                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________
                               NO. 09-11-00663-CV
                              ____________________


          IN RE COMMITMENT OF MICHAEL ELBERT YOUNG

_______________________________________________________________                  _

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 11-05-05229 CV
_______________________________________________________________                  _

                                     OPINION

      The State of Texas filed a petition seeking the civil commitment of Michael

Elbert Young as a sexually violent predator. See Tex. Health & Safety Code Ann.

§§ 841.001-.151 (West 2010 & Supp. 2012) (SVP statute). A jury found that

Young is a sexually violent predator, and the trial court rendered a final judgment

and an order of civil commitment. In his appeal, Young challenges rulings by the

trial court regarding discovery, trial procedures, and expert testimony. Finding no

reversible error, we affirm the trial court’s judgment.



                                          1
                                   Background

      In 1993, Young was convicted of two sexually violent offenses, attempted

aggravated sexual assault and sexual assault of a child. Before Young completed

serving his sentence, the State filed a petition seeking Young’s civil commitment

as a sexually violent predator. The State’s experts presented to the jury their

diagnoses that Young suffered from a paraphilia, and they testified that Young

suffers from a behavioral abnormality that makes it likely he will engage in another

predatory act of sexual violence. The jury found that Young is a sexually violent

predator. Young timely perfected his appeal from the jury’s verdict.

                                Discovery Rulings

                   Young’s Requests for Admission to the State

      In issue one, Young contends the trial court committed reversible error by

granting the State’s motion for protective order, shielding the State from answering

Young’s fifty-seven requests for admissions. After being served with Young’s

requests, the State filed a motion for protective order. The State’s motion for

protective order asserts that twelve of Young’s requests were not relevant (requests

one through nine, twelve, nineteen, and twenty-nine), that twelve of the requests

sought information protected as work-product (requests nine, ten, nineteen, twenty,

and twenty-two through twenty-nine), and that thirty-six of the requests, (requests

                                         2
eleven, thirteen through eighteen, twenty-one, and thirty through fifty-seven)

would be “best answered” by the State’s experts who could be deposed. We review

the trial court’s rulings on the requests for abuse of discretion. In re Commitment of

Perez, No. 09-12-00132-CV, 2013 WL 772842, at *5 (Tex. App.—Beaumont Feb.

28, 2013, pet. denied) (mem. op.).

      Generally, requests for admission are an authorized method that parties may

use in discovery. See Tex. R. Civ. P. 192.1. Under the rules, a party may request

“that the other party admit the truth of any matter within the scope of discovery,

including statements of opinion or of fact or of the application of law to fact[.]”

Tex. R. Civ. P. 198.1. A matter admitted by a party is conclusively established as

to the party who made the admission, unless the trial court permits the party to

amend or withdraw the response. See Tex. R. Civ. P. 198.3. Admissions that are

made in the course of discovery are intended to be used by the parties to simplify

trials, but they should not be used to require an opposing party to admit claims and

concede defenses that a party knows are being disputed. Marino v. King, 355

S.W.3d 629, 632 (Tex. 2011). Through requests, a party may ask another party to

admit or deny issues of fact relevant to the pending action or to apply the law to

relevant issues of fact. Maswoswe v. Nelson, 327 S.W.3d 889, 896-97 (Tex.

App.—Beaumont 2010, no pet.).

                                          3
      First, we address the State’s argument that it should not be required to

answer requests for admissions in SVP cases. According to the State, the attorneys

who represent the State in SVP proceedings, the Special Prosecution Unit (SPU),

has no identifiable client; the State claims that requiring it to respond to Young’s

requests necessarily requires its attorneys to disclose their mental impressions,

opinions, conclusions, or legal theories. The State’s Brief states:

             The attorneys in SPU have no real, identifiable client. The civil
      division of SPU is, essentially, a law office. But we have no client.
      There is no client who directs our activities. There is no client to
      whom we answer. There is no client that sits with us at counsel table
      during trial. This places us in a [] unique situation in that there is no
      client to whom we can turn for responses to requests for admissions.
             Because there is no person, client, or party, who can respond to
      requests for admissions, the trial court did not abuse its discretion
      when it entered the protective order.

      While the SPU argues it has no real client, the petition seeking Young’s

commitment indicates that the SPU’s client is the State of Texas. In its brief, the

State asks that we grant relief to the State. Thus, it appears from the record that the

State, not the SPU, is the party to the commitment proceedings that involve Young.

      The civil division of SPU is responsible for initiating and pursuing civil

commitment proceedings under the SVP statute. See Tex. Health & Safety Code

Ann. § 841.004 (West 2010). Absent conflicts with other provisions of the SVP

statute, civil commitment proceedings are subject to the rules of procedure for civil

                                          4
cases. See Tex. Health & Safety Code Ann. § 841.146(b) (West 2010). We have

held that absent an express statutory exception, the rules of discovery apply to SVP

proceedings. See In re Commitment of Malone, 336 S.W.3d 860, 862 (Tex. App.—

Beaumont 2011, pet. denied). We find nothing in the SVP statute to support the

State’s argument that it is exempt from responding to requests for admission. See

generally Tex. Health & Safety Code Ann. §§ 841.001-.151.

       Treating the State as the SPU’s client and treating the State as a party to

these proceedings treats the State in a manner consistent with settled Texas

precedent. “As a general rule, the State litigates as any other party in Texas

courts[.] ‘When the [S]tate becomes a litigant in the courts[,] it must observe and is

bound by the same rules of procedure that bind all other litigants, except where

special provision is made to the contrary.’” Tex. Dep’t of Corr. v. Herring, 513

S.W.2d 6, 7 (Tex. 1974) (quoting Tex. Co. v. State, 281 S.W.2d 83, 90 (Tex.

1955)). We hold that the State does not enjoy any general exemption from the

requirement that it respond or object to requests for admissions under the same

rules that apply to other litigants in civil cases.

       Because the trial court did not state the basis of its ruling when it ruled on

the State’s motion for protective order, we are required to review the State’s other

objections to Young’s requests to determine if they provide a reasonable basis to

                                             5
uphold the trial court’s decision denying Young’s motion to compel. Twelve of

Young’s admissions are the subject of core work-product objections lodged by the

State (requests nine, ten, nineteen, twenty, and twenty-two through twenty-nine).

Core work product is protected from discovery by Rule 192.5 of the Texas Rules

of Civil Procedure. These twelve requests ask that the State admit certain matters

related to what the State (not its attorneys) had done, offered, or required of

Young, to admit that Young’s entire criminal record was contained in certain

records, to admit whether the State had evidence that Young had engaged in sexual

misconduct or sexual offenses while he was incarcerated, and to admit whether the

State was aware of certain information about sexually violent predators other than

Young.

      Rule 192.5 defines core work product as “the work product of an attorney or

an attorney’s representative that contains the attorney’s or the attorney’s

representative’s mental impressions, opinions, conclusions, or legal theories[.]”

Tex. R. Civ. P. 192.5(b)(1). However, Rule 192.5(c)(1) provides that information

concerning experts, trial witnesses, witness statements, and contentions, matters

that are all discoverable under rule 192.3, are not protected by the work product

privilege. See Tex. R. Civ. P. 192.3, 192.5(c)(1). Additionally, the rules of

procedure specifically allow a party to request disclosure of legal theories and

                                        6
factual bases of the opposing party’s claims. See Tex. R. Civ. P. 194.2(c). We

conclude the twelve requests at issue do not require the State’s attorneys to

disclose their mental impressions, opinions, conclusions, or legal theories about

Young’s case. We conclude the requests at issue did not seek discovery of core

work product, and that a core work product objection provides an insufficient basis

to sustain the trial court’s ruling.

       The State also argued that twelve of Young’s requests were not relevant to

the issues in dispute (requests one through nine, twelve, nineteen, and twenty-

nine). Only two of Young’s twelve requests (number twelve and nineteen) relate

specifically to Young. The others (one through nine and twenty-nine) address the

State’s experience with persons who were found to be sexually violent predators, a

class of persons that, as of the date of the trial, did not include Young.

       At the pre-trial hearing on the State’s motion, Young did not explain to the

trial court why the ten requests that sought information about the State’s

experience with sexually violent predators other than Young were relevant to the

issues in his case. Although Young argues that his requests about other sexually

violent predators were reasonably calculated to lead to the discovery of relevant

evidence, his brief does not explain how information about other sexually violent

predators is relevant to whether he suffers from a sexual abnormality that makes

                                           7
him likely to engage in a predatory act of sexual violence, the issue for the jury in

his trial. Additionally, Young has not explained why the information about other

sexually violent predators was relevant to any of the specific terms of the trial

court’s commitment order. The trial court could reasonably have denied Young’s

motion to compel a response to these ten requests for admission on the basis that

the admissions at issue were not relevant. We hold the trial court did not abuse its

discretion by allowing the State not to respond to requests one through nine and

twenty-nine.

      The remaining two requests subject to a relevance objection—requests

twelve and nineteen—ask for admissions that relate specifically to Young. Request

twelve asks that the State admit it had no evidence that the primary purpose of

Young’s qualifying sexual offenses was victimization. However, to the extent the

charge addresses victimization, the jury was asked to decide whether victimization

would motivate him to commit future predatory acts; it did not ask the jury to

decide whether victimization had motivated him in the past. Moreover, there is no

jury question regarding whether the State has or does not have any evidence, as

that issue relates to a question of law. As a result, request twelve does not concern

a matter directly relevant to the issue before the jury. Because Young failed to

explain how request twelve was relevant to the issues before the jury, we conclude

                                         8
the trial court did not abuse its discretion when it chose to allow the State not to

answer the request.

      Request nineteen asks the State to admit that Young, on release from prison,

would be required to register as a sex offender. Although neither party has

addressed the relevance of this request to the issues in Young’s case, it appears that

Young could have used an admission about registering to argue that the State had

sufficient control over registered sex offenders so that further controls would not

be necessary to prevent Young from committing future predatory acts of sexual

violence. With respect to request nineteen, we will assume without deciding that

the State should have been required to file a response. We address separately

whether Young has shown he was harmed because he did not obtain a response to

request nineteen.

      The State objected to thirty-six of Young’s requests (numbers eleven,

thirteen through eighteen, twenty-one, and thirty through fifty-seven) because they

“are all things that are best answered by the psychological and/or psychiatric

experts who have been designated by Petitioner in this case, which Respondent

will have the opportunity to do at the time of the expert’s deposition.” The State’s

motion for protective order concludes that these requests seek to discover

information that is protected by the work-product privilege.

                                          9
         With respect to these thirty-six requests, Young suggested in the trial court

that “[o]ne party cannot limit the method or methods by which the other party

chooses to conduct discovery.” However, the reasonable inquiry required of a party

in formulating responses to requests for admissions does not require that the

attorneys ask its designated experts for the information that may be needed to

answer requests for admission. See Tex. R. Civ. P. 195.1, 198.2(b). Instead,

discovery from experts is permitted “only through a request for disclosure under

Rule 194 and through depositions and reports as permitted by this rule.” Tex. R.

Civ. P. 195.1.

         Based on the arguments that Young presented to the trial court, the trial

court could reasonably conclude that Young improperly used requests eleven,

thirteen through eighteen, twenty-one, and thirty through fifty-seven in an effort to

conduct discovery against the State’s designated experts. We conclude the trial

court did not abuse its discretion by granting the State’s motion with respect to

requests eleven, thirteen through eighteen, twenty-one, and thirty through fifty-

seven.

                                    Harmless Error

         We must determine if the trial court’s failure to require the State’s response

to requests ten, nineteen, twenty, and twenty-two through twenty-eight probably

                                           10
caused the rendition of an improper judgment or probably prevented appellant

from properly presenting his case to the court of appeals. See Tex. R. App. P.

44.1(a). First, we address Young’s argument that depriving him of these answers

has made it impossible for him to assess his alleged harm.

      With respect to eight of the ten requests (requests twenty, and twenty-two

through twenty-eight), the record shows that Young received the benefits of other

forms of discovery. For example, with respect to Young’s requests addressing

information about his criminal and treatment histories (request twenty, and

requests twenty-two through twenty-eight), the record reflects that Young had

access to the Multi–Disciplinary Team referral packet, “which generally contains

the offender’s psychological evaluation, parole reviews, penitentiary packets,

educational records, sex offender treatment program records or evaluations,

medical records, and prison disciplinary records.” Perez, 2013 WL 772842, at *6.

Additionally, Young could have provided Young’s attorneys with information

about Young’s criminal and treatment histories. Finally, the record reflects that

Young took the depositions of the State’s experts, so he had the opportunity to

discover how the State’s experts had relied on Young’s criminal and treatment

histories in forming their respective opinions. Thus, the record does not show that




                                        11
Young was deprived of any significant benefit in preparing his case for trial

because the trial court did not require the State to respond to these eight requests.

      With respect to the two remaining requests, requests ten and nineteen, we

conclude that the outcome in Young’s trial would not have changed had the State

responded to these two requests. Request ten asks the State to admit that it knew

where ninety-five percent of the persons found to be sexually violent predators

were living. Request nineteen asks that the State admit that Young, on release from

custody, would be required to register as a sex offender.

      Requests ten and nineteen are unrelated to matters that go to the heart of the

issues in dispute. For example, whether the State knew where ninety-five percent

of the persons found to be sexually violent predators were living appears unrelated

to whether Young has a behavioral abnormality that makes him likely to commit a

future sexual offense. The degree to which Young might be subject to being

controlled through sexual offender registries is a matter that could have been

addressed by the witnesses who testified at Young’s trial. Because none of the

experts were asked to address the issue, it appears that Young did not think the

matter was one that went to the heart of his case.

      We conclude that the trial court’s failure to require the State to respond to

the ten requests at issue did not cause the rendition of an improper judgment or

                                          12
prevent Young from presenting his case on appeal. Id., see Tex. R. App. P. 44.1(a).

We overrule issue one.

                   Young’s Requests for Production to the State

      In issue two, Young complains that the trial court refused to compel the

State to produce documents in response to requests to produce eighteen and

nineteen, asking for “[a]ll documents concerning the procedure for selecting

which of the offenders referred to the Special Prosecution Unit will be prosecuted

for civil commitment[]” and “[a]ll documents reviewed, submitted, and/or

considered in the process of deciding that Respondent would be prosecuted for

civil commitment.” The State objected to these requests, asserting the documents

were not relevant and that the requests invaded its privilege against producing

work product. Young filed a motion to compel, arguing that these requests were

“relevant to the issue of whether the Special Prosecution Unit is applying Chapter

841 of the Texas Health & Safety Code in accord with Respondent’s rights of

equal protection and due process.”

      Young argues that in the absence of evidence supporting the State’s

objections, the trial court erred in denying his motion to compel. See Tex. R. Civ.

P. 193.4(a). But, supporting evidence is not always needed to support a trial court’s

discovery rulings. See In re Union Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999)

                                         13
(“As the rule recognizes, evidence may not always be necessary to support a claim

of protection from discovery.”). “Although the scope of discovery is broad,

requests must show a reasonable expectation of obtaining information that will aid

the dispute’s resolution.” In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.

proceeding). Consequently, “requests must be reasonably tailored to include only

matters relevant to the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.

1998) (orig. proceeding). “The trial court must make an effort to impose

reasonable discovery limits.” Id. “It is the discovery proponent’s burden to

demonstrate that the requested documents fall within the scope-of-discovery of

Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex. App.—Beaumont

2005, orig. proceeding). Trial courts have the discretion to refuse to compel

discovery if the information being requested by the interrogatory or request at issue

is so inclusive that responding would require matters to be included that are

unlikely to fall within the scope of discovery that governs the parties’ dispute. See

In re Christus Health Se. Tex., 399 S.W.3d 343, 348 (Tex. App.—Beaumont, 2013,

orig. proceeding).

      Without hearing evidence, the trial court could also determine that

responding to request eighteen would require the State to produce documents that

would not be relevant to the issues to be decided at Young’s trial. The trial court,

                                         14
without hearing evidence, could also conclude that request nineteen includes

matters that are protected as work product—the procedure used by the SPU in

selecting the persons that it would seek to civilly commit. Additionally, the trial

court could have concluded that documents pertaining to other sex offenders were

not relevant to the issues that the jury would decide in Young’s case. Because

request eighteen sought documents about the referrals of persons other than

Young, the trial court could have reasonably concluded that the requests would

require the State to produce documents that were not relevant to Young.

      Request nineteen sought documents reviewed or considered in deciding

whether Young would be prosecuted for civil commitment. Under the SVP statute,

the attorneys are involved in the decision to file the civil commitment proceeding,

and the matters they considered in doing so are subject to the work product

privilege. See Tex. R. Civ. P. 192.5(a) (defining work product); see also Tex.

Health & Safety Code Ann. § 841.041(a) (West 2010) (“If a person is referred to

the attorney representing the state under Section 841.023, the attorney may file …

a petition alleging that the person is a sexually violent predator and stating facts

sufficient to support the allegation.”). With respect to request to produce eighteen

and nineteen, we conclude the trial court did not abuse its discretion by denying

Young’s motion to compel. We overrule issue two.

                                        15
                   The State’s Requests for Admission to Young

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

compelling him to answer nine of the State’s requests for admission (requests ten

through eighteen). These nine requests asked that Young admit or deny that he was

charged, convicted, and sentenced in three separate criminal cases. Young

objected, asserting the matters were inadmissible because he had entered pleas of

nolo contendere on the cases addressed in the nine requests. See Tex. R. Evid. 410.

      A personal plea of guilty to a criminal charge is admissible in evidence in a

subsequent civil suit arising out of the same act, but a plea of nolo contendere is

not. See Tex. R. Evid. 410(2); Johnson v. Woods, 315 S.W.2d 75, 77 (Tex. Civ.

App.—Dallas 1958, writ ref’d n.r.e.); see also Tex. Code Crim. Proc. Ann. art.

27.02(5) (West 2006) (instructing that a plea of nolo contendere “may not be used

against the defendant as an admission in any civil suit based upon or growing out

of the act upon which the criminal prosecution is based”). Rule 410 states that a

plea of nolo contendere is inadmissible in a civil case, but the requests for

admission do not ask Young to admit that he pled nolo contendere; the requests for

admissions ask whether Young had been charged, convicted, and sentenced based

on the three prior crimes. See Tex. R. Evid. 410. Nonetheless, Rule 410 is not

intended to prevent the State from proceeding under a statute to impose civil

                                        16
consequences that result from criminal convictions. See, e.g., Turton v. State Bar of

Tex., 775 S.W.2d 712, 715 (Tex. App.—San Antonio 1989, writ denied)

(concluding that Rule 410 did not preclude admission of a nolo contendere plea in

an action brought under the State Bar Act to suspend an attorney for conviction of

a serious crime).

      Before a person may be civilly committed, the State must prove that the

person is a repeat sexually violent offender. See Tex. Health & Safety Code Ann. §

841.003(a)(1) (West 2010). Young’s civil commitment proceeding is based, in

part, on Young’s prior convictions for sexually violent offenses; thus, the requests

for admission asked about matters that the State was required to prove at trial. In

SVP cases, the State may prove that the person was charged, convicted and

sentenced for prior sexually violent offenses that were obtained based on pleas of

nolo contendere. See id. § 841.003(b) (West 2010). Because the nine requests at

issue are relevant to the State’s case under the civil commitment statute, the trial

court did not abuse its discretion by compelling Young’s responses. We overrule

issue three.




                                         17
                                      Trial Rulings

                                      Jury Selection

      In issue four, Young contends the trial court violated his statutory right “to

appear at trial” because Young was not personally present in the courtroom when

the trial court considered the parties’ challenges for cause. See Tex. Health &

Safety Code Ann. § 841.061(d) (West 2010) (providing that the person the subject

of the commitment proceeding “the right to appear at the trial”). The record

reflects that Young was present for the entire voir dire, but at the conclusion of the

voir dire, the trial court asked to see counsel. While in chambers, in Young’s

absence, the trial court denied counsel’s request to delay the proceedings to wait

for Young, considered the parties’ agreed strikes, and, with the agreement of the

parties, the trial court struck eleven members of the array. However, when the trial

court returned to the courtroom to question other members of the array

individually, Young was present, and he remained present when the parties

exercised their peremptory strikes.

      Young argues “the right to appear at the trial,” found in section

841.061(d)(1) of the Health and Safety Code, applies in the same manner as article

33.03 of the Texas Code of Criminal Procedure. Young correctly asserts that he

was entitled to be present during jury selection, as jury selection in SVP cases is

                                           18
governed by the Code of Criminal Procedure. Tex. Health & Safety Code Ann. §

841.146(a) (West 2010) (providing that “[t]he number and selection of jurors are

governed by Chapter 33, Code of Criminal Procedure.”). Article 33.03 of the Code

of Criminal Procedure states that “the defendant must be personally present at the

trial” unless he voluntarily absents himself after jury selection. Tex. Code Crim.

Proc. Ann. art. 33.03 (West 2006).

      When reviewing violations of article 33.03 that relate to the defendant’s

presence during jury selection, appellate courts consider whether the defendant’s

presence has a reasonably substantial relationship to his opportunity to defend.

Compare Jasper v. State, 61 S.W.3d 413, 422-24 (Tex. Crim. App. 2001)

(defendant’s absence when jurors’ excuses heard was harmless); Hodges v. State,

116 S.W.3d 289, 296-98 (Tex. App.—Corpus Christi 2003, pet. ref’d) (defendant’s

absence during peremptory strikes harmless where defendant later waived jury);

Bath v. State, 951 S.W.2d 11, 22-23 (Tex. App.—Corpus Christi 1997, pet. ref’d)

(defendant’s absence when venire member qualified and juror exemptions heard

was harmless); Weber v. State, 829 S.W.2d 394, 395-97 (Tex. App.—Beaumont

1992, no pet.) (defendant’s absence when juror excuses heard was harmless), with

Sumrell v. State, 326 S.W.3d 621, 624-27 (Tex. App.—Dallas 2009), pet. dism’d

improvidently granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) (defendant’s

                                       19
absence during individual questioning of jurors who expressed bias was harmful);

Bledsoe v. State, 936 S.W.2d 350, 361 (Tex. App.—El Paso 1996, no writ)

(defendant’s absence during individual voir dire was harmful).

      During all of the jury selection proceedings that occurred in open court,

Young was physically present. Although Young was not present when the trial

court determined who the attorneys for the parties had agreed to dismiss, he has not

argued and it has not been shown that his absence affected the makeup of the jury.

Accordingly, on the face of this record, we conclude that Young’s brief absence

during jury selection did not substantially interfere with his ability to defend

against the State’s case. Because Young has not shown that he was harmed by his

brief absence in chambers when the parties discussed their agreed strikes, we

overrule issue four.

                       Certified Questions from Deposition

      In issue five, Young contends the trial court should have required the State’s

testifying psychologist, Dr. Antoinette McGarrahan, to answer several questions

she was asked during her deposition. The transcript of Dr. McGarrahan’s

deposition reflects that the court reporter recorded a number of questions for later

ruling by the trial court. The trial court heard Young’s motion to compel Dr.

McGarrahan’s answers shortly after jury selection and before trial testimony

                                        20
began; Young’s attorney secured rulings on four of the unanswered questions

(questions one through four) during the hearing on the motion to compel.

   On appeal, Young complains that the trial court should have required Dr.

McGarrahan to answer questions three and four, and questions thirteen through

sixteen. However, Young did not secure rulings from the trial court with respect to

questions thirteen through sixteen. As a result, Young failed to preserve his

complaints regarding questions thirteen through sixteen for appellate review. See

Tex. R. App. P. 33.1 (providing that error preservation requires a party to obtain a

ruling from the trial court as a prerequisite to presenting a complaint for appellate

review).

   The trial court denied Young’s motion with respect to questions three and four.

These questions ask:

   • [Question 3] Dr. McGarrahan, would you agree that as of August 31st,
     2010, it was the position of the Council on Sex Offender Treatment that
     no one adjudicated of a sexually violent predator -- adjudicated as a
     sexually violent predator in Texas has been charged with or convicted of
     a new sex crime?

   • [Question 4] Let’s assume that the Council on Sex Offender Treatment is
     right, that as of August 31st, 2010, no person adjudged a sexually violent
     predator in the [S]tate of Texas has either been arrested for or convicted
     of a subsequent sexually violent offense. Wouldn’t including those
     statistics into the group that you characterize as being inherently low-
     risk lower the risk even further?


                                         21
      Young contends counsel for the State, during Dr. McGarrahan’s deposition,

improperly instructed Dr. McGarrahan not to answer these questions. The record

reflects that the State’s attorney did instruct her witness not to answer these

questions.

      Attorneys, with limited exceptions, are not allowed to instruct that a witness

not answer a question during a deposition. Rule 199.5(f) provides: “An attorney

may instruct a witness not to answer a question during an oral deposition only if

necessary to preserve a privilege, comply with a court order or these rules, protect

a witness from an abusive question or one for which any answer would be

misleading, or secure a ruling[.]” Tex. R. Civ. P. 199.5(f).

      During the hearing on Young’s motion to compel, the State argued any

answer to question three would be misleading “as to anything that has to do with

Mr. Young’s behavioral abnormality.” Young argued “we were attempting to

discover Dr. McGarrahan’s rate of error in her evaluations[,]” to which the trial

court noted, “You should have asked that question because you didn’t ask that

question.” Young argued the answer “goes to the credibility of the witness.” The

trial court noted Young phrased the question to ask if Dr. McGarrahan agreed that

another party took a position, which created a problem because “[i]f you want to

get into that, you’ve got to get those people and bring them in here and have them

                                          22
testify about it[.]” The trial court found that question four also requested a

misleading response.

      Questions three and four refer to the 2010 biennial report prepared by the

Council on Sex Offender Treatment. See Tex. Occ. Code Ann. § 110.160 (West

2012); Council on Sex Offender Treatment, Biennial Report Regarding the Council

on Sex Offender Treatment September 1, 2008 – August 31, 2010 (2010)

(available at http://www.dshs.state.tx.us/csot/default.shtm). Young’s attorney

showed the 2010 report to Dr. McGarrahan during her deposition, and determined

in the deposition that Dr. McGarrahan used two actuarial tests in evaluating

Young, the Static-99R and the Minnesota Sex Offenders Screening Tool Revised

(MnSOST). The 2010 report contains detailed information about the Council’s

activities, and it includes a statement about recidivism rates, but the document is a

report to the Governor, Lieutenant Governor, and Speaker of the House of

Representatives, not an actuarial instrument or other scientific peer-reviewed

document. See Tex. Occ. Code Ann. § 110.160; Council on Sex Offender

Treatment, Biennial Report Regarding the Council on Sex Offender Treatment

September     1,   2008     –    August        31,   2010   (2010)   (available    at

http://www.dshs.state.tx.us/csot/default.shtm). On appeal, Young argues that his

questions concern Dr. McGarrahan’s potential rate of error, making it a matter that

                                          23
is discoverable in a deposition. See Tex. R. Civ. P. 192.3(e)(4) (providing that a

party may discover a testifying expert’s mental impressions and opinions formed

or made in connection with the case, and any methods used to derive them).

      The record does not support Young’s claim that questions three and four are

relevant to determining Dr. McGarrahan’s error rate in applying the Static-99R and

the MnSOST. 1 A report addressing the general success rate of sex offender

treatment does not speak to Dr. McGarrahan’s predictive accuracy for a person

who has not yet been committed to a program of sex offender treatment. By

seeking to use the Council’s report to measure the accuracy of Dr. McGarrahan’s

application of the Static-99R and the MnSOST, Young’s questions present a

fallacy of distribution that suggests Young’s recidivism risk can be extrapolated

from statistics using recidivism statistics derived by actuarial instruments that have

been used to measure the recidivism risks of a treated population. 2 In the context of

      1
       We do not suggest that the Council’s report would not be relevant under
any circumstances. The civil commitment proceeding concerns not only the
determination that a person is a sexually violent predator but also the terms of
commitment ordered by the trial court if the person is civilly committed. See Tex.
Health & Safety Code Ann. § 841.003(a), § 841.082(a)(8) (West Supp. 2012).
Young neither asked Dr. McGarrahan if she was familiar with the report nor did he
ask her to explain it.
      2
       For example, if no schoolboy who receives the chicken pox vaccine
subsequently develops chicken pox, it does not follow that a schoolboy should not
be vaccinated because he is not at risk for chicken pox. In Young’s case, there was
                                         24
the arguments presented to the trial court, we conclude that the trial court’s

decision about the questions as being misleading is supported by the record and

was reasonable. We overrule issue five.

                                   Trial Rulings

                                Opening Statement

      In issue six, Young contends the trial court abused its discretion by

permitting the prosecutor to summarize the evidence during his opening statement.

The rule of civil procedure controlling the order of proceedings in a civil trial

provides that the party with the burden of proof on the whole case “shall state to

the jury briefly the nature of his claim or defense and what said party expects to

prove and the relief sought.” Tex. R. Civ. P. 265(a). The State’s opening statement,

which consumes thirteen pages of the record, lacks the brevity mentioned in Rule

265(a). The trial court admonished counsel to be brief several times before

granting Young’s request for a running objection. Counsel continued to describe

another sexual offense and prison infractions that he expected to present to the jury




no evidence to show the rate of recidivism for persons who never received
treatment, so it is an unknown. Nor is there any evidence indicating that the rate of
recidivism in a population that had received treatment could be used to extrapolate
a rate of recidivism for a population that had not been treated.
                                          25
during trial, described the testimony he expected the State’s experts would present,

and explained the State’s burden of proof.

      Generally, by detailing the evidence during opening statement, counsel may

place matters before the jury before the trial court can determine its admissibility;

as a result, an opening statement that discusses evidence that may never be

admitted carries the potential of confusing the jury when the evidence the trial

court admits differs from the evidence counsel mentioned in opening statement.

See Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170-71 (Tex. Civ. App.—Austin

1975, writ ref’d n.r.e.). On appeal, the State does not defend the degree of detail

that is found in its opening statement; instead the State argues the error in allowing

its attorney to provide the jury with details about what the evidence would show

was harmless. See Tex. R. App. P. 44.1(a)(1). Young argues that he was harmed

because introducing details concerning sexual assaults described in the opening

statement prejudiced the jury.

      In this case, counsel’s opening does not vary in any significant manner from

the evidence the trial court admitted during Young’s trial. Counsel’s description of

Young’s prior sexual offenses and mental impairment, mentioned by counsel

during opening statement, are consistent with the evidence the trial court admitted

during trial on these matters. When evidence consistent with the details described

                                         26
in the opening statement is developed during the trial, the trial court’s error in

overruling an objection complaining about counsel’s mention of the evidence in

opening statement is harmless. See Guerrero v. Smith, 864 S.W.2d 797, 800 (Tex.

App.—Houston [14th Dist.] 1993, no pet.). Because the evidence admitted during

trial does not vary significantly from the matters that State’s counsel discussed in

opening statement, we conclude that any error in the trial court’s allowing State’s

counsel to tell the jury in opening statement how the State intended to prove its

case was harmless. See Tex. R. App. P. 44.1. We overrule issue six.

                               Displaying Exhibits

      In issue seven, Young complains that the trial court erred when, just before

the attorneys made their opening statements, it overruled his objection to the

State’s display of four exhibits during opening argument. Young did not identify

the exhibits by number when discussing his objection with the trial court; Young

suggests the documents consisted of Young’s judgments and the curricula vitae of

the State’s expert witnesses. Additionally, the record does not reveal whether

State’s counsel actually displayed these four exhibits to the jury during opening

argument.




                                        27
      Young argues the trial court’s ruling allowed the State to show the jury that

his convictions were obtained on pleas of nolo contendere. 3 It is not clear from the

record whether the jury saw any of the four exhibits at issue during the State’s

opening argument. We hold that Young failed to preserve error regarding issue

seven. See Tex. R. App. P. 33.1. Issue seven is overruled.

                                 Expert Testimony

      In issue eight, Young contends the trial court impermissibly restricted his

right to cross-examine the State’s testifying psychiatrist, Dr. Michael Arambula,

about his rate of error. The trial court did not allow Young’s counsel to ask Dr.

Arambula the following questions:

   • Your procedure has not been tested for accuracy?

   • Are you aware of what your rate of error is regarding your opinions in
     behavioral abnormality evaluations?

   • Are you concerned at all with your rate of error being so high at one
     hundred percent? Why or why not?

   • And no person that you have found to have a behavioral abnormality has
     reoffended sexually upon release?


      3
       When cross-examining the witnesses who testified, Young’s counsel
introduced the jury to the fact that Young’s convictions were obtained through
pleas of nolo contendere as well as the legal distinction between pleas of guilty and
nolo contendere. The State did not introduce these matters during its direct
examinations of the witnesses.
                                         28
      The jury’s determination that Young is a sexually violent predator relies

upon the opinion testimony of the State’s experts; therefore, questions about the

general accuracy of Dr. Arambula’s opinions concern a subject matter that relates

directly to his trial testimony; it is a relevant inquiry. See Tex. R. Evid. 401

(relevant evidence tends to make the existence of a fact of consequence more or

less probable than it would be without the evidence). A witness may be cross-

examined on any matter relevant to any issue in the case. See Tex. R. Evid. 611(b).

      Error may not be based on a ruling that excludes evidence unless “the

substance of the evidence was made known to the court by offer, or was apparent

from the context within which questions were asked.” Tex. R. Evid. 103(a)(2);

Tex. R. App. P. 33.1(a)(1). “To preserve error concerning the exclusion of

evidence, the complaining party must actually offer the evidence and secure an

adverse ruling from the court.” Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El

Paso 2002, no pet.). Young’s counsel failed to make an offer of proof, and he has

not identified the answers he expected to receive from Dr. Arambula to the

proffered questions. 4 Without an offer of proof, we cannot determine whether the

      4
       We have repeatedly rejected challenges concerning the reliability of Dr.
Arambula’s opinion testimony in civil commitment trials. See, e.g. In re
Commitment of Hill, No. 09-11-00593-CV, 2013 WL 772834, at **4-7 (Tex.
App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.); In re Commitment of
Kalati, 370 S.W.3d 435, 436-40 (Tex. App.—Beaumont 2012, pet. denied); In re
                                        29
exclusion of the evidence was harmful. See Perez, 74 S.W.3d at 66-67. Because

Young has not shown that the exclusion of the evidence was harmful, we overrule

issue eight.

      In issue nine, Young contends the trial court abused its discretion in

allowing Dr. McGarrahan to describe the details of Young’s sexual offenses. The

trial court admonished the jury: “Hearsay normally is not admissible; however,

certain hearsay information contained in the records reviewed by the experts is

allowed into evidence through expert testimony. Such evidence is admitted only

for the purpose of showing the basis of the expert’s opinion.”

      Rule 705(a) of the Texas Rules of Evidence allows an expert to disclose the

facts or data on which the expert bases an opinion. See Tex. R. Evid. 705(a). If the

trial court admits underlying facts or data that would otherwise be inadmissible,

such as hearsay, the court, on request, is required to give the jury a limiting

instruction. See Tex. R. Evid. 705(d). When the trial court gives the jury a limiting

instruction, we presume the jury followed it. See In re Commitment of Day, 342

S.W.3d 193, 198-99 (Tex. App.—Beaumont 2011, pet. denied). In light of the

limiting instruction, the admission of the testimony explaining the data on which


Commitment of Cox, No. 09-11-00100-CV, 2012 WL 759049, at **4-7 (Tex.
App.—Beaumont Mar. 8, 2012, pet. denied) (mem. op.); In re Commitment of Day,
342 S.W.3d 193, 204-06 (Tex. App.—Beaumont 2011, pet. denied).
                                         30
Dr. McGarrahan based her opinion was not an abuse of discretion. We overrule

issue nine.

      Having overruled all of Young’s issues, we affirm the trial court’s judgment.

      AFFIRMED.




                                                  _________________________
                                                       HOLLIS HORTON
                                                            Justice


Submitted on April 4, 2013
Opinion Delivered September 5, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




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