in Re Commitment of Michael Anthony Pettis ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00173-CV
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IN RE COMMITMENT OF MICHAEL ANTHONY PETTIS
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 14-10-11086-CV
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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.
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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
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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.
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CHARLES KREGER
Justice
Submitted on December 21, 2015
Opinion Delivered June 16, 2016
Before Kreger, Horton, and Johnson, JJ.
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