 
 




                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00038-CV
                           ____________________


          IN RE COMMITMENT OF RANDOLPH LEE PUCKETT

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-05-04916 CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Randolph Lee Puckett challenges his civil commitment as a sexually violent

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

Supp. 2013) (the SVP statute). Puckett raises four issues in his appeal, challenging

the denial of Puckett’s motion for a protective order against requests for

admissions and the admission of his responses during the trial, the granting of a

directed verdict that he is a repeat sexually violent offender, the admission of

details about his sexual offenses, and the admission of testimony suggesting he



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may have offended against other children. We conclude that Puckett’s issues do

not present reversible error, and we affirm the trial court’s judgment.

                    Compelled Responses to Requests for Admission

      In issue one, Puckett argues the trial court abused its discretion when it

denied Puckett’s request for protection from answering requests for admissions

that required Puckett to admit or deny that in 1979 he pled guilty to and was

convicted of indecency with a child by contact, that he was given a five-year

sentence, and that he was incarcerated for the offense. The State read Puckett’s

responses into evidence at trial. The trial court subsequently granted the State’s

motion for a directed verdict on the issue of whether Puckett is a repeat sexually

violent offender.

      Puckett argues the State improperly used requests for admissions to compel

him to admit elemental allegations denied through his general denial pursuant to

Rule 92 of the Texas Rules of Civil Procedure. “The primary purpose of requests

for admission is to simplify trials by eliminating matters about which there is no

real controversy; to obviate in advance of trial, proof of obviously undisputed

facts.” In re Commitment of Jackson, No. 09-12-00291-CV, 2013 WL 5874446, at

*1 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.). The requests at

issue in this appeal concerned ascertainable facts and arguably eliminated the need

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for the State to prove the penitentiary packet contained Puckett’s records, but the

trial court did not order Puckett to admit a disputed fact or admit that he had no

ground of defense. See id.; see also Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.

1996). Because requests for admission were not used improperly in this case, the

trial court did not abuse its discretion when it denied Puckett’s request for a

protective order and allowed the State to read the admissions to the jury during the

trial. We overrule issue one.

                                Granting Directed Verdict

      In his second issue, Puckett contends that the trial court erred in granting the

State’s motion for a directed verdict that Puckett is a repeat violent sexual offender

because the trial court’s ruling violates the SVP statute’s requirement that “[t]he

judge or jury shall determine whether, beyond a reasonable doubt, the person is a

sexually violent predator[]” and that “[a] jury determination that the person is a

sexually violent predator must be by unanimous verdict.” Tex. Health & Safety

Code Ann. § 841.062. Puckett argues section 841.062 expresses legislative intent

to employ the process for criminal prosecutions in civil commitment proceedings.

      Directed verdicts for the State are not unheard-of in criminal law. Where a

defendant enters a guilty plea before the jury, it is proper for the trial court to

instruct the jury to return a verdict of guilty. Holland v. State, 761 S.W.2d 307, 313

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(Tex. Crim. App. 1988). Where the defendant pleads guilty and the trial court

accepts the plea, but the jury has not or cannot be waived, the proper procedure is

for the trial court to direct a verdict of guilt and proceed with punishment. Morin v.

State, 682 S.W.2d 265, 269 (Tex. Crim. App. 1983); see also In re State ex rel.

Tharp, 393 S.W.3d 751, 758-59 (Tex. Crim. App. 2012) (where the State refuses to

join the defendant’s waiver of jury trial, and the defendant pleads guilty, the trial

court must submit all relevant issues, including punishment, to the jury). The

defendant is not deprived of a jury trial because the jury receives evidence on the

disputed issues. See Morin, 682 S.W.2d at 269. Similarly, when a defendant pleads

true to enhancement allegations, the trial court instructs the jury to render a verdict

of true and assess punishment in the enhanced punishment range. Urbano v. State,

808 S.W.2d 519, 523 (Tex. App.—Houston [14th Dist.] 1991, no pet.). This is an

analogous situation, in that Puckett admitted he is a repeat violent sexual offender.

The trial court directed the jury to find that Puckett is a repeat violent sexual

offender and submitted the disputed issue of behavioral abnormality to the jury.

      Moreover, civil commitment proceedings under the SVP statute are

generally subject to the rules of procedure for civil cases. In re Commitment of

Scott, No. 09-11-00555-CV, 2012 WL 5289333, at *2 (Tex. App.—Beaumont Oct.

25, 2012, no pet.) (mem. op.). Section 841.062 requires a unanimous verdict but

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does not expressly prohibit a directed verdict on issues that have been established

as a matter of law. See Tex. Health & Safety Code Ann. § 841.062. In Scott, we

decided that courts conducting trials under the SVP statute may follow the directed

verdict procedure for civil cases, and consequently the trial court does not err in

directing the jury to find that a person is a repeat sexually violent offender where

the issue is conclusively established. Scott, 2012 WL 5289333, at *2; see also Tex.

R. Civ. P. 268. We decline to reconsider our holding in Scott. We overrule issue

two.

             Allowing Expert Testimony Regarding Details of Crimes

       In issue three, Puckett contends the trial court abused its discretion in

admitting into evidence before the jury the graphic details from the April 1976

indecency-with-a-child, the June 1979 kidnapping and, the June 1993 aggravated-

sexual-assault-of-a-child criminal offenses Puckett committed against children. A

psychiatrist, Dr. Lisa K. Clayton, provided expert testimony expressing her opinion

that Puckett is a sexually violent predator. Puckett objected that Dr. Clayton’s

testimony was hearsay and that the underlying facts or data should be excluded as

prejudicial and confusing. See Tex. R. Evid. 705(d). The trial court overruled the

objections and instructed the jury that hearsay information contained in records




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reviewed by experts is admitted only for showing the basis for the expert’s

opinion. See id.

      Dr. Clayton stated the sex and age of the children and described what the

records showed Puckett did to each child. Puckett argues the primary issue for the

jury to resolve is whether Dr. Clayton was being truthful when she testified Puckett

told her that after he committed the second offense he realized he was sexually

aroused by little girls’ vaginas and that because of this admission, Puckett met the

criteria for pedophilia, or whether Puckett was being truthful when he denied

telling Dr. Clayton that he had sexual fantasies about children. Dr. Clayton

explained that the facts of Puckett’s criminal offenses were significant to her

findings concerning sexual deviance and pedophilia because they illustrate he

cannot control his sexually violent urges to the point that he assaults young girls.

Therefore, the details evidence had probative value beyond determining whether

Dr. Clayton was being truthful about Puckett’s statements to her during the

interview.

      Puckett argues the State did not have much need for details evidence

because the jury heard other, less inflammatory evidence that the jury could have

used to determine whether to accept Dr. Clayton’s opinion that Puckett has a

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

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violence. However, Puckett does not identify the “less inflammatory” evidence

regarding Puckett’s lack of control over his sexually violent impulses in which he

refers. The description of Puckett’s sexual acts perpetrated on prepubescent

children is inflammatory because it indicates the presence of deviant behavior and

his inability to control his behavior, which persisted notwithstanding his

incarceration. The evidence, therefore, is inflammatory for the very reason it is

probative as a factual basis for the expert’s opinion that Puckett has a behavioral

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

The trial court could reasonably conclude that the probative value of the evidence

outweighed any danger the evidence would be used for a purpose other than as an

explanation or support for the expert’s opinion. Id.; see also In re Commitment of

Day, 342 S.W.3d 193, 198-99 (Tex. App.—Beaumont 2011, pet. denied). We

overrule issue three.

                               Allowing Speculation

      In issue four, Puckett contends the trial court “erred in admitting speculative

testimony suggesting that [Puckett] may have committed numerous other unknown

sex offenses against other children which the State never proved were even

committed.”




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      Puckett presented expert testimony from a psychologist, Dr. Marisa Mauro,

that in her opinion, Puckett does not have a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. During her direct

examination, Dr. Mauro mentioned that at times Puckett denied having committed

indecency with a child and kidnapping and at other times, he admitted having

committed one or both offenses. He did admit to committing the aggravated sexual

assault that resulted in his most recent incarceration. Dr. Mauro did not diagnose

Puckett with pedophilia. She testified that she disagreed with the diagnosis of the

State’s expert because that diagnosis was based on the two convictions that

occurred more than six months apart, which alone was insufficient evidence in

light of Puckett’s large number of self-reported consensual encounters with adult

women. Dr. Mauro testified there was little evidence to show that Puckett has

recurring and intense desires for children. Dr. Mauro suggested that Puckett’s

behavior could be explained by opportunity, high sex drive, alcohol use, or

curiosity. According to Dr. Mauro, Puckett received a “score of 2” on the Static-

99R, placing him at low to moderate risk to reoffend, which Dr. Mauro stated

represented a five percent recidivism rate over five years. Dr. Mauro also

considered a study by Boccaccini that found recidivism rates for sexual offending

were lower in Texas.

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      On cross-examination, Dr. Mauro agreed that she could not say for sure

whether Puckett will sexually reoffend in the future. Over Puckett’s objection to

speculation, counsel for the State asked, “And you agree that sex offenses are often

under-reported or not reported at all?” Dr. Mauro replied, “I think all offenses are –

some can go unreported, some might be reported that didn’t really happen and the

same can be true for a sex offense.” Counsel asked, “So do you agree that sex

offenses are often under-reported?” Dr. Mauro disagreed with the qualifier “often”

but agreed it is possible. Dr. Mauro agreed that, in evaluating an individual for a

behavioral   abnormality,    important   considerations    include   certain   victim

characteristics such as age, the number of sex offense convictions, the offender’s

entire criminal history, the offender’s substance abuse history, and the presence of

some personality disorders. Counsel for the State asked Dr. Mauro about specific

factors she considered in evaluating Puckett but did not ask Dr. Mauro if she

considered whether Puckett may have committed uncharged offenses.

      “A witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the

matter.” Tex R. Evid. 602. The trial court could determine that, as a psychologist

testifying about the process of evaluating sex offenders for behavioral abnormality

and explaining how certain statistical studies correlated to risk of recidivism, Dr.

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Mauro possessed sufficient knowledge to answer the question. See Tex. R. Evid.

702, 703. Puckett’s argument that by asking the questions the State suggested

Puckett committed additional offenses against other children is not supported by

the record, which shows counsel asked a general question that was not applied to

Puckett as an individual. We overrule issue four and affirm the trial court’s

judgment.

      AFFIRMED.



                                            ________________________________
                                                     CHARLES KREGER
                                                          Justice


Submitted on December 3, 2013
Opinion Delivered June 12, 2014

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




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