Opinion filed December 13, 2018




                                        In The

        Eleventh Court of Appeals
                                    __________

                               No. 11-18-00015-CV
                                   __________

     IN RE COMMITMENT OF RANDAL EUGENE PORTER


                     On Appeal from the 29th District Court
                           Palo Pinto County, Texas
                         Trial Court Cause No. C47557


                      MEMORANDUM OPINION
      In this appeal from a civil commitment under Chapter 841 of the Texas Health
and Safety Code, the jury found beyond a reasonable doubt that Randal Eugene
Porter, Appellant, is a “sexually violent predator” as defined in the statute. See TEX.
HEALTH & SAFETY CODE ANN. §§ 841.003, .062 (West 2017). Based upon the jury’s
affirmative finding, the trial court entered a final judgment and order of commitment
requiring Appellant to be civilly committed for treatment and supervision upon his
release from a secure correctional facility. See id. § 841.081 (West 2017), § 841.082
(West Supp. 2018).      On appeal, Appellant presents three issues in which he
challenges (1) the trial court’s prohibition of a certain line of questioning during voir
dire, (2) an evidentiary ruling related to the admission of an exhibit into evidence,
and (3) the legal and factual sufficiency of the evidence to support the jury’s finding.
We reverse and remand.
                                Limitation of Voir Dire
       In his first issue, Appellant argues that the trial court erred when it prohibited
him from asking voir dire questions regarding bestiality. Appellant specifically
complains that he was not allowed to ask the potential jurors if hearing the details of
sexual acts with animals would affect their “ability to consider this case objectively
and follow the instructions of the Court in order to issue a fair and impartial
decision.”
       To preserve error related to the trial court’s denial of such a right, the party
must make a timely request that makes clear—by words or context—the grounds for
the request and obtain a ruling on that request, whether express or implicit. In re
Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (citing TEX. R. APP. P. 33.1).
Here, the topic was first addressed and ruled on as a ground in the State’s motion in
limine, which preserved nothing for appellate review. However, immediately prior
to voir dire, Appellant asked for clarification on questions for jury selection. The
trial court stated, “Okay. So you can’t get into bestiality.” After the general voir
dire questioning but before any challenges for cause were made, Appellant informed
the trial court:
             And for the record, these were the questions on bestiality that we
       wanted to address with the venire panel. And it was simply the same
       questions along the lines: Is there anyone who would be uncomfortable
       discussing or listening to sexual acts with animals?
              And if so, will hearing such details affect your ability to consider
       this case objectively and follow the instructions of the Court in order to
       issue a fair and impartial decision?



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The trial court responded, “Okay,” and “All right. Thank you.” We cannot hold
under these circumstances that Appellant failed to preserve this issue for review.
Thus, we will address the merits of Appellant’s issue.
      Parties to a jury trial have the right to question potential jurors to discover
biases and to properly use peremptory challenges. Id. at 228. We review a trial
court’s refusal “to allow lines of questioning during voir dire . . . under an abuse of
discretion standard.” Id. at 229 (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d
743, at 753–54 (Tex. 2006)). A trial court abuses its discretion “when its denial of
the right to ask a proper question prevents determination of whether grounds exist
to challenge for cause or denies intelligent use of peremptory challenges.” Id.
(quoting Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989)).
      In Commitment of Hill, which was also an appeal from a civil commitment
under Chapter 841 of the Texas Health and Safety Code, the Texas Supreme Court
addressed an issue very similar to the one posed in this case. Hill sought to ask
questions during voir dire about his homosexuality, and the trial court prohibited
him from doing so. The supreme court stated:
             Hill’s sexual history was part of the State’s proof of his alleged
      behavioral abnormality, yet the trial court refused questioning that went
      to the potential jurors’ ability to give him a fair trial. This prevented
      Hill from discovering the potential jurors’ biases so as to strike them
      for cause or intelligently use peremptory challenges. See TEX. GOV’T
      CODE § 62.105(4) (naming “bias or prejudice . . . against a party in [a]
      case” as grounds for disqualifying a juror).
Commitment of Hill, 334 S.W.3d at 229; accord In re Commitment of Kalati, 370
S.W.3d 435, 440–41 (Tex. App.—Beaumont 2012, pet. denied) (following
Commitment of Hill and reaching the same result where the attempted line of voir
dire questioning involved pedophilia).
      The State suggests that the trial court did not abuse its discretion when it
prohibited Appellant from asking questions about bestiality because “[w]hether a
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person can control his sexual urges around animals does not necessarily indicate
whether he can control his sexual urges around people. It is the sexual urges as they
relate to persons, and only as they relate to persons, that are at issue in any sexually
violent predator case.” We do not believe that we can distinguish the supreme
court’s reasoning in Commitment of Hill on this basis. Bestiality was part of
Appellant’s sexual history that was considered by the expert witnesses and addressed
during the trial. Consequently, we are constrained to follow Commitment of Hill and
hold that the trial court abused its discretion when it prohibited Appellant from
asking appropriate questions regarding bestiality. See Commitment of Hill, 334
S.W.3d at 229; see also Commitment of Kalati, 370 S.W.3d at 441. Such an error is
harmful error. Commitment of Kalati, 370 S.W.3d at 441; see Commitment of Hill,
334 S.W.3d at 230 (reversing and remanding for a new trial). We sustain Appellant’s
first issue on appeal.
                                  Remaining Issues
      Because this court’s ruling on Appellant’s first issue necessitates that we
remand the cause for a new trial, we need not reach the merits of Appellant’s second
and third issues. We note that Appellant does not ask this court to render judgment
in his favor; we also note that Appellant’s challenge to the legal sufficiency of the
evidence was preserved only by way of a motion for new trial. Rendition of
judgment in Appellant’s favor would therefore be inappropriate even if we were to
sustain his legal sufficiency challenge. See Horrocks v. Tex. Dep’t of Transp., 852
S.W.2d 498, 498–99 (Tex. 1993); In re Commitment of Short, 521 S.W.3d 908, 910
(Tex. App.—Fort Worth 2017, no pet.); see also Aero Energy, Inc. v. Circle C
Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985) (“No evidence points must be
preserved through one of the following procedural steps in the trial court: (1) a
motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict;
(3) an objection to the submission of the issue to the jury; (4) a motion to disregard
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the jury’s answer to a vital fact issue; or, (5) a motion for new trial.”).1 Because a
ruling in Appellant’s favor on either of his remaining issues would not entitle
Appellant to more favorable relief, those issues are not dispositive of this appeal and
need not be addressed in this opinion. See TEX. R. APP. P. 47.1.
                                         This Court’s Ruling
        We reverse the trial court’s judgment and order of civil commitment, and we
remand the cause to the trial court for a new trial.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


December 13, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals2;
and Wright, S.C.J.3

Willson, J., not participating.




        1
         A provision in Chapter 841 provides: “Except as otherwise provided by this subsection, a civil
commitment proceeding is subject to the rules of procedure and appeal for civil cases. To the extent of any
conflict between this chapter and the rules of procedure and appeal for civil cases, this chapter controls.”
HEALTH & SAFETY § 841.146(b) (emphasis added).
        2
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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