed in his response to the State’s request for disclosure was material to the

dispute.

      On appeal, McGuire argues a transfer of venue to Harris County was

mandatory under Rule 258 of the Texas Rules of Civil Procedure because the State

failed to object to his motion for change of venue. See Tex. R. Civ. P. 258. The

record shows that McGuire’s motion was not supported by a single affidavit, much

less affidavits demonstrating the trial court had sufficient cause to justify a transfer

of venue. See Tex. R. Civ. P. 257 (providing that motion for change of venue may

be granted if supported by party’s own affidavit and the affidavits of at least three

                                           6
credible persons demonstrating that the party cannot obtain a fair and impartial

trial).

          “A trial court can deny the motion to transfer if the movant does not comply

with Rule 257.” In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App.—

Tyler 2005, orig. proceeding). Because McGuire’s motion to transfer did not

comply with Rule 257, the trial court acted properly by denying it. We overrule

issue two. Having overruled both of McGuire’s issues, we affirm the judgment

rendered by the trial court.

          AFFIRMED.




                                                ______________________________
                                                       HOLLIS HORTON
                                                             Justice


Submitted on September 19, 2013
Opinion Delivered October 17, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.




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