 
 

                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00552-CV
                            ____________________



         IN RE COMMITMENT OF RICHARD ALLEN WOMACK


_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-04-03775 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Richard Allen Womack challenges his civil commitment as a sexually

violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010

& Supp. 2014) (the SVP statute). In three issues, Womack contends that during

jury selection the trial court made incurable comments to the venire, that during the

trial the court erred in admitting unfairly prejudicial testimony regarding a criminal

charge that did not result in a conviction, and that the evidence is factually

insufficient to support the verdict. We conclude Womack’s issues are without

merit, and we affirm the trial court’s judgment.

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                               Comments to Venire

      Before jury selection commenced, the State informed the trial court that Dr.

Sheri Gaines, a psychiatrist, would testify for the State. Womack informed the trial

court that his witnesses included Jane Green, a treatment provider. Addressing the

venire, the trial court provided a lengthy explanation of the sexually violent

predator commitment statute and the commitment process. In opening comments to

the venire, the trial court explained that the SVP statute defined some terms, which

the judge would instruct the jury on, and left other terms undefined, regarding

which the jury would use the commonly used definition of the term. The trial court

explained, as follows:

             [THE COURT:] So a behavioral abnormality means a
      congenital or an acquired condition that, by affecting a person’s
      emotional or volitional capacity, predisposes the person to commit a
      sexually violent offense to the extent that the person becomes a
      menace to the health and safety of another person. And that’s a lot of
      lingo that the Legislature gave us, but that’s what the term behavioral
      abnormality means.

            And you could expect from what the statute says that you’d
      have a psychologist or a psychiatrist come in here and tell you
      whether or not Mr. Womack suffers from that. Everybody understand
      that?

            VENIRE PANEL: Yes.

The trial court’s explanation of the proceedings continued with a description of the

questions to be considered by the jury, including the following:


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            THE COURT: You can’t say that Mr. Womack is a sexually
      violent predator just because he’s a repeat sexually violent offender.
      Everybody got that?

            VENIRE PANEL: Yes.

            THE COURT: You cannot say that Mr. Womack is a sexually
      violent predator just because he suffers from a behavioral
      abnormality, not that we know what the heck that means because we
      haven’t heard from a psychiatrist or psychologist yet. Also, we don’t
      know that he has the underlying convictions because we haven’t heard
      any what?

            VENIRE PANEL: Evidence.

             THE COURT: So I’m going to instruct you that before you can
      find that he’s a sexually violent predator you’re going to have to find
      both one and two here. Everybody got that?

            VENIRE PANEL: Yes.

             THE COURT: Can’t find just one and say he is. Can’t find just
      two and say he is. You have to find both. That’s the Judge’s
      instructions.

The trial court asked each member of the venire whether he or she could follow

those instructions. The judge reminded them that “jurors judge the credibility of

witnesses. That’s what jurors do.”

      Womack complains the trial court committed incurable error by stating that

“you could expect from what the statute says that you’d have a psychologist or a

psychiatrist come in here and tell you whether or not Mr. Womack suffers from [a

behavioral abnormality]” and “we [don’t] know what the heck [behavioral


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abnormality] means because we haven’t heard from a psychiatrist or psychologist

yet.” Womack did not make a contemporaneous objection to either comment.

Generally, a timely request, objection, or motion is a prerequisite to a complaint on

appeal.   See Tex. R. App. P. 33.1(a). “[O]bjection to a trial court’s alleged

improper conduct or comment must be made when it occurs if a party is to

preserve error for appellate review, unless the conduct or comment cannot be

rendered harmless by proper instruction.” Dow Chem. Co. v. Francis, 46 S.W.3d

237, 241 (Tex. 2001). In his brief for the appeal, Womack contends no objection

was required because the judge’s comments were so improper that a proper

instruction could not have rendered the comment harmless. According to Womack,

because the trial court knew the only psychiatrist or psychologist who would be

testifying would be the State’s witness, by making these comments the judge

vouched for Dr. Gaines’s expertise and the accuracy of her testimony, informed the

jury that Dr. Gaines would supply the answer to the jury’s question, and essentially

told the jury that it should find Womack to be a sexually violent predator.

      We disagree with Womack’s characterization of the judge’s comments as “a

blatant expression of the trial court’s belief that the State’s expert would accurately

inform the jury both what a ‘behavioral abnormality’ is and whether Mr. Womack

suffered from one.” Viewing the judge’s comments to the venire as a whole, the

point the judge was making was that the jurors could not conclude that Womack

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was a sexually violent predator merely by determining that he had prior sexual

offense convictions or by determining only that he had a behavioral abnormality.

The judge explained that the jury that heard the case must “require the State to

prove both, that [Womack] has the repeat offenses and that he has a behavioral

abnormality[,]” and that the decision would be based upon evidence that the venire

had not yet heard. The trial court also explained that to serve on the jury an

individual must be able to listen to a person’s testimony before judging that

person’s credibility. After carefully examining the judge’s allegedly improper

comments in the context of the entire record, we conclude there is no evidence of

incurable judicial bias for which we could excuse Womack’s failure to seek a

corrective instruction at the time the comments were made. See Francis, 46

S.W.3d at 241. We overrule issue one.

                     Evidence of Dismissed Criminal Charge

      In issue two, Womack complains the trial court abused its discretion by

allowing evidence of a criminal offense that did not result in a conviction to be

admitted for the limited purpose of explaining the basis for Dr. Gaines’s opinion

that Womack has a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. In the State’s case in chief, Womack admitted to

having committed four sexual offenses, each of which concerned a woman he

befriended before the assault, and two of which involved a victim of high-school

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age. Womack also admitted to using an alias in the past. Over Womack’s objection

that the evidence was unfairly prejudicial, the trial court allowed the State to ask

Womack if he recalled being arrested for a sexual assault that was later dismissed.

Womack responded that he did recall being arrested. The charge concerned an

alleged 1983 sexual assault and the prosecution was dismissed under the Speedy

Trial Act.1 Later, over Womack’s objection that the probative value of the

dismissed sexual assault charge was substantially outweighed by its undue

prejudicial effect, Dr. Gaines testified that she considered this uncharged offense in

her evaluation. Dr. Gaines explained that she looks for a repetitive pattern of

behavior. This uncharged offense was similar to Womack’s other offenses in that

he befriended a young female and after obtaining her trust went to a secluded area

and sexually assaulted or tried to sexually assault her. Womack was using an alias,

which informed the doctor’s diagnosis of antisocial personality disorder. Dr.

Gaines explained that she looks at every piece of information that is supplied to her

about an offender; although a conviction carries more weight in her analysis, every

piece of information is important.

              “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

                                                            
              1
       See generally Meshell v. State, 739 S.W.2d 246, 257-58 (Tex. Crim. App.
1987) (holding Speedy Trial Act to be an unconstitutional violation of separation
of powers).
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Commitment of Turner, No. 09-13-00402-CV, 2014 WL 4460415, at *1 (Tex.

App.—Beaumont Sept. 11, 2014, no pet.) (mem. op.). The underlying facts and

data for an expert’s opinion may be disclosed, unless the trial court determines that

“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(a), (d). “If otherwise inadmissible facts

or data are disclosed before the jury, a limiting instruction by the court shall be

given upon request.” Tex. R. Evid. 705(d).

      In other sexually violent predator commitment cases, this Court has

considered challenges to evidence of uncharged offenses, and in each case we have

held that the trial court acted within its discretion when it admitted evidence of

uncharged conduct that the expert considered in forming an opinion concerning

whether a person has a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. See Turner, 2014 WL 4460415, at **1-2; In re

Commitment of Alvarado, No. 09-13-00217-CV, 2014 WL 1285136, at *11 (Tex.

App.—Beaumont Mar. 27, 2014, pet. denied) (mem. op.); In re Commitment of

King, No. 09-13-00255-CV, 2014 WL 346109, at **2-3 (Tex. App.—Beaumont

Jan. 23, 2014, no pet.) (mem. op.); In re Commitment of Tesson, 413 S.W.3d 514,

519-21 (Tex. App.—Beaumont 2013, pet. denied); In re Commitment of Day, 342

S.W.3d 193, 197-99 (Tex. App.—Beaumont 2011, pet. denied).

                                          7
 
 
 

      Womack argues the evidence at issue in his case has little probative value

because it concerns a criminal charge that was ultimately dismissed and Womack

did not admit to having committed the offense. Because the State has not

demonstrated Womack’s guilt for the offense, he argues, the sexual nature of the

offense greatly outweighs the slight probative value of the evidence pursuant to

Rule 403 of the Texas Rules of Evidence. See generally Tex. R. Evid. 403.

Although the dismissed charge concerned a sexual offense, the only details

admitted into evidence were that the offense was a sexual assault or an attempted

sexual assault, the victim was a young woman Womack had previously befriended,

Womack used an alias, and the indictment was dismissed under the Speedy Trial

Act. In considering whether to admit the evidence, the trial court could consider

that the facts the jury heard were probative of the basis for Dr. Gaines’s opinion

and conclude that Womack’s behavior in that case did not result in a conviction

and did not make the evidence so weak that Dr. Gaines could not reasonably have

considered it in forming her opinion. See Tex. R. Evid. 705(c). The trial court

could have reasonably concluded that this evidence would be helpful to the jury to

understand how Dr. Gaines diagnosed Womack with antisocial personality

disorder and formed her opinion that currently Womack has a behavioral

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

See Tex. R. Evid. 705(a).

                                        8
 
 
 

      Citing Kia Motors Corp. v. Ruiz, in his reply brief, Womack argues that the

limiting instruction could not make otherwise inadmissible evidence admissible.

See generally Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 879 (Tex. 2014). The

issue before the Texas Supreme Court in Ruiz was one of waiver; that is, whether

the appellant waived its complaint regarding inadmissible evidence in a document

because part of the document contained admissible evidence and the appellant

failed to request a limiting instruction. Id. The Court in Ruiz did not consider the

effectiveness of a limiting instruction regarding evidence that is admissible for one

purpose but inadmissible for another. See id.; see also Tex. R. Evid. 105(a).

Because it was not error for the trial court to rule that the danger of unfair

prejudice did not substantially outweigh the probative value of the evidence, it was

not error for the trial court to admit the evidence and instruct the jury regarding the

limited purpose for which it was offered. See Tex. R. Evid. 403, 705(d). We

presume the jury followed trial court’s limiting instruction. See Day, 342 S.W.3d at

199. Womack requested the limiting instruction and did not request a different or

additional instruction when the trial court gave the instruction to the jury. See King,

2014 WL 346109, at *2. We overrule issue two.

                                 Factual Sufficiency

      In issue three, Womack argues the evidence is factually insufficient to

support the jury’s verdict. In a civil case where the burden of proof is beyond a

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reasonable doubt, and where the verdict is supported by legally sufficient

evidence,2 “if in the view of the appellate court after weighing the evidence, the

risk of an injustice remains too great to allow the verdict to stand, the appellate

court may grant the defendant a new trial.” Day, 342 S.W.3d at 213.

              Womack contends the jury was not rationally justified in finding beyond a

reasonable doubt that he is a sexually violent predator because the State failed to

present any evidence indicating that he has serious difficulty controlling his

behavior. In his brief for the appeal, Womack argues that we must order a new trial

because Dr. Gaines failed to address volitional impairment. In his reply brief,

Womack argues that Dr. Gaines considered twenty-year-old information and did

not offer an opinion on the level of his ability to control is behavior.

              Contrary to the argument in Womack’s brief, Dr. Gaines did address

Womack’s ability to control his behavior. Dr. Gaines described how Womack’s

repetitive behavior of grooming and exploiting women prior to his incarceration

continued during his incarceration, and explained that Womack’s manipulative

behavior is a symptom of his antisocial personality disorder that he continues to

demonstrate in his present behavior. After carefully reviewing the entire record, we

conclude that the record contains factually sufficient evidence for the jury to find


                                                            
              2
        We presume the evidence is legally sufficient because Womack does not
challenge the legal sufficiency of the evidence in this appeal.
                                                               10
 
 
 

beyond a reasonable doubt that Womack is a sexually violent predator. See id. We

overrule issue three and affirm the trial court’s judgment.

      AFFIRMED.


                                              ________________________________
                                                       CHARLES KREGER
                                                            Justice

Submitted on October 15, 2014
Opinion Delivered February 5, 2015

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




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