                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-15-00173-CV
                            ____________________


         IN RE COMMITMENT OF MICHAEL ANTHONY PETTIS

_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-10-11086-CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Michael Anthony Pettis appeals from a judgment on a jury verdict that

resulted in his civil commitment as a sexually violent predator. See Tex. Health &

Safety Code Ann. § 841.081(a) (West Supp. 2015). In two issues, Pettis argues (1)

that the trial court erred in overruling his objection to testimony by the State’s

expert witness that Pettis is deceptive and (2) that admitting a communication

between Pettis and his wife into evidence amounts to a fundamental error that may

be raised for the first time on appeal. We overrule both of Pettis’s issues and affirm

the trial court’s judgment and order of civil commitment.

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                           Expert Opinion Testimony

      In issue one, Pettis contends the trial court erred by overruling his Rule 702

objection to expert opinion testimony that he complained concerned his

truthfulness.

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if the expert’s scientific, technical, or other
      specialized knowledge will help the trier of fact to understand the
      evidence or to determine a fact in issue.

Tex. R. Evid. 702.

      In Pettis’s trial, the State presented a psychiatrist, Dr. Lisa Clayton, for her

expert opinion regarding whether Pettis suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. Dr. Clayton

testified that she conducted a forensic psychiatric evaluation of Pettis. As part of

her evaluation, she performed a mental status examination and diagnosed mental

disorders under the American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders, Fifth Edition, or DSM-V. Dr. Clayton testified that

one of the most important factors she considered in forming her opinion that Pettis

has a behavioral abnormality was her diagnosis of pedophilic disorder and

antisocial personality disorder under the criteria set out in the DSM-V. She

explained that antisocial personality disorder is a medical term that describes

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someone who lacks a conscience. She discussed the criteria for antisocial

personality disorder, applied them to Pettis, and stated that the diagnosis of

antisocial personality disorder supported her finding that Pettis has a behavioral

abnormality.

      When Dr. Clayton was asked what evidence of Pettis’s personality traits

meet the criteria for antisocial personality disorder, Dr. Clayton replied, “that he is

deceitful[.]” Pettis objected to an improper comment on the truth or veracity of

another witness. The trial court overruled the objection. Dr. Clayton stated that the

characteristics of antisocial personality disorder include a failure to conform to

social norms with respect to lawful behaviors, as in repeatedly performing acts that

are grounds for arrest, as well as personality traits such as deceitfulness,

impulsivity, reckless disregard for safety of self and others, consistent

irresponsibility as indicated by repeated failure to sustain consistent work behavior

or honor financial obligations, and lack of remorse as indicated by being

indifferent or rationalizing, having hurt, mistreated or stolen from another.

      Citing a criminal case, Yount v. State, Pettis argues the trial court erred in

overruling his objection because Dr. Clayton offered an expert’s direct opinion as

to the truthfulness of a witness. See generally 872 S.W.2d 706, 711-12 (Tex. Crim.

App. 1993). In Yount, a pediatrician testified that she had examined hundreds of

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children who claimed to have been fondled or penetrated and she had seen very

few cases where the child was not telling the truth. Id. at 707-08. The Court held

that expert testimony which assists the jury in determining an ultimate fact issue is

admissible, but “Rule 702 does not permit an expert to give an opinion that the

complainant or class of persons to which the complainant belongs is truthful.” Id.

at 708, 712. But, where the expert’s testimony concerns a mental condition, the

understanding of which is beyond the comprehension and understanding of the

average person, it does not invade the province of the jury for the expert to use the

facts and the defendant’s relation to them in pursuing and determining the medical

diagnosis and explaining that diagnosis to the jury. Reid v. State, 964 S.W.2d 723,

732 (Tex. App.—Amarillo 1998, pet. ref’d).

      This appeal is similar to In re Commitment of Eeds, 254 S.W.3d 555, 558

(Tex. App.—Beaumont 2008, no pet.). In Eeds, after the psychiatrist stated that she

thought Eeds was not being honest about his sexual offenses, she was then asked

what she felt Eeds was dishonest about and what she based her opinion on. Id. We

held that the psychiatrist’s response “concerned a matter within her expertise rather

than within the province of the jury.” Id. at 559. In that case, the testimony was

admissible because the psychiatrist’s expressed opinion about Eeds’s truthfulness

demonstrated how her observations of Eeds’s responses during their interview

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affected her medical opinion that he had a behavioral abnormality. Id. Likewise,

Dr. Clayton’s observation of Pettis’s personality characteristics relates to her

diagnosis of a mental disorder that is key to forming the basis for her expert

opinion that Pettis has a behavioral abnormality that makes him likely to commit a

predatory act of sexual violence. The trial court properly admitted the evidence as

specialized knowledge of the expert to assist the jury’s understanding of the

evidence and its determination of a fact in issue. See Tex. R. Evid. 702. Issue one

is overruled.

                                Spousal Privilege

      In issue two, Pettis complains that the spousal confidential communication

privilege was violated when the jury heard testimony about a letter he mailed to his

wife from prison in 1999. See generally Tex. R. Evid. 504(a). Pettis had no

objection to the exhibit and the letter was admitted into evidence. The State

questioned Pettis concerning the contents of the letter without an objection. Pettis

complains that the letter was protected by spousal privilege and he argues that its

admission into evidence was fundamental error that he may raise for the first time

on appeal.

      Generally, a timely and specific trial court level objection is a prerequisite

for presenting an issue on appeal. See Tex. R. Evid. 103(a); Tex. R. App. P.

                                         5
33.1(a). The spousal communication privilege has long been acknowledged to be

subject to waiver by failure to object, even in a criminal case decided at a time

when the separate spousal testimonial privilege, which disqualified a criminal

defendant’s spouse as a witness, could not be waived. See Briddle v. State, 742

S.W.2d 379, 390 (Tex. Crim. App. 1987), overruled on other grounds by Valencia

v. State, 946 S.W.2d 81, 82 (Tex. Crim. App. 1997).

      Citing Trammel v. U.S., Pettis suggests the public’s interest in maintaining

the privacy of spousal communications justifies reversing his civil commitment

notwithstanding his failure to object to having the letter used against him during

the trial. See generally 445 U.S. 40, 48 (1980). In Trammel, the Court modified the

common law spousal testimonial privilege to vest the privilege solely in the

witness-spouse, so that the witness spouse could not be compelled to testify but

could no longer be foreclosed from testifying. Id. at 53. We agree there is a public

interest in marital harmony that confidential marital communications protect. See,

e.g., Wolfle v. U.S., 291 U.S. 7, 14 (1934) (“The basis of the immunity given to

communications between husband and wife is the protection of marital

confidences, regarded as so essential to the preservation of the marriage

relationship as to outweigh the disadvantages to the administration of justice which

the privilege entails.”). That interest is adequately protected by Texas Rule of

                                         6
Evidence 504(a). Pettis cites to no authority that holds that the Rule 504(a) spousal

communication privilege is self-executing and non-waivable. We conclude that

Pettis failed to preserve his complaint concerning the admission of the letter to his

wife because he did not object when it was offered as an exhibit in the trial. See

Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a). We overrule issue two, and we

affirm the trial court’s judgment and order of civil commitment.

      AFFIRMED.



                                              ________________________________
                                                      CHARLES KREGER
                                                           Justice


Submitted on December 21, 2015
Opinion Delivered June 16, 2016

Before Kreger, Horton, and Johnson, JJ.




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