       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-18-00331-CV



                             In re Commitment of Rolando Garcia


            FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-GN-17-002713, THE HONORABLE DAVID CRAIN, JUDGE PRESIDING


                            MEMORANDUM OPINION


               This is an appeal from final judgment following a jury trial on the State’s petition

to classify Rolando Garcia as a sexually violent predator subject to involuntary civil commitment.

See Tex. Health & Safety Code § 841.003. The jury returned a verdict, by a 10-2 vote, that Garcia

is not a sexually violent predator and the district court entered final judgment reflecting that

verdict. In two issues on appeal, the State argues: (1) that the district court abused its discretion

by failing to admit certain evidence, and (2) that the district court erred by entering judgment on a

non-unanimous jury finding. We will affirm.


                                         BACKGROUND

               Garcia has committed sexual offenses against multiple adolescent and pre-

pubescent minors, including his own daughter.           Garcia points to abuse of alcohol and

experimentation with illegal substances as the primary cause of this conduct. After a jury

convicted Garcia of his most recent offense, Garcia spent years in the custody of the Texas

Department of Criminal Justice (TDCJ). Once he was eligible for parole, he began participating
in a required sex offender treatment program that included various forms of therapy supervised by

licensed professionals.

               Following his confinement, the State petitioned to have Garcia classified as a

sexually violent predator subject to involuntary civil commitment and confinement pursuant to

Chapter 841 of the Health and Safety Code. See Tex. Health & Safety Code §§ 841.001–.153. In

response, Garcia argued that he has not had any sexual contact with minors since the mid-1990s,

although he conceded that he was in State custody and did not have access to minors during most

of that time. He also argued that he experienced a spiritual awakening while confined and no

longer desires to engage in substance abuse and is no longer attracted to minors.

               During the proceedings, the State and Garcia disagreed as to whether certain

evidence should be admitted for the jury’s consideration. Garcia had written a series of personal

statements during therapy sessions at TDCJ. Garcia’s counsel obtained copies of these statements

during discovery and listed them on its production logs but refused to produce them to the State,

citing the privilege against self incrimination afforded by the Fifth Amendment. The State then

filed a motion to compel.

               The parties argued the motion to the district court during trial and outside the

presence of the jury. After the district court concluded the parties were not prepared to present the

governing law, the district court afforded the parties an additional day to research the issue. The

court entertained further argument the next day but did not review the statements in camera before

ultimately denying the motion to compel.

               The State finished trying its case to the jury, and the district court charged the jury:


       Do you find beyond a reasonable doubt that Rolando Garcia is a Sexually Violent
       Predator?

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        1. A “no” answer means that at least 10 jurors agree that the answer to the question
           is “no.” If at least 10 jurors agree that the answer to the question is “no,” those
           jurors must sign the verdict.

        2. A “yes” answer must be unanimous. This means all 12 jurors must agree the
           answer to the question is “yes.” Only the presiding juror signs the verdict.


The jury answered: “No.” The ten jurors agreeing to answer the question in the negative signed

the verdict.

               The State filed a motion for new trial, arguing that “the ‘NO’ verdict was not

unanimous, as statutorily required.” In the alternative, the State argued, “The court denying the

Petitioner’s right to this evidence [i.e., the personal statements] caused extreme prejudice and harm

to the Petitioner’s case as the withheld evidence consisted of the Respondent’s Sex Offender

Treatment writings which were recently created and would have provided crucial evidence to the

jury of the Respondent’s current state of mind . . . .” The court denied the motion; the State timely

appealed to this Court.


                                           DISCUSSION

               The State seeks reversal and remand for new trial on two grounds. First, it contends

the Health and Safety Code requires a unanimous jury vote for a court to find that an individual is

not a sexually violent predator. Second, the State argues that the denial of the motion to compel

production of the personal statements “probably caused an improper judgment.”


Error in Jury Charge

               The State contends the district court erred by instructing the jury that ten votes

would be sufficient to find beyond a reasonable doubt that Garcia is not a sexually violent predator


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and erred again by entering judgment on the jury’s verdict. When the State filed this appeal, the

question of whether a unanimous jury verdict is necessary to find that an individual is not a

sexually violent predator was a question of first impression for this Court. Since then, this Court

has resolved that question. In In re Commitment of Gipson, No. 03-18-00332-CV, slip op. at 13

(Tex. App.—Austin July 26, 2019, no pet. h.), this Court explained: “[B]y expressly stating that

the Texas Rules of Civil Procedure govern when there is no conflict and by addressing only

affirmative jury verdicts, Chapter 841 . . . expressly provides for non-unanimous jury verdicts” as

sufficient to support a negative finding. See id. We therefore reject the State’s argument and

overrule the issue for the reasons set forth in that opinion.


Abuse of Discretion in Denial of Motion to Compel

               The State contends the district court erred by denying its motion to compel

production of the personal statements Garcia wrote while in State-mandated mental-health

treatment. Appellate courts review the denial of a motion to compel for an abuse of discretion.

See In re Commitment of Young, 410 S.W.3d 542, 551 (Tex. App.—Beaumont 2013, no pet.). A

trial court abuses its discretion when it acts without regard for governing law.           See In re

Commitment of Mares, 521 S.W.3d 64, 69 (Tex. App.—San Antonio 2017, pet. denied). This

Court will only reverse final judgment if the alleged abuse probably caused the rendition of

improper judgment or prevents the appellant from presenting its case on appeal. See Tex. R. App.

P. 44.1.

               The State’s primary argument before the district court was that Rule 199 of the

Texas Rules of Civil Procedure requires a party objecting to discovery to provide an affidavit to

the party seeking discovery at least seven days before trial and that Garcia failed to do so. See Tex.


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R. Civ. P. 199.6. But that Rule provides, “The party seeking to avoid discovery must present any

evidence necessary to support the objection or privilege either by testimony at the hearing or by

affidavits served on opposing parties at least seven days before the hearing.” See id. (emphasis

added). Here, the Court held a hearing in accordance with that Rule and continued the hearing to

give the parties additional time to research the issue. Counsel argued that the personal statements

included references to: (1) offenses for which Garcia had already been convicted; (2) offenses for

which Garcia had not been tried; or (3) Garcia’s current state of mind. With respect to the first

and third arguments, the jury considered evidence on both issues, including victim testimony and

testimony from Garcia himself. The State has not shown how any additional evidence on these

issues would probably have led to a different judgment. See Tex. R. App. P. 44.1; Gipson,

No. 03-18-00332-CV, slip op. at 18 (holding that, even assuming any error, excluded evidence

was cumulative of evidence already before the jury and appellant therefore could not meet its

burden to show that exclusion had probably affected judgment). With respect to the second

argument, Garcia’s invocation of the Fifth Amendment would bar admission of the evidence,

rendering any abuse of discretion harmless. See Tex. R. App. P. 44.1; In re Commitment of

Mullens, 92 S.W.3d 881, 888 (Tex. App.—Beaumont 2002, pet. denied). We therefore overrule

the issue.


                                        CONCLUSION

        Having overruled the State’s arguments on appeal, we affirm the district court’s

final judgment.




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                                   _________________________________________
                                   Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: July 26, 2019




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