Court of Appeals of Texas, Ninth District, Beaumont
Submitted on June 28, 2016
Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 15-04-03834-CV
McKeithen, C.J., Kreger and Johnson, JJ.
CHARLES KREGER Justice
David Miller 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. 2016). In two issues brought on
appeal, Miller argues that the trial court erred by
overruling Miller's hearsay objections and by excluding
cross-examination of the State's expert regarding
material the expert relied upon in forming her opinion. We
overrule Miller's issues and affirm the trial court's
judgment and order of civil commitment.
issue one, Miller contends that the trial court erred by
overruling Miller's objections to questions and comments
by counsel for the State which Miller argues contains hearsay
regarding unadjudicated offenses. The State's expert
testified that she relied upon certain records of
Miller's when forming her opinion in this case,
including, among others: records that showed Miller was
convicted in 1992 for two counts of aggravated sexual
assault-one committed in 1979 and another committed in 1991;
records that showed that Miller was out on bond when he
re-offended; and records that showed that after his release
from prison, Miller was convicted of attempted indecency with
a child for an offense committed in 2013. Miller was released
from prison in 2015. In his appeal, Miller complains that the
trial court overruled a series of hearsay objections to
arguments and evidence that he committed unadjudicated
offenses. Subjects that Miller claims concern inflammatory
statements that were either unsupported or false include
whether Miller used a deadly weapon while assaulting the
victim of his 1979 aggravated sexual assault, whether Miller
abused this victim over a period of years, whether Miller
engaged in "peeping" into a neighbor's yard
after his most recent release from prison, and whether he
sexually abused a niece and a nephew.
complains that in opening arguments, counsel for the State
informed the jury that the State's expert, a
psychiatrist, Dr. Sheri Gaines, relied on facts and details
of criminal offenses Miller had committed, including holding
a gun to one six-year-old victim's head. When Miller
objected that the statement was hearsay and assumed facts not
in evidence, the trial court noted that argument of counsel
is not evidence. This ruling was correct. See Tex.
Dep't of Pub. Safety v. Mendoza, 952 S.W.2d 560, 564
(Tex. App.-San Antonio 1997, no pet.). Of course, "[t]o
the extent practicable, the court must conduct a jury trial
so that inadmissible evidence is not suggested to the jury by
any means." Tex. R. Evid. 103(d). Nevertheless, the
argument was not "offer[ed] in evidence" as
required by the hearsay rule. See Tex. R. Evid.
801(d)(2),  and because it occurred during opening
statements, the trial court had no duty to determine its
admissibility at that stage of the trial.
contends the State's questions to Miller during the
evidentiary portion of the trial, asking if he held a gun to
a six year old victim's head, sought to elicit
inadmissible hearsay. Hearsay, though, is not a statement
that the declarant makes while testifying during the current
trial, but an out-of-court statement. Tex. R. Evid. 801(d).
Miller was testifying in court and the question did not seek
to elicit testimony about an out-of-court statement made by
the declarant or the defendant. See Tex. R. Evid.
801(d), (e). In his reply brief, Miller argues that asking a
person if he did an act is hearsay. The cases he cites,
however, concern questions that ask the witness to
acknowledge an out-of-court statement had been made by a
third party concerning a matter on which the witness lacked
first-hand knowledge. See Crawford v. State, 603
S.W.2d 874, 875 (Tex. Crim. App. [Panel Op.] 1980) ("Did
you and your father ever have an occasion to discuss an
attempt on your mother's part to poison him?");
Cavender v. State, 547 S.W.2d 601, 602 (Tex. Crim.
App. 1977) (". . . but your mother has told your uncle
Paul . . . that; isn't that the reason that he is . . .
so angry?"); Romero v. State, No.
01-11-00974-CR, 2013 WL 4477995, at *2 (Tex. App.-Houston
[1st Dist.] Aug. 20, 2013, pet. ref'd) (mem. op., not
designated for publication) (". . . is that why you
checked to make sure that those experts were able to conclude
that the gun was working properly?").
complains that the State was allowed to ask him if he
recalled assaulting this victim at various different ages.
This line of questioning did not seek to elicit any
out-of-court statement made by another and did not call for
hearsay. See Tex. R. Evid. 801(d). Miller further
complains that the trial court erred when it permitted the
State to ask him if he had ever been accused of sexually
assaulting two other children, but these questions were not
the subject of an objection. Miller contends that during his
examination by the State, the trial court allowed
inadmissible hearsay concerning an alleged incident said to
have occurred a few months before the trial, when police
investigated Miller for allegedly peeping into his
neighbor's yard. However, Miller did not make a hearsay
objection when the questions were asked. Therefore, he failed
to preserve error. See Tex. R. Evid. 103(a).
testimony, Dr. Gaines stated that in forming her opinion
regarding behavioral abnormality, she relied on records
concerning Miller, including a psychologist's report,
indictments, prison records, parole records, and criminal
history records. The trial court granted a running objection
to hearsay in the records and the trial court instructed the
jury that the evidence had been admitted for the limited
purpose of showing the basis of the expert's opinion and
that it could not be considered for the truth of the matter
asserted. Miller approved of the instruction and did not
lodge any objection to the trial court's instruction to
the jury or request further instructions. Later, Dr. Gaines
was allowed to testify that Miller's records indicated
that he had been investigated for peeping on some children,
even though Dr. Gaines acknowledged that the police dropped
the investigation without filing charges after it was proven
that Miller was several miles away from the residence when
the alleged act was said to have occurred. Miller
characterizes it as a false record, but Dr. Gaines was not
asked whether the records indicated that the investigation
was contemporaneous such that Miller could not have looked
into his neighbor's yard at some other moment. In his
reply brief, Miller concedes that Dr. Gaines did not give
false testimony but he argues she left a false impression
with the jury. Miller's testifying psychiatrist, Dr. John
Tennison, stated that he saw in the records that Miller was
investigated for the incident but nothing came of it, so Dr.
Tennison did not consider it in forming his expert opinion.
Dr. Gaines was not asked how much weight she gave the event
in her evaluation. The ambiguity would undermine Dr.
Gaines' reliance on that particular record as a basis for
her opinion, but it did not make the underlying facts
inadmissible. We conclude that the trial court could
reasonably determine that the probative value of this
underlying fact outweighed the prejudicial effect.
See Tex. R. Evid. 705(d). We conclude that the trial
court did not err in ruling on Miller's various hearsay
objections. Issue one is overruled.
issue two, Miller contends the trial court erred by
prohibiting cross-examination of Dr. Gaines regarding
"contradictory statements" in the records she
professed to have relied upon when giving her direct
testimony regarding her opinion. In the trial, Miller asked
Dr. Gaines, "And didn't the records indicate that a
rape counselor believed the victim to be embellishing the
facts?" The State objected, "hearsay, relevance,
misleading, and a collateral attack on the judgment."
The trial court did not rule on the State's objection at
the time. Miller made an offer of proof at the conclusion of
testimony, and the trial court denied his request to present
it to the jury. Several of the questions and answers in the
offer of proof had already been asked and answered in front
of the jury. The excluded testimony that the jury did not
hear consists of the following:
Q. And these records included police reports from the offense
related to [the victim]?
Q. And isn't it true that in those records a police
officer indicates that he thought the victim ...