                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00100-CV
                             ____________________

        IN RE COMMITMENT OF GEORGE LEANDER COLEY
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 13-08-08647 CV
__________________________________________________________________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit George Leander Coley as a

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

(West 2010 & Supp. 2014). A jury found that Coley is a sexually violent predator

and the trial court rendered a final judgment and an order of civil commitment. In

two appellate issues, Coley challenges the denial of his motion for continuance and

certain comments made by the trial court to the jury. We affirm the trial court’s

judgment.




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                             Motion for Continuance

      In issue one, Coley contends that the trial court improperly denied his

motion for continuance. In an SVP proceeding, the trial court may grant a

continuance if the person is not substantially prejudiced by the continuance and on

the request of either party and a showing of good cause. Id. § 841.063(1) (West

2010). We review a trial court’s denial of a motion for continuance under an abuse

of discretion standard. In re Commitment of Hatchell, 343 S.W.3d 560, 563-64

(Tex. App.—Beaumont 2011, no pet.).

      According to Coley’s motion for continuance, he began sex offender

treatment in October 2013. On December 30th, Coley deposed the State’s expert

witness, Dr. Michael Arambula, during which Arambula testified that his opinion

that Coley is a sexually violent predator could change if Coley completed

treatment and applied the concepts learned in treatment. On January 16, 2014, five

days before trial, Coley filed his motion for continuance, in which he requested

that trial be continued for 172 days so that Coley could complete sex offender

treatment. On the day of trial, Coley presented his motion, which the trial court

denied.

      Under the SVP statute, the person committed is entitled to a biennial review.

See Tex. Health & Safety Code Ann. § 841.102 (West 2010). However, at any

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time, the case manager may authorize a petition for release or the committed

person may exercise his right to file an unauthorized petition for release. See id. §§

841.121, 841.122. Because Coley possessed alternatives for seeking release from

commitment in the event he completed sex offender treatment, applied the

principles learned in treatment, and Arambula subsequently changed his opinion,

we conclude that the trial court did not abuse its discretion by denying Coley’s

motion for continuance. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635

(Tex. 1986) (“The trial court has broad discretion to grant or deny motions for

continuance.”); see also Hatchell, 343 S.W.3d at 563-64. We overrule issue one.

                              Trial Court’s Comments

      In issue two, Coley argues that the trial court commented on the weight of

the evidence. We review a trial court’s allegedly improper comments as a question

of law. In re Commitment of Barbee, 192 S.W.3d 835, 847 (Tex. App.—Beaumont

2006, no pet.). The complaining party must show that error occurred and harm

resulted. World Car Nissan v. Abe’s Paint & Body, Inc., No. 04-12-00457-CV,

2013 Tex. App. LEXIS 9442, at *8 (Tex. App.—San Antonio July 31, 2013, pet.

denied) (mem. op.). “We examine the record as a whole to determine whether the

comment unfairly prejudiced the complaining party.” Id. We will reverse only




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when the trial court’s comments are improper and probably caused the rendition of

an improper judgment. Id. at **7-8; see also Tex. R. App. P. 44.1.

      During voir dire, the trial court stated:

      . . . In this court we’re talking about these topics here; and, obviously,
      you’re probably going to hear from expert witnesses, psychologists
      and psychiatrists, about this term, behavioral abnormality. And I tell
      you that because sometimes, many times, the issues we talk about in
      this courtroom are pedophilia, we talk about incest, we talk about
      homosexuality. These are topics that come up here in this courtroom.
      I’m just trying to put a little sugar on this for you but, unless you have
      advanced training, probably what you know about these topics are
      what you read on the Internet; and we know the Internet is never
      wrong. If you’re lucky enough to get selected as a juror in this court
      you’re probably going to get to hear people that have a lot of higher
      training in these areas, and they can sort of give you some more
      training in what these areas are about.

The trial court overruled Coley’s objection to “comments about the credibility of

the experts.” On appeal, Coley contends the trial court’s comments conveyed the

belief that the State’s expert was reliable and credible. According to Coley, the trial

court’s belief “arose from an extrajudicial source and demonstrates bias in favor of

the State.”

      Assuming, without deciding, that the trial court’s comments were improper,

we cannot say that those comments caused the rendition of an improper judgment.

The statements were made during voir dire, before evidence had even been

presented, giving the parties ample opportunity to speak to the venire panel and

                                           4
question potential jurors. The State and Coley questioned the panel members about

their beliefs regarding expert opinion. During opening arguments, the State

explained that Arambula would testify to help the jury decide whether Coley has a

behavioral abnormality. Coley’s counsel reminded that jury that they, not the

expert, are the sole decision-makers. During closing arguments, the State explained

how the evidence supported a behavioral abnormality finding. Coley’s counsel told

the jurors that they must make up their own minds regarding the evidence. The

record is silent as to whether any particular juror was improperly influenced by the

trial court’s comments.

      Additionally, in its jury charge, the trial court instructed the jury, “You are

the sole judges of the credibility of the witnesses and the weight to give their

testimony.” We assume that the jury followed the trial court’s instruction. Salinas

v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012); see also In re Commitment of Day,

342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied). Accordingly, the

record does not demonstrate that the trial court’s comments during voir dire

unfairly influenced the jury to reach a verdict it would not have otherwise reached.

See World Car Nissan, 2013 Tex. App. LEXIS 9442, at **7-8; see also Tex. R.

App. P. 44.1. We overrule issue two and affirm the trial court’s judgment.




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      AFFIRMED.

                                           __________________________
                                               STEVE McKEITHEN
                                                   Chief Justice

Submitted on October 13, 2014
Opinion Delivered October 23, 2014

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




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