Opinion issued March 10, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00921-CV
                            ———————————
          IN RE COMMITMENT OF DENNIS RAY STUTEVILLE



                    On Appeal from the 435th District Court
                          Montgomery County, Texas
                     Trial Court Case No. 12-12-13060-CV


                         CONCURRING OPINION

      I join the majority opinion, but write separately to emphasize that the trial

court erred in (1) directing a verdict in favor of the State on the issue of whether

appellant, Dennis Ray Stuteville, is a “repeat sexually violent offender” 1 and (2)

making improper comments to the venire panel during voir dire. Moreover, but for

1
      See TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1) (Vernon Supp. 2014).
the fact that we are bound by the erroneous precedent of the Beaumont Court of

Appeals in deciding the issue of the trial court’s error in directing a verdict that

appellant is in fact a “repeat sexually violent offender,” appellant would be entitled

to a new trial.

                               Right to Trial by Jury

       In his sixth issue, appellant argues that the trial court erred in granting the

State a directed verdict on the issue of whether he is a repeat sexually violent

offender because he was entitled to a jury trial upon his timely demand, the State

had the burden to prove that he is a sexually violent predator “beyond a reasonable

doubt,” and a jury’s finding that a person is a sexually violent predator must be

unanimous. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.061(b), 841.062(a),

(b) (Vernon 2010).

       Appellant correctly notes that the Sexually Violent Predator (“SVP”) Act

expressly provides that either the State or a person accused of being a sexually

violent predator is “entitled to a jury trial on demand.” Id. § 841.061(b). The SVP

Act also specifically states that the pertinent fact-finder “shall determine whether,

beyond a reasonable doubt, the person is a sexually violent predator.”             Id.

§ 841.062(a) (emphasis added). And it further provides that a “jury determination

that the person is a sexually violent predator must be by unanimous verdict.” Id.

§ 841.062(b).



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      Regardless, the Beaumont Court of Appeals has, as noted in our majority

opinion, held that the same trial court did not err in directing a verdict in another

SVP Act civil-commitment case. See In re Commitment of Lemmons, No. 09–13–

00346–CV, 2014 WL 1400671, at *3 (Tex. App.—Beaumont Apr. 10, 2014, no

pet.) (mem. op.).    The court did not “perceive” a “conflict between [section

841.062(a) of] the SVP statute and the Rules of Civil Procedure that precludes the

granting of a directed verdict in a jury trial when no evidence of probative value

raises an issue of material fact on the question presented.” Id. However, this

reasoning ignores the well-established meaning of the plain language of the SVP

Act, which controls over our rules of civil procedure. See TEX. HEALTH & SAFETY

CODE ANN. § 841.146 (b) (Vernon 2010).

      The SVP Act provides, in no uncertain terms, that a person accused of being

a sexually violent predator has a statutory right to a jury trial. Appellant was

“entitled to a jury trial” upon his timely “demand,” and he had the right to have the

jury determine, “beyond a reasonable doubt” that he is a sexually violent predator.

Id. §§ 841.061(b), 841.062(a) (emphasis added). And such a determination “must

be by unanimous verdict.” Id. § 841.062(b).

      Although the SVP Act concerns “civil” commitments, the Texas Legislature,

in crafting the statute, invoked well-established and understood constitutional and

criminal-law principles.   Given the grave consequences at stake in SVP Act



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civil-commitment proceedings, it is readily apparent that the legislature chose its

words carefully, and no court is free to ignore the plain meaning of these words.

Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (“We must

enforce the statute ‘as written’ and ‘refrain from rewriting text that lawmakers

chose.’”). By directing the jury to find in favor of the State, the trial court usurped

the fact-finding authority that the legislature has clearly assigned solely to the jury

in SVP Act civil-commitment proceedings. It, thus, violated appellant’s statutory

right to a trial by jury.

       As noted by Justice Scalia, the right to a jury trial “embodies ‘a profound

judgment about the way in which law should be enforced and justice

administered.’” Carella v. California, 491 U.S. 263, 268, 109 S. Ct. 2419, 2422

(1989) (Scalia, J., concurring) (quoting Duncan v. Louisiana, 391 U.S. 145, 155,

88 S. Ct. 1444, 1450 (1968)). He explained:

       It is a structural guarantee that “reflect[s] a fundamental decision
       about the exercise of official power—a reluctance to entrust plenary
       powers over the life and liberty of the citizen to one judge or to a
       group of judges.” A defendant may assuredly insist upon observance
       of this guarantee even when the evidence against him is so
       overwhelming as to establish guilt beyond a reasonable doubt. That
       is why the Court has found it constitutionally impermissible for a
       judge to direct a verdict for the State.

Id. at 268, 109 S. Ct. at 2422 (quoting Duncan, 391 U.S. at 155, 88 S. Ct. at 1450)

(emphasis added) (citation omitted). And because “with a directed verdict, ‘the




                                          4
error . . . is that the wrong entity judged’” the facts, the error cannot be harmless.

Id. (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986)).

       Respectfully, the Beaumont Court of Appeals, in concluding otherwise

seriously erred in Lemmons. However, as we note in our majority opinion, because

this case was transferred to us for decision, we are bound by the holding in

Lemmons, no matter how wrong it may be. See TEX. R. APP. P. 41.3. Because the

error of the Beaumont Court of Appeals is of such importance to Texas

jurisprudence that it requires correction, it should be reviewed by our high court.

See TEX. GOV’T CODE ANN. § 22.001(a)(6) (Vernon 2004).

                                  Improper Comments

       In his seventh issue, appellant argues that certain remarks made by the trial

judge to the venire panel constituted improper comments on the weight of the

evidence because they directed the jury’s attention to the then-upcoming testimony

of the State’s expert and served to “bolster” and “vouch[] for its credibility and

reliability.”

       Quoting this Court, the Texas Supreme Court has made it quite clear that our

“‘statutes, court-made rules, and judicial decisions emphatically and repeatedly

prohibit Texas judges from commenting on the weight of the evidence.’” In re

M.S., 115 S.W.3d 534, 538 (Tex. 2003) (quoting In re T.T. & K.T., 39 S.W.3d 355,

359 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). It explained that comments



                                          5
on the weight of the evidence “take many forms,” and it has “specifically

prohibit[ed] judicial comments that ‘indicate the opinion of the trial judge as to the

verity or accuracy of the facts in inquiry.’” Id. (quoting McDonald Transit, Inc. v

Moore, 565 S.W.2d 43, 45 (Tex. 1978)).          Moreover, a trial judge makes an

impermissible comment on the weight of the evidence when he assumes the truth

of a material controverted fact or exaggerates, minimizes, or withdraws some

pertinent evidence from a jury’s consideration. Redwine v. AAA Life Ins. Co., 852

S.W.2d 10, 14 (Tex. App.—Dallas 1993, no writ). He also makes an improper

comment on the weight of the evidence by suggesting to the jury his opinion about

the evidence. Id. And reversal is required if an improper comment on the weight

of the evidence is one that was calculated to cause and probably did cause the

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).

      Here, after explaining to the venire panel that it would be deciding a civil

commitment, the trial judge informed it that he was the “only Judge in the state of

Texas” that presides over this “very serious” type of case. He then stated:

      . . . the State [is] saying that a Respondent is a sexually violent
      predator and the Respondent is saying: No, I’m not. That’s essentially
      what’s in my file. But oftentimes, having tried this case many, many
      times, we talk about issues of pedophilia, we talk about issues of
      homosexuality, we talk about issues of incest. Okay? And I want to
      make sure that—and I’ll tell you, especially the issue of pedophilia—
      just trying to put a little sugar here on this case for you—if you’re
      fortunate enough to make the jury, you know, everything that a person
      knows about sexual offenses, unless you have some training in this
      area, is something you were told by somebody or something you

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      probably read in a magazine or on the Internet. And we all know the
      Internet is never wrong. Right? If you’re lucky enough to get to serve
      on this jury you can expect to hear from at least one doctor explaining
      to you about these issues and explaining to you what these issues
      mean. I’m not sure if any of these issues are coming up in this trial.
      But if you’re lucky enough to make it on the jury it’s an educational
      experience for you. You don’t get any college credit for it, but you do
      become a little smarter, hopefully, through this whole process.

(Emphasis added.)

      By telling the members of the venire panel that if they were lucky enough to

serve on the jury, they could expect “to hear from at least one doctor” explaining

the issues to it and obtain an “educational experience,” the trial judge stated his

positive opinion about the weight and value of the State’s expert testimony. And

the testimony of the State’s expert was critical to proving its case. In effect, the

trial judge put his thumb on the scale of justice. And his comment was improper.

See In re M.S., 115 S.W.3d at 538. However, because appellant did not object to

the improper comment and has not demonstrated that the comment was incurable, I

agree with the majority that his seventh issue should be overruled. See Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

      Unfortunately, it must be pointed out that this is not the first time that the

trial judge has made such an improper comment on the weight of the evidence in

an SVP Act civil commitment case. See In re Commitment of Mailhot, No. 09-13-

00270-CV, 2015 WL 182699, at *1–2 (Tex. App.—Beaumont Jan. 15, 2015, no

pet.) (mem. op.). In Mailhot, the trial judge made an almost identical comment to


                                         7
the venire panel on the weight of the expert testimony of the State as “a very

educational opportunity.” Id. at *1. Regardless, appellant, here, did not object to

the improper comment and has not demonstrated that the comment was not

curable. See Dow Chem. Co., 46 S.W.3d at 241.




                                            Terry Jennings
                                            Justice


Panel consists of Justices Jennings, Massengale, and Lloyd.




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