Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 21, 2013
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-06-06638 CV
Before McKeithen, C.J., Kreger and Horton, JJ.
HOLLIS HORTON Justice
Tommy Quay Eustace appeals from a judgment in a civil proceeding resulting in his commitment as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2013). In three issues, Eustace contends that (1) the State's petition for commitment is barred by limitations; (2) during voir dire, his attorney was entitled to ask the venire a question that he characterizes as proper; and (3) he was entitled to a mistrial when the trial court made a statement during trial that he characterizes as one that impugned his counsel's credibility. Because the trial court did not commit reversible error, we affirm the trial court's judgment.
Eustace contends the suit is barred by limitations because the State filed its petition more than ninety days after the multidisciplinary team referred the matter to the Special Prosecution Unit. In response, the State argues that Eustace failed to preserve his issue on limitations for appellate review.
The State filed its petition on June 19, 2012. Eustace's original answer, his live pleading at the time of his trial, does not assert that the State's petition was barred by limitations. The trial court's docket order required the parties to file dispositive motions or pleas, including summary judgment motions, and have them heard by oral hearing or submission by December 26, 2012. On January 3, 2013, Eustace filed a motion for summary judgment, and his motion asserts that the State's petition is barred by limitations. According to Eustace's motion for summary judgment, the civil commitment proceeding is barred by section 841.041(b)(1) of the Texas Health and Safety Code because the civil commitment proceeding was filed ninety-one days after the multidisciplinary team referred his case to the Special Prosecution Unit. See Tex. Health & Safety Code Ann. 841.041(b)(1).
Before the trial began, Eustace did not obtain a ruling on his motion for summary judgment. Additionally, Eustace omitted the multidisciplinary team's letter of referral from his exhibit list, and he did not mention his motion for summary judgment or his proposed limitations defense when the trial court conducted the pre-trial hearing in his case. Eustace also did not include a question relevant to the issue of limitations in his proposed charge.
The record also does not suggest that Eustace's theory of limitations was an issue the parties tried by consent. During the redirect examination of his testifying psychologist, Dr. Roger Saunders, Eustace asked, "Now, Dr. Saunders, you're aware 841.041(b)(1) sets out some timelines as far as when the petition for one of these can be filed, correct?" Dr. Saunders replied, "Yes." When counsel followed up by asking, "And you're aware that that petition has to be filed within 90 days when--[, ]" the State objected that the question was not relevant. The trial court, mentioning that a limitations defense was not included in the proposed jury charge, sustained the objection.
After both sides rested, Eustace made an informal bill of exceptions. During Eustace's bill, Dr. Saunders stated that section 841.041(b)(1) of the Texas Health and Safety Code requires the State to file the petition ninety days from the date the matter is referred to it by the multidisciplinary team. Dr. Saunders agreed that the multidisciplinary team's referral letter is dated March 20, 2012, and that based on the date of the letter, it appeared the State's petition was untimely.
During the hearing on Eustace's bill, counsel for the State objected that Eustace had not given it a copy of his motion for summary judgment and suggested that section 841.041(b)(1) did not operate as a statute of limitations. Counsel for the State also noted that SVP commitment cases are referred to the Special Prosecution Unit by the Texas Department of Criminal Justice, not the multidisciplinary team.
A trial by consent may occur when the record reflects the trial court admitted evidence without objections having been made to it on issues that were not pleaded. "When both parties present evidence on an issue and the issue is developed during trial without objection, any defects in the pleadings are cured at trial, and the defects are waived." Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009). In this case, the record reflects that the issue of limitations was not tried by consent; instead, the State objected at the earliest opportunity when Eustace attempted to introduce evidence that he contends was relevant to his theory on limitations. Consequently, the evidence arguably relevant to Eustace's theory of limitations was not presented to the jury, and no questions relevant to limitations were included in the charge the trial court submitted to the jury.
Because Eustace failed to plead limitations and his defense was not tried by consent, we conclude that he failed to preserve issue one for appellate review. See Tex. R. App. P. 33.1(a). We express no opinion regarding Eustace's theory that the Legislature intended section 841.041(b)(1) of the Texas Health ...