                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00087-CV
                             _________________

         IN RE COMMITMENT OF DARREN DWAYNE GROOM

________________________________________________________________________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 11-07-08059-CV
________________________________________________________________________
                          MEMORANDUM OPINION

      The State filed a petition seeking the involuntary civil commitment of

Darren Dwayne Groom as a sexually violent predator. See Tex. Health & Safety

Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (the SVP Statute). A jury

found Groom suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. See id. § 841.003(a)(2) (West 2010).

The trial court signed an order of commitment, and Groom filed this appeal from

the final judgment. Groom raises three issues on appeal. We conclude that

Groom’s issues are without merit and affirm the trial court’s judgment.


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                                   The SVP Statute

      In his first issue, Groom argues the Texas Supreme Court’s opinion in In re

Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012) construes the SVP

statute in a manner that eliminates proof of certain requisite elements for civil

commitment. Groom contends the Supreme Court’s interpretation of the statute

renders it facially unconstitutional and violates the Fourteenth Amendment. As

this Court has already stated, “[w]e do not read the Bohannan opinion as

eliminating a statutory requirement, or as altering the proof required under the

statute to find that a person is a sexually violent predator.” In re Commitment of

Anderson, 392 S.W.3d 878, 886 (Tex. App.—Beaumont 2013, pet. denied). The

Supreme Court did not change the statute or render it unconstitutional. Id. at 885.

We overrule Groom’s first issue.

         Limitation of Appellant’s Testimony and Cross-Examination

      In his second issue, Groom contends the trial court erred in excluding his

testimony concerning his 1992 aggravated sexual assault conviction. The State

argues that the trial court properly excluded this testimony as an improper

collateral attack on a judgment.

      A trial court’s decision to admit or exclude the testimony of a witness is

subject to an abuse of discretion standard of review. Owens-Corning Fiberglas

                                         2
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). “A collateral attack is an attempt

to avoid the binding force of a judgment in a proceeding not instituted for the

purpose of correcting, modifying, or vacating the judgment, but in order to obtain

some specific relief which the judgment currently stands as a bar against.”

Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). We have consistently held

that a respondent “cannot collaterally attack [a] criminal conviction in [a]

commitment proceeding in the district court of Montgomery County.” In re

Commitment of Eeds, 254 S.W.3d 555, 558 (Tex. App.—Beaumont 2008, no pet.);

In re Commitment of Briggs, 350 S.W.3d 362, 367-69 (Tex. App.—Beaumont

2011, pet. denied).

      Groom does not dispute his 1992 conviction for aggravated sexual assault.

The indictment in the 1992 case charged that Groom “intentionally and knowingly

cause[d] penetration of the female sexual organ of another person . . . without the

consent of the [other person] . . . and . . . compelled [her] to submit and participate

by the use of physical force and violence, . . . and there intentionally and

knowingly use[d] and exhibit[ed] . . . a handgun in the course of the same criminal

episode[.]” During the direct examination of Groom, the special prosecutor

questioned Groom in detail about his past offenses. Concerning the 1992

conviction, Groom admitted that he approached the complainant while she walked

                                          3
down a street, that he forced her to get on his bike, that he drove her to a nearby

school, where he forced her to remove her clothes and lay down on the ground. He

admitted to pulling out a gun, but denied holding it to her head. He admitted to

having vaginal intercourse, but denied sodomizing her. On cross-examination,

Groom’s counsel sought to question him further about the 1992 conviction. The

State’s attorney objected and stated that she believed Groom’s counsel was going

to attempt to establish that Groom’s 1992 victim was a prostitute. The State’s

attorney argued that this line of questioning was an impermissible collateral attack

on the 1992 judgment. The trial court excluded the testimony.

      Groom made an offer of proof wherein he testified that the complainant in

the 1992 conviction was a prostitute with whom he had consensual sex. He

testified that the complainant became angry and called the police when he did not

pay her the money she believed due for her services. He testified that he used the

gun after they had sex when she requested payment and he did not have the money

to pay her. Groom pled guilty to the 1992 offense. Groom’s proffered testimony

relates directly to his guilt. Groom’s guilt had already been determined in the prior

criminal proceedings. See Briggs, 350 S.W.3d at 369. Based on this record, we

conclude the trial court did not abuse its discretion in excluding Groom’s



                                         4
testimony as a collateral attack of his 1992 conviction. See Eeds, 254 S.W.3d at

558; Briggs, 350 S.W.3d at 367-69.

      We overrule Groom’s second issue.

                               Misstatement of Law

      In his third issue, Groom contends that the trial judge misstated the law

during voir dire. During his remarks to the venire, the trial judge stated:

            You're asked a "yes" or "no" question. And it's basically "yes"
      Mr. Groom has a behavioral abnormality or "no" he doesn't have [] a
      behavioral abnormality. That's all that you're asked as a juror.

             Does everybody understand that?

            This is a civil procedure. It is not a criminal procedure and
      you're asked, you know -- you get to determine what happens next.

             Does everybody understand that?

             The Legislature in their infinite wisdom passed a law that says
      the jury says "yes" or "no" and they leave it up to the judge of the
      435th District Court to decide what happens next.

             Okay. Anybody going to have a problem with that?

            Is anyone going to say "I can't serve as a juror in this court
      because I don't know what happens [] next”?

Groom contends that these statements were inaccurate because the trial court has

no discretion but to civilly commit a respondent when the jury has made the

necessary findings under the SVP statute. Groom did not object on these grounds

                                           5
at trial. Groom also failed to raise this issue in his motion for new trial.1 We

conclude that by failing to lodge a timely objection, Groom has not preserved this

issue for our review. See Tex. R. App. P. 33.1(a).

      Having overruled Groom’s three issues, we affirm the trial court’s judgment.

      AFFIRMED.

                                                     ___________________________
                                                          CHARLES KREGER
                                                                Justice

Submitted on March 19, 2013
Opinion Delivered June 13, 2013

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




      1
        In a footnote in his appellate brief, Groom implies that it was not necessary
for him to preserve this issue for review. In support of this argument, he cites
Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S. Ct. 2633, 86 L. Ed. 2d 231
(1985), wherein the Supreme Court vacated a capital sentence because the
prosecutor’s statement to the jury led the jury to believe the ultimate responsibility
for determining the appropriateness of the defendant’s death sentence rested with
an appellate court that would later review the case. We find Groom has
inadequately briefed this argument and that he presents nothing for review. See
Tex. R. App. P. 38.2.
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