in Re Commitment of Jorge Rolando Garza ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00268-CV
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IN RE COMMITMENT OF JORGE ROLANDO GARZA
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 14-10-11191-CV
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MEMORANDUM OPINION
The State of Texas filed a petition to commit Jorge Rolando Garza as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2015). A jury found that Garza is a sexually violent predator,
and the trial court signed a final judgment and an order of civil commitment. In
two appellate issues, Garza argues that (1) Chapter 841 of the Health and Safety
Code, as amended in 2015, is facially unconstitutional; and (2) the trial court erred
by permitting the State to ask an improper commitment question during voir dire.
We affirm the trial court’s judgment and order of civil commitment.
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ISSUE ONE
In issue one, Garza argues that Chapter 841 of the Health and Safety Code,
as amended in 2015, is facially unconstitutional. Specifically, Garza complains that
the 2015 amendments eliminated the outpatient treatment program and that
Chapter 841 now requires committed persons to enter a tiered treatment program in
a total confinement facility with the possibility of moving to less restrictive
housing in the future, depending upon the person’s progress in treatment. Citing In
re Commitment of Fisher, 164 S.W.3d 637, 645-53 (Tex. 2005), in which the
Texas Supreme Court rejected a facial constitutional challenge to the prior
outpatient version of Chapter 841, Garza asserts that the 2015 amendments “tipped
Chapter 841 into the punitive realm.”
We recently addressed this issue in In re Commitment of May, No. 09-15-
00513-CV, 2016 WL 4040186 (Tex. App.—Beaumont July 28, 2016, no pet. h.).
In May, this Court addressed several factors in determining whether the amended
statute is punitive, including: (1) affirmative disability or restraint; (2) civil
commitment of sexually violent predators has historically not been viewed as
punishment; (3) whether there was a finding of scienter; (4) the traditional aims of
punishment; (5) the criminality of the behavior; (6) alternative purpose; and (7)
excessiveness, and we concluded that May had not demonstrated that the 2015
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amendments rendered Chapter 841 punitive. Id. at *4-6. This Court held that “as in
Fisher, taken together, the factors considered in determining whether this civil
statute, as amended, is punitive point to a conclusion that a commitment
proceeding under Chapter 841 of the Texas Health and Safety Code, as amended in
2015, is a civil matter.” Id. at *6. We decline to revisit our holding in May, and we
reiterate that Chapter 841 of the Texas Health and Safety Code, as amended in
2015, is neither punitive nor facially unconstitutional. See id. Accordingly, we
overrule issue one.
ISSUE TWO
In his second issue, Garza complains that the trial court erred by allowing
the State to ask an improper commitment question during voir dire. Specifically,
Garza argues that the State “asked the venire . . . what types of things it would look
for to determine whether or not Mr. Garza has ‘truly changed.’” The record reflects
that the State asked, “If someone has had a problem and they tell you that they’ve
changed[,] what types of things would you look for to evaluate whether or not
they’ve truly changed?” Garza’s counsel objected that the question constituted an
improper commitment question, and after the trial court overruled the objection,
several veniremembers offered their responses. Garza argues that the trial court’s
alleged error in permitting the State to ask an improper commitment question
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probably caused the rendition of an improper judgment because veniremember
number four, who stated that she believed classes, medical treatment, or counseling
would indicate change, was peremptorily struck by the State; therefore, she was
not on the jury to evaluate Garza’s case, which Garza states relied heavily on such
evidence. According to Garza, it is “more than merely possible” that veniremember
number four “would have given effect to Mr. Garza’s evidence of change had she
been on the jury.”
Trial courts have broad discretion with respect to voir dire. Hyundai Motor
Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006). Therefore, we review the trial
court’s decisions concerning voir dire for an abuse of discretion. In re Commitment
of Larkin, 161 S.W.3d 778, 780 (Tex. App.—Beaumont 2005, no pet.). “Fair and
impartial jurors reach a verdict based on the evidence, and not on bias or prejudice.
Voir dire inquiries to jurors should address the latter, not their opinions about the
former.” Vasquez, 189 S.W.3d at 751-52 (footnotes omitted). Because the statutory
standards for bias or prejudice in civil and criminal cases are the same, “voir dire
standards should remain consistent.” Id. at 753. Trial courts should allow counsel
broad latitude to discover any bias or prejudice so that counsel may intelligently
exercise peremptory challenges. Id. at 749. However, “[c]ounsel’s latitude in voir
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dire, while broad, is constrained by reasonable trial court control.” Id. at 750
(footnote omitted).
“Commitment questions ‘commit a prospective juror to resolve, or to refrain
from resolving, an issue a certain way after learning a particular fact.’” Lydia v.
State, 109 S.W.3d 495, 498 (Tex. Crim. App. 2003). A voir dire question
constitutes an improper commitment question when it is intended to create a bias
or prejudice in a potential juror before the prospective juror has heard the evidence.
Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005); see also Vasquez,
189 S.W.3d at 753. It is improper for counsel to ask prospective jurors what their
verdict would be if certain facts were proved. Vasquez, 189 S.W.3d at 751. When
reviewing an issue regarding whether a question constitutes an improper
commitment question, it is appropriate to consider the entire voir dire rather than a
particular question in isolation. See Halprin v. State, 170 S.W.3d 111, 119 (Tex.
Crim. App. 2005).
Viewing the particular question of which Garza complains, as well as the
totality of the voir dire, we conclude that the question did not constitute an
improper commitment question. The question did not commit a prospective juror
to resolve, or refrain from resolving, an issue a certain way after learning a
particular fact, nor was it intended to create a bias or prejudice in a potential juror
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before the presentation of any evidence. See Sanchez, 165 S.W.3d at 712; Vasquez,
189 S.W.3d at 753.; Lydia, 109 S.W.3d at 498. The question was open-ended and
simply inquired of prospective jurors what evidence they might find to be
probative of change. The question did not ask the prospective jurors what their
verdict would be if certain facts were proved. Vasquez, 189 S.W.3d at 751. In
addition, Garza has not established that permitting the question likely caused the
rendition of an improper judgment. Veniremember four’s statement that classes,
medical treatment, or counseling could indicate change does not mean that she
would have favorably viewed Garza’s evidence or convinced other jurors to do so.
See Tex. R. App. P. 44.1(a)(1). For all of these reasons, we overrule issue two and
affirm the trial court’s judgment and order of civil commitment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on April 6, 2016
Opinion Delivered August 25, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.
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