in Re Commitment of George Leander Coley ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00100-CV
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IN RE COMMITMENT OF GEORGE LEANDER COLEY
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-08-08647 CV
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MEMORANDUM OPINION
The State of Texas filed a petition to commit George Leander Coley as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2014). A jury found that Coley is a sexually violent predator
and the trial court rendered a final judgment and an order of civil commitment. In
two appellate issues, Coley challenges the denial of his motion for continuance and
certain comments made by the trial court to the jury. We affirm the trial court’s
judgment.
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Motion for Continuance
In issue one, Coley contends that the trial court improperly denied his
motion for continuance. In an SVP proceeding, the trial court may grant a
continuance if the person is not substantially prejudiced by the continuance and on
the request of either party and a showing of good cause. Id. § 841.063(1) (West
2010). We review a trial court’s denial of a motion for continuance under an abuse
of discretion standard. In re Commitment of Hatchell, 343 S.W.3d 560, 563-64
(Tex. App.—Beaumont 2011, no pet.).
According to Coley’s motion for continuance, he began sex offender
treatment in October 2013. On December 30th, Coley deposed the State’s expert
witness, Dr. Michael Arambula, during which Arambula testified that his opinion
that Coley is a sexually violent predator could change if Coley completed
treatment and applied the concepts learned in treatment. On January 16, 2014, five
days before trial, Coley filed his motion for continuance, in which he requested
that trial be continued for 172 days so that Coley could complete sex offender
treatment. On the day of trial, Coley presented his motion, which the trial court
denied.
Under the SVP statute, the person committed is entitled to a biennial review.
See Tex. Health & Safety Code Ann. § 841.102 (West 2010). However, at any
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time, the case manager may authorize a petition for release or the committed
person may exercise his right to file an unauthorized petition for release. See id. §§
841.121, 841.122. Because Coley possessed alternatives for seeking release from
commitment in the event he completed sex offender treatment, applied the
principles learned in treatment, and Arambula subsequently changed his opinion,
we conclude that the trial court did not abuse its discretion by denying Coley’s
motion for continuance. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635
(Tex. 1986) (“The trial court has broad discretion to grant or deny motions for
continuance.”); see also Hatchell, 343 S.W.3d at 563-64. We overrule issue one.
Trial Court’s Comments
In issue two, Coley argues that the trial court commented on the weight of
the evidence. We review a trial court’s allegedly improper comments as a question
of law. In re Commitment of Barbee, 192 S.W.3d 835, 847 (Tex. App.—Beaumont
2006, no pet.). The complaining party must show that error occurred and harm
resulted. World Car Nissan v. Abe’s Paint & Body, Inc., No. 04-12-00457-CV,
2013 Tex. App. LEXIS 9442, at *8 (Tex. App.—San Antonio July 31, 2013, pet.
denied) (mem. op.). “We examine the record as a whole to determine whether the
comment unfairly prejudiced the complaining party.” Id. We will reverse only
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when the trial court’s comments are improper and probably caused the rendition of
an improper judgment. Id. at **7-8; see also Tex. R. App. P. 44.1.
During voir dire, the trial court stated:
. . . In this court we’re talking about these topics here; and, obviously,
you’re probably going to hear from expert witnesses, psychologists
and psychiatrists, about this term, behavioral abnormality. And I tell
you that because sometimes, many times, the issues we talk about in
this courtroom are pedophilia, we talk about incest, we talk about
homosexuality. These are topics that come up here in this courtroom.
I’m just trying to put a little sugar on this for you but, unless you have
advanced training, probably what you know about these topics are
what you read on the Internet; and we know the Internet is never
wrong. If you’re lucky enough to get selected as a juror in this court
you’re probably going to get to hear people that have a lot of higher
training in these areas, and they can sort of give you some more
training in what these areas are about.
The trial court overruled Coley’s objection to “comments about the credibility of
the experts.” On appeal, Coley contends the trial court’s comments conveyed the
belief that the State’s expert was reliable and credible. According to Coley, the trial
court’s belief “arose from an extrajudicial source and demonstrates bias in favor of
the State.”
Assuming, without deciding, that the trial court’s comments were improper,
we cannot say that those comments caused the rendition of an improper judgment.
The statements were made during voir dire, before evidence had even been
presented, giving the parties ample opportunity to speak to the venire panel and
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question potential jurors. The State and Coley questioned the panel members about
their beliefs regarding expert opinion. During opening arguments, the State
explained that Arambula would testify to help the jury decide whether Coley has a
behavioral abnormality. Coley’s counsel reminded that jury that they, not the
expert, are the sole decision-makers. During closing arguments, the State explained
how the evidence supported a behavioral abnormality finding. Coley’s counsel told
the jurors that they must make up their own minds regarding the evidence. The
record is silent as to whether any particular juror was improperly influenced by the
trial court’s comments.
Additionally, in its jury charge, the trial court instructed the jury, “You are
the sole judges of the credibility of the witnesses and the weight to give their
testimony.” We assume that the jury followed the trial court’s instruction. Salinas
v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012); see also In re Commitment of Day,
342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied). Accordingly, the
record does not demonstrate that the trial court’s comments during voir dire
unfairly influenced the jury to reach a verdict it would not have otherwise reached.
See World Car Nissan, 2013 Tex. App. LEXIS 9442, at **7-8; see also Tex. R.
App. P. 44.1. We overrule issue two and affirm the trial court’s judgment.
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AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on October 13, 2014
Opinion Delivered October 23, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
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