in Re Commitment of Billy Joe Burd ( 2020 )

Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00917-CV
———————————
IN RE COMMITMENT OF BILLY JOE BURD, Appellant
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 93025-CV
OPINION
In this case, the State filed a petition seeking to have appellant, Billy Joe Burd,
civilly committed under Texas’s Sexually Violent Predators Act (SVP Act). See
TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.153. A jury determined that Burd
is a sexually violent predator, and the trial court signed an order of civil commitment.
In four issues, Burd contends that (1) the trial court lacked jurisdiction over this
proceeding because the State did not file its petition in the court that had convicted
Burd of his most recent sexually violent offense; (2) the trial court erroneously
admitted evidence concerning the statutory screening process for determining
whether an individual is eligible to be committed as a sexually violent predator; (3)
the trial court erroneously allowed the State’s expert witness to testify that a non-
testifying expert had determined that Burd has a behavioral abnormality; and (4) the
trial court erroneously admitted the expert witness’s testimony describing the
contents of an unauthenticated audiotape.
We affirm.
Background
It is undisputed that Burd has three convictions for sexually violent offenses:
two indecency with a child offenses in Harris County in 1996 and one indecency
with a child offense in Brazoria County in 2003. The complainants in the 1996
offenses were Burd’s stepdaughters. Burd pleaded guilty to the 1996 offenses, and
the Harris County trial court deferred adjudication of guilt and placed Burd on
community supervision. After Burd was convicted of the 2003 offense in Brazoria
County, the Harris County court revoked Burd’s community supervision and
adjudicated his guilt for the 1996 offenses. In addition to these three convictions,
Burd was also charged with aggravated sexual assault of a child in 1989, but that
charge was dismissed and did not lead to a conviction. The complainant in the 1989
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case was one of Burd’s stepdaughters, and this child was also the complainant for
one of the 1996 offenses.
The Brazoria County trial court assessed Burd’s punishment for the 2003
offense at seventeen years’ confinement. In August 2017, as Burd’s period of
confinement for this offense was coming to an end, the Brazoria County District
Attorney’s Office and the Special Prosecution Unit filed a petition in the 149th
District Court of Brazoria County seeking to have Burd civilly committed as a
sexually violent predator under the SVP Act. The State alleged as follows under the
“Jurisdiction and Venue” section of its petition:
The 149th District Court of Brazoria County, Texas, has jurisdiction
and venue over this matter pursuant to Section 841.041(a) of the
[Texas] Health and Safety Code, as this is the court of conviction for
[Burd’s] most recent sexually violent offense. The 149th Judicial
District Court was acting on behalf of the 23rd Judicial District Court
because the 23rd Judicial District Court handled all felony cases prior
to January 1, 2013 in Brazoria County pursuant to local rule. A copy of
the “Order Equalizing Caseloads and Dividing the Docket” is attached
hereto as Exhibit “A,” and incorporated herein by reference. Judge
Robert E. May, who presided over the 149th Judicial District Court,
signed the judgment of conviction which was styled the 23rd Judicial
District Court. A copy of the “Judgment on Jury Verdict of Guilty” for
Cause No. 42,896 [the 2003 offense] is attached hereto as Exhibit “B,”
and incorporated herein by reference.
The State alleged in its petition that Burd has convictions for three sexually violent
offenses, as defined under the SVP Act, and that Burd “suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.”
The State requested that, upon a jury finding that Burd is a sexually violent predator,
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that the trial court commit him for treatment and supervision pursuant to the SVP
Act.
The State attached two documents to its petition. The first, entitled “Order
Equalizing Caseloads and Dividing the Docket,” was signed by the five district
judges of Brazoria County on December 28, 2012. This order stated:
On June 16, 1977 the Judges of the District Courts of Brazoria County,
Texas entered an Order Equalizing Caseloads and Dividing the Docket
(hereafter called the Order). On December 27, 1977 the Order was
amended (hereafter called the Amended Order).
Since 1977 the Courts of Brazoria County have from time to time
further amended the Order and the Amended Order by actions taken at
duly called meetings of the Judges of the District Courts of Brazoria
County, Texas, but it has been called to the attention of the District
Judges that the method of allocating all felony cases to the 23rd District
Court on a combined docket has caused some confusion.
The district judges then agreed that, effective January 1, 2013, the docket for the
Brazoria County district courts should be divided in a different way. The order
provided, among other things, that most civil and most criminal cases “shall be filed
on a pro rata basis among” the district courts; and it set out a percentage of filings in
each court. This order also stated, “A matter pending in any of the above mentioned
Courts may be heard by any judge having jurisdiction, with permission of both
judges involved, without necessity of a formal transfer.”
The State also attached to its petition the judgment of conviction and sentence
for Burd’s 2003 offense. The three documents that made up this exhibit were all
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captioned, “In the 23rd Judicial District Court of Brazoria County, Texas,” but they
were all signed by the Honorable Robert May, who was, at the time, the presiding
judge of the 149th District Court of Brazoria County.
Burd moved to dismiss the State’s petition for lack of jurisdiction, arguing
that the State improperly filed its petition in the 149th District Court when it should
have filed the petition in the 23rd District Court. Burd argued that section 841.041(a)
of the SVP Act provides that if the State decides to file a petition seeking civil
commitment of an alleged sexually violent predator, it must file the petition “in the
court of conviction for the person’s most recent sexually violent offense.” See TEX.
HEALTH & SAFETY CODE ANN. § 841.041(a). Burd argued that only the court of
conviction for the most recent qualifying offense has jurisdiction under the SVP Act.
He stated:
[The State’s] Original Petition itself identifies the 23rd District Court
as the court of [Burd’s] most recent qualifying [offense]. The mere fact
that a different judge was sitting for the 23rd District Court does not
allow the petitioner to disregard the plain language of the statute and
file this case in a court that does not have jurisdiction. This is no
different than when a visiting Judge is sitting[:] the court remains the
same, only the judge is different.
Burd argued that because the 23rd District Court is the only court with jurisdiction,
not the 149th District Court, the trial court must dismiss the State’s petition with
prejudice.
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In response, the State acknowledged that the judgment of conviction for
Burd’s 2003 offense listed the 23rd District Court “as the court of judgment.” The
State argued that, prior to January 1, 2013, “all felony cases were filed in the 23rd
Judicial District Court in Brazoria County pursuant to a local rule, and the cases were
on a combined docket.” It further argued, “The 149th Judicial District Court was
acting on behalf of the 23rd Judicial District Court pursuant to this local rule. This
is why Judge Robert May, who presided over the 149th Judicial District Court,
signed the [judgment] which was styled in the 23rd Judicial District Court.”
As evidence, the State attached a 1977 order and the 2012 order—which the
State had previously attached to its original petition—signed by the judges of the
Brazoria County District Courts concerning docket equalization among the courts.
The 1977 docket equalization order provided that “[a]ll felony cases shall be filed in
the 23rd District Court and shall be a combined docket. All courts having jurisdiction
shall designate an appropriate number of weeks to hear criminal matters.” This order
also contained a provision relating to the transfer of cases, stating, “A matter pending
in any of the above mentioned courts may be heard by any judge having jurisdiction,
with permission of both judges involved, without necessity of a formal transfer.”
The State also attached five motions and orders filed during the pendency of Burd’s
2003 offense, all of which were styled in the 149th District Court. One of these
exhibits, an “Order for Pretrial Hearing and Setting Case for Trial,” was styled “In
6
the District Court of Brazoria County, Texas 149th Judicial District” and stated: “On
this the 16TH DAY OF JULY, 2002 the above entitled and numbered cause(s) is
(are) hereby set for pre-trial hearing in accordance with Art. 28.01, [Code of
Criminal Procedure], on SEPTEMBER 11, 2002 AT 9:00 A.M. in the 149TH
DISTRICT COURT of Brazoria County, Texas.”
After an oral hearing, the trial court denied Burd’s motion to dismiss the
petition for lack of jurisdiction.
The case proceeded to trial in the 149th District Court. The State’s sole
witness was Dr. Timothy Proctor, a psychologist who evaluated Burd to form an
opinion on whether Burd has a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence, such that he meets the criteria for civil
commitment under the SVP Act. Dr. Proctor testified that he had conducted
approximately seventy behavioral abnormality evaluations since 2006 and that he
had been hired by several different offices to complete these evaluations.
Specifically, he had been hired by the Texas Department of Criminal Justice, which
has “something called a multidisciplinary team to do these evaluations,” the Special
Prosecution Unit, the State Counsel for Offenders, and defense attorneys. The
following exchange then occurred:
The State: So being a doctor who has done multiple
evaluations for the multidisciplinary team, is there a
screening process that occurs before you do the
initial evaluation?
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Dr. Proctor: Yes.
Defense counsel: Objection, Your Honor. May we approach?
The Court: Sure.
Defense counsel: I just want to put my objection on the record
regarding how that process creates—talking about
the process creates prejudice and [its] probative
value is highly prejudicial and how it affects my
client about the fact that they have decided that Mr.
Burd suffers from behavioral abnormality.
....
The State: I was just explaining the process by which case it’s
coming to. It’s related to the experience that Dr.
Proctor has to explain that to the jury. I haven’t
gotten to doctor—his opinion at this point, so I was
just referring to the process so they understand his
experience.
Defense counsel: My objection is the whole process. The whole
process within itself, it’s my position that it’s
prejudicial to talk about how it came about.
The Court: Okay. I understand that you’re objecting to any
discussions regarding the process about which your
client was evaluated.
Defense counsel: That’s it.
The Court: I will overrule the objection.
Dr. Proctor then testified that he had conducted around twenty-five evaluations as
part of the multidisciplinary team and that all of those individuals had at least two
prior sexual offenses. He also testified that, on around four or five occasions, he had
concluded as a member of the multidisciplinary team that the individual being
evaluated did not have a behavioral abnormality.
8
Dr. Proctor stated that he was not part of the multidisciplinary team for Burd’s
case, but another psychologist, Dr. Stephen Thorne, was, and Dr. Thorne had also
conducted an evaluation of Burd. Dr. Proctor testified that, in accordance with
standard practices, he reviewed and relied upon Dr. Thorne’s report from the
evaluation he conducted of Burd. When asked why he relied upon Dr. Thorne’s
report, Dr. Proctor stated:
I relied on it because it deals directly with the matters that are relevant
to my evaluation as historical information that is relevant to my
evaluation. It’s another individual who asked the kinds of questions that
I would ask so I can get the answers Mr. Burd provided to Dr. Thorne
and compare them to the answers that I received to other information
in the record. I can see what another professional who does these
evaluations determined in terms of diagnosis in terms—determine in
terms of the issues at hand, and so it’s, you know, the kind of
information that you commonly rely upon in my work. You look at a
lot of records. Some are more on point than others. This is certainly
very much on point with what I’m doing.
The State then asked Dr. Proctor what Dr. Thorne’s opinion was concerning whether
Burd had a behavioral abnormality.
Defense counsel objected to this question based on hearsay and requested a
running objection to any questions concerning Dr. Thorne’s evaluation of Burd. In
response to defense counsel’s objection, the State argued that “Dr. Proctor is a
testifying expert. He’s allowed to disclose hearsay information to show the basis of
his opinion under Rule 705.” The trial court overruled defense counsel’s objection
and gave the following instruction to the jury:
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With respect to an instruction related to hearsay, ladies and gentlemen
of the jury, the expert has testified and will testify regarding hearsay.
Hearsay is a statement made by a person at some time other than while
testifying at the current trial or hearing which a party offers into
evidence to prove the truth of the matter asserted in the statement.
Generally hearsay is not admissible as evidence during the trial.
However, in this case certain hearsay information contained in records
was reviewed and relied upon by an expert, by experts, and will be
presented to you through their expert testimony. Such hearsay evidence
is being presented to you only for the purpose of showing the basis of
the expert’s opinion and cannot be considered as evidence to prove the
truth of the matter asserted. You may not consider the hearsay
information for any other purpose including whether the facts alleged
or the records are true.
Dr. Proctor then testified that Dr. Thorne’s opinion was that Burd suffers from a
behavioral abnormality.
Dr. Proctor testified concerning the methodology that he follows when he
conducts behavioral abnormality evaluations, noting that, in addition to a face-to-
face interview with the individual, reviewing historical records is a primary
component. The relevant records generally include any law enforcement records
concerning allegations or convictions for sexual offenses, Child Protective Services
records, court documents, prison records, deposition transcripts, and evaluations
from the multidisciplinary team. Dr. Proctor testified that it is not typical for an
evaluator to conduct an independent verification of the records that are reviewed.
While Dr. Proctor was testifying concerning Burd’s 1996 offenses against his
two stepdaughters, Dr. Proctor mentioned “there was ultimately a recording where
[one of Burd’s stepdaughters] recorded a conversation between her and Mr. Burd
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about this offending.” Defense counsel objected on the basis of hearsay, and the trial
court sustained the objection “[a]t this point.” Dr. Proctor testified that, during his
review of the historical records, he reviewed and relied upon a summary of the
recording between Burd and his stepdaughter. The following exchange occurred:
The State: So, Dr. Proctor, what did the recording indicate
transpired between Mr. Burd and [his
stepdaughter]?
Defense counsel: Objection, 901. There is an issue of authentication
in this case regarding this tape that was never
listened to by me, counsel, or Dr. Proctor.
The Court: Response, if any?
The State: I’m not offering the audio recording into evidence
and so for authentication purposes, I’m asking Dr.
Proctor if that’s information he reviewed and relied
upon which he did; so under 705, he would be able
to testify about the basis of his opinion.
Defense counsel: I also object, 403. The probative value of talking
about an audiotape is essentially outweighed by the
prejudice it’s causing in this case.
The Court: It’s my understanding that this is a statement by
someone else, that he didn’t actually hear the
audiotape, is that correct?
The State: That’s correct, Your Honor.
The Court: All right. Under the circumstances as the records
reflect that this is a—why don’t you lay out
predicate of what this is, please.
The State: Dr. Proctor, did you listen to an audio recording
that’s referenced in the records?
Dr. Proctor: No.
....
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The State: Dr. Proctor, what specifically did you review in the
records related to Mr. Burd?
Dr. Proctor: I reviewed law enforcement records from 1996
where an officer documents what he heard in a taped
conversation between [Burd’s stepdaughter] and
Mr. Burd and what was contained on the recording
of that conversation.
The State: Did you personally listen to that recording?
Dr. Proctor: No.
The State: Okay. Is your understanding that that recording has
since been destroyed?
Dr. Proctor: Yes.
The State: Okay. Did you still take into consideration in
forming your opinion the information that you
reviewed from the detective’s notes related to that
recording?
Dr. Proctor: Yes.
The State: Based on that, what information from the
detective’s notes about this audio recording did you
take into consideration in forming your opinion?
Dr. Proctor: The content which I can get into of what was said
between [Burd’s stepdaughter] and Mr. Burd on that
recording.
The State: What was the content of that?
Dr. Proctor: That—and pardon some of the language I will use.
That Mr. Burd talked to [his stepdaughter] about
him touching the girls and touching their, quote,
titties; that he told them that he admitted that he had
done it several times; and that he said it wasn’t
molesting. It was loving them; that he asked if [his
stepdaughter] would allow him to rape her. And she
said no. He said that he would teach her anything
that she wanted and that it didn’t have to hurt; and
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that he considered it an honor for her to let him
touch her; and that he loves her and likes touching
her and it makes him feel good that she lets him do
that.
Defense counsel did not object to the State’s question about the content of the
detective’s notes concerning this audio recording. Dr. Proctor testified that the
detective’s notes were relevant to his overall opinion for several reasons: Burd
admitted offending behaviors, his statements were indicative of grooming, and his
statements indicated “attitudes that condone sexual offending,” which is a risk factor
for re-offending.
Dr. Proctor did not find Burd to be credible during his evaluation, and he
stated that there were several inconsistencies “between what he was telling me and
what he had told other people even recently [including Dr. Thorne] and statements
he had made in the past that were documented.” With respect to the incidents with
his stepdaughters, Burd either did not mention anything about the offenses to Dr.
Proctor, or he admitted the contact but denied that it was intentional or sexual. Dr.
Proctor opined that Burd has a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence. Specifically, Dr. Proctor testified that
there was “significant evidence in the record of [Burd’s] having a sexual interest in
non-consenting persons, in particular, prepuberty children,” and he diagnosed Burd
with having pedophilic disorder. Dr. Proctor took into consideration not just Burd’s
three uncontested convictions, but also the allegations of aggravated sexual assault
13
of a child from 1989 and other unadjudicated allegations from around the same time
as the acts that formed the basis of the 2003 offense, stating that an evaluator
“want[s] to get at the totality of the person’s sexual history and sexual offense
history” and that it is necessary “to look at everything,” even if particular allegations
do not lead to a criminal conviction.
The jury charge included the following instruction:
Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered to prove the truth of the matter
asserted. Certain hearsay information contained in records reviewed by
the experts was admitted before you through expert testimony. Such
hearsay was admitted only for the purpose of showing the basis of the
experts’ opinion and cannot be considered as evidence to prove the truth
of the matter asserted.
The charge instructed the jury that a person is a sexually violent predator if the
person is a repeat sexually violent offender and “suffers from a behavioral
abnormality that makes the person likely to engage in a predatory act of sexual
violence.” The trial court granted a directed verdict in favor of the State on the
question of whether Burd had more than one conviction for a sexually violent offense
in which a sentence had been imposed and was, therefore, a “repeat sexually violent
offender,” and the charge informed the jury of this. The sole question in the jury
charge was, “Do you find beyond a reasonable doubt that BILLY JOE BURD is a
sexually violent predator?” The jury answered “Yes.”
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The trial court subsequently signed a civil commitment order under the SVP
Act and a final judgment ordering that Burd is a sexually violent predator and that
he is to be civilly committed. Burd moved for a new trial, which was overruled by
operation of law. This appeal followed.
Jurisdiction
In his first issue, Burd argues that the trial court erroneously denied his motion
to dismiss the case for lack of jurisdiction. Specifically, Burd argues that the SVP
Act requires the State to file a civil commitment petition in the “court of conviction
for the person’s most recent sexually violent offense,” but the State filed its petition
in the 149th District Court of Brazoria County instead of the 23rd District Court of
Brazoria County, the court in which Burd was convicted of his most recent offense.
A. Standard of Review and Relevant Law
Subject-matter jurisdiction is essential to a court’s power to decide a case. City
of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (quoting Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)). Whether a particular
court has subject-matter jurisdiction is a question of law that we review de novo.
Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489 S.W.3d 448,
451 (Tex. 2016). In making this determination, we do not consider the merits of the
case, but we instead look to the pleadings and any evidence relevant to the
jurisdictional inquiry. Bland Indep. Sch. Dist., 34 S.W.3d at 554; Chicas v. Tex. Mut.
15
Ins. Co., 522 S.W.3d 67, 70 (Tex. App.—Houston [1st Dist.] 2017), aff’d, 593
S.W.3d 284 (Tex. 2019).
Texas district courts are courts of general jurisdiction. Dubai Petroleum Co.
v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); Assignees of Best Buy v. Combs, 395 S.W.3d
847, 861 (Tex. App.—Austin 2013, pet. denied). Under the Texas Constitution, the
jurisdiction of a district court “consists of exclusive, appellate, and original
jurisdiction of all actions, proceedings, and remedies, except in cases where
exclusive, appellate, or original jurisdiction may be conferred by this Constitution
or other law on some other court, tribunal, or administrative body.” TEX. CONST. art.
V, § 8; Dubai Petroleum, 12 S.W.3d at 75. “By statute, district courts have ‘the
jurisdiction provided by Article V, Section 8, of the Texas Constitution,’ and ‘may
hear and determine any cause that is cognizable by courts of law or equity and may
grant any relief that could be granted by either courts of law or equity.’” Dubai
Petroleum, 12 S.W.3d at 75 (quoting TEX. GOV’T CODE ANN. § 24.007 and TEX.
GOV’T CODE ANN. § 24.008). Typically, we presume that all claims “fall within the
jurisdiction of the district court unless the Legislature or Congress has provided that
they must be heard elsewhere.” Id. However, this presumption “does not apply to
actions grounded in statute rather than the common law.” Id.
The Texas Constitution provides that “the District Judges may exchange
districts, or hold courts for each other when they may deem it expedient, and shall
16
do so when required by law.” TEX. CONST. art. V, § 11; Celestine v. Dep’t of Family
& Protective Servs., 321 S.W.3d 222, 227 (Tex. App.—Houston [1st Dist.] 2010, no
pet.) (“The Texas Constitution and Government Code give district courts broad
discretion to exchange benches and enter orders on other cases in the same county,
even without a formal order memorializing the exchange or transfer.”). “No formal
order is needed for an exchange or transfer to take place.” Pinnacle Gas Treating,
Inc. v. Read, 160 S.W.3d 564, 566 (Tex. 2005) (per curiam). Government Code
section 74.094(a) provides:
A district or statutory county court judge may hear and determine a
matter pending in any district or statutory county court in the county
regardless of whether the matter is preliminary or final or whether there
is a judgment in the matter. The judge may sign a judgment or order in
any of the courts regardless of whether the case is transferred. The
judgment, order, or action is valid and binding as if the case were
pending in the court of the judge who acts in the matter.
TEX. GOV’T CODE ANN. § 74.094(a).
Government Code section 24.003 provides that, in counties with two or more
district courts, a district court judge may, among other things, “transfer any civil or
criminal case or proceeding on the court’s docket . . . to the docket of another district
court in the county,” “hear and determine any case or proceeding pending in another
district court in the county without having the case transferred,” “sit for another
district court in the county and hear and determine any case or proceeding pending
in that court,” and “temporarily exchange benches with the judge of another district
17
court in the county.” Id. § 24.003(a)–(b); see also id. § 24.024 (“In a county with
two or more district courts, the district judges may adopt rules governing the filing
and numbering of cases, the assignment of cases for trial, and the distribution of the
work of the courts as in their discretion they consider necessary or desirable for the
orderly dispatch of the business of the courts.”). District courts have these powers in
both civil and criminal cases. See, e.g., Davis v. State, 519 S.W.3d 251, 255–56 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d) (stating that any procedural challenge to
transfer of criminal case within county “is thus determined and resolved by proper
application of local rule promulgated pursuant to constitutional and statutory
authority; it is not a jurisdictional defect”); Celestine, 321 S.W.3d at 227; see also
TEX. CODE CRIM. PROC. ANN. art. 4.05 (providing that district courts have original
jurisdiction in felony criminal cases); Henderson v. State, 526 S.W.3d 818, 820 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d) (same).
B. Analysis
Section 841.041(a) of the SVP Act provides that the attorney representing the
State “may file, in the court of conviction for the person’s most recent sexually
violent offense, a petition alleging that the person is a sexually violent predator and
stating facts sufficient to support the allegation.” TEX. HEALTH & SAFETY CODE
ANN. § 841.041(a). Burd argues that the “court of conviction” for his most recent
sexually violent offense—the 2003 conviction for indecency with a child—is the
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23rd District Court of Brazoria County, as stated in the caption of the judgment of
conviction for that offense, and that that is the only court that has jurisdiction over
this SVP proceeding. The State, on the other hand, argues that, pursuant to a Brazoria
County local rule in effect at the time of that proceeding, although that felony
proceeding was required to be filed in the 23rd District Court, the local rule also
allowed for transfer of the proceeding to another Brazoria County district court, and
that proceeding was, in fact, transferred to the 149th District Court, which heard
pretrial matters and the trial. The State, therefore, argues that the 149th District Court
was the “court of conviction” and that it properly filed its SVP petition in that court.
We agree with the State.
In response to Burd’s motion to dismiss for lack of jurisdiction, the State
presented evidence concerning the filing of criminal cases in Brazoria County at the
time of Burd’s most recent sexually violent offense. Pursuant to a local rule enacted
in 1977, all felony criminal cases in Brazoria County “shall be filed in the 23rd
District Court and shall be a combined docket.” The 1977 docket equalization order
also provided that “[a]ll courts having jurisdiction shall designate an appropriate
number of weeks to hear criminal matters,” and the order included a transfer
provision, which stated, “A matter pending in any of the above mentioned courts
may be heard by any judge having jurisdiction, with permission of both judges
involved, without necessity of a formal transfer.” The State also attached several
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motions and orders filed during the pendency of Burd’s criminal proceeding in
Brazoria County. Each of the motions filed by his defense counsel was captioned
“149th District Court.” Each of the orders signed by the trial court was signed by the
Honorable Robert May, the presiding judge of the 149th District Court at the time.
One order, an “Order for Pretrial Hearing and Setting Case for Trial,” was styled “In
the District Court of Brazoria County, Texas 149th Judicial District” and stated: “On
this the 16TH DAY OF JULY, 2002 the above entitled and numbered cause(s) is
(are) hereby set for pre-trial hearing in accordance with Art. 28.01, [Code of
Criminal Procedure], on SEPTEMBER 11, 2002 AT 9:00 A.M. in the 149TH
DISTRICT COURT of Brazoria County, Texas.” Judge May signed the judgment
convicting Burd of the 2003 offense. The judgment and sentence, however, were
captioned, “23rd District Court.”
The Brazoria County district courts have constitutional, statutory, and local
authority to transfer cases among them, and a formal order is not necessary to make
a transfer effective. See Pinnacle Gas Treating, 160 S.W.3d at 566. The State’s
evidence indicates that although Burd’s felony criminal proceeding was filed in the
23rd District Court, as required under the Brazoria County local rule, and the
judgment of conviction stated “23rd District Court,” all proceedings, including
pretrial proceedings and the trial itself, occurred in the 149th District Court. A jury
in the 149th District Court convicted Burd of indecency with a child in 2003. We
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conclude that, despite the caption of the 2003 judgment and sentence stating “23rd
District Court,” the 149th District Court was the court of conviction for Burd’s most
recent sexually violent offense. See TEX. HEALTH & SAFETY CODE ANN.
§ 841.041(a). We hold that the 149th District Court had subject-matter jurisdiction
over this SVP Act proceeding and that the trial court did not err by denying Burd’s
motion to dismiss the proceeding for lack of subject matter jurisdiction.
We overrule Burd’s first issue.
Evidentiary Issues
In his second issue, Burd argues that the trial court erred by admitting
evidence concerning the statutory screening process for determining whether an
individual is a sexually violent predator. Specifically, Burd complains that evidence
about the multidisciplinary team and Dr. Thorne’s evaluation of Burd during that
process were highly prejudicial. In his third issue, he argues that the trial court erred
by allowing Dr. Proctor to testify that Dr. Thorne, a non-testifying expert, found that
Burd had a behavioral abnormality. Finally, in his fourth issue, Burd contends that
the trial court erred by admitting Dr. Proctor’s testimony concerning the contents of
the audiotape discussed in the records of one of the 1996 offenses because this audio
recording had not been authenticated.
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A. Standard of Review
We review a trial court’s evidentiary rulings for an abuse of discretion. In re
Commitment of Stuteville, 463 S.W.3d 543, 554 (Tex. App.—Houston [1st Dist.]
2015, pet. denied); see Diamond Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539,
545 (Tex. 2018) (“The trial court has extensive discretion in evidentiary rulings, and
we will uphold decisions within the zone of reasonable disagreement.”). A trial court
abuses its discretion when its evidentiary ruling is arbitrary, unreasonable, or without
reference to any guiding rules or principles. U-Haul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 132 (Tex. 2012); In re Commitment of Day, 342 S.W.3d 193, 218 (Tex.
App.—Beaumont 2011, pet. denied). If the trial court erred in admitting evidence,
we will not reverse unless the error probably caused the rendition of an improper
judgment. U-Haul Int’l, 380 S.W.3d at 132; Stuteville, 463 S.W.3d at 554; TEX. R.
APP. P. 44.1(a)(1). In making this determination, we are required to review the entire
record. In re Commitment of Dunsmore, 562 S.W.3d 732, 739 (Tex. App.—Houston
[1st Dist.] 2018, no pet.).
B. Evidence of Dr. Thorne’s Conclusion Concerning Behavioral Abnormality
Burd argues that the trial court erred by allowing Dr. Proctor to testify that Dr.
Thorne—who evaluated Burd as part of the multidisciplinary team—determined that
Burd had a behavioral abnormality.
22
Texas Rule of Evidence 703 provides that an expert witness may base an
opinion “on facts or data in the case that the expert has been made aware of,
reviewed, or personally observed.” TEX. R. EVID. 703. If experts in the particular
field “would reasonably rely on those kinds of facts or data in forming an opinion
on the subject, they need not be admissible for the opinion to be admitted.” Id.; In re
Commitment of Salazar, No. 09-07-345-CV, 2008 WL 4998273, *4 (Tex. App.—
Beaumont Nov. 26, 2008, pet. denied) (“When an expert relies upon hearsay in
forming his opinion, and it is of a type reasonably relied upon by such experts, the
jury is generally permitted to hear it.”). Rule 705(d) provides:
If the underlying facts or data would otherwise be inadmissible, the
proponent of the opinion may not disclose them to the jury if their
probative value in helping the jury evaluate the opinion is outweighed
by their prejudicial effect. If the court allows the proponent to disclose
those facts or data the court must, upon timely request, restrict the
evidence to its proper scope and instruct the jury accordingly.
TEX. R. EVID. 705(d); Sosa ex rel. Grant v. Koshy, 961 S.W.2d 420, 427 (Tex.
App.—Houston [1st Dist.] 1997, pet. denied) (“[U]nder rules 703 and 705, an expert
is allowed to rely on hearsay evidence in reaching his conclusions and may testify
about the basis for his conclusions, subject to an objection under [Rule] 403 that its
probative value is outweighed by the risk of prejudicial harm.”). “[T]he opponent of
such evidence may ask for a limiting instruction if he fears the evidence may be used
for a purpose other than support for the testifying expert’s opinion.” Stam v. Mack,
984 S.W.2d 747, 750 (Tex. App.—Texarkana 1999, no pet.).
23
Three of our sister courts have addressed whether an expert witness’s
testimony that a non-testifying expert previously determined that the individual has
a behavioral abnormality constitutes permissible “basis” evidence that is admissible
under Rule 705. Each of these courts has held that a non-testifying expert’s opinion
that the individual has a behavioral abnormality is “basis” evidence that the
testifying expert may rely upon when formulating his opinion and may testify to at
trial. See, e.g., In re Commitment of Tesson, 413 S.W.3d 514, 520–21 (Tex. App.—
Beaumont 2013, pet. denied); see also In re Commitment of Johnson, No. 05-17-
01171-CV, 2019 WL 364475, at *6–7 (Tex. App.—Dallas Jan. 30, 2019, no pet.)
(mem. op.); In re Commitment of Barnes, No. 04-17-00188-CV, 2018 WL 3861401,
at *4–5 (Tex. App.—San Antonio Aug. 15, 2018, no pet.) (mem. op.); In re
Commitment of Barnes, No. 05-17-00939-CV, 2018 WL 3490890, at *2–3 (Tex.
App.—Dallas July 20, 2018, pet. denied) (mem. op.); In re Commitment of Sawyer,
No. 05-17-00516-CV, 2018 WL 3372924, at *5–6 (Tex. App.—Dallas July 11,
2018, pet. denied) (mem. op.); In re Commitment of Ochoa, No. 09-15-00486-CV,
2016 WL 5417441, at *3–4 (Tex. App.—Beaumont Sept. 29, 2016, pet. denied)
(mem. op.); In re Commitment of Carr, No. 09-14-00156-CV, 2015 WL 1611949,
at *2 (Tex. App.—Beaumont Apr. 9, 2015, no pet.) (mem. op.).
24
Here, Dr. Proctor testified that Dr. Thorne was the psychologist on the
multidisciplinary team who conducted the initial evaluation of Burd. Dr. Proctor
testified:
I relied on [Dr. Thorne’s report] because it deals directly with the
matters that are relevant to my evaluation as historical information that
is relevant to my evaluation. It’s another individual who asked the kinds
of questions that I would ask so I can get the answers Mr. Burd provided
Dr. Thorne and compare them to the answers that I received to other
information in the record. I can see what another professional who does
these evaluations determined in terms of diagnosis in terms—determine
in terms of the issues at hand, and so it’s, you know, the kind of
information that you commonly rely upon in my work. You look at a
lot of records. Some are more on point than others. This is certainly
very much on point with what I’m doing.
Dr. Proctor agreed with the State that it is “standard practice in these types of cases
to review and rely upon these reports.”
After the State asked Dr. Proctor what Dr. Thorne’s opinion was concerning
whether Burd has a behavioral abnormality, Burd objected on the basis of hearsay.
The trial court overruled the objection but, at Burd’s request, gave the following
limiting instruction:
With respect to an instruction related to hearsay, ladies and gentlemen
of the jury, the expert has testified and will testify regarding hearsay.
Hearsay is a statement made by a person at some time other than while
testifying at the current trial or hearing which a party offers into
evidence to prove the truth of the matter asserted in the statement.
Generally hearsay is not admissible as evidence during the trial.
However, in this case certain hearsay information contained in records
was reviewed and relied upon by an expert, by experts, and will be
presented to you through their expert testimony. Such hearsay evidence
is being presented to you only for the purpose of showing the basis of
25
the expert’s opinion and cannot be considered as evidence to prove the
truth of the matter asserted. You may not consider the hearsay
information for any other purpose including whether the facts alleged
or the records are true.
Dr. Proctor then testified that Dr. Thorne’s opinion was that Burd has a behavioral
abnormality. The trial court included an instruction that was substantially similar to
its oral limiting instruction in the written jury charge.
Our sister courts have repeatedly held that a testifying expert in a SVP case
may permissibly testify, pursuant to Rule 705(d), that a non-testifying expert
determined that the individual has a behavioral abnormality as part of the basis for
the testifying expert’s opinion. We agree that this testimony is permissible under
Rule 705. Dr. Proctor testified that he based his own expert opinion on several
sources of information, including Dr. Thorne’s report, which contained Thorne’s
determination that Burd has a behavioral abnormality. Prior to Dr. Proctor’s
testimony concerning Dr. Thorne’s determination, the trial court properly restricted
the scope of the jury’s consideration of this evidence by giving a limiting instruction,
which was later repeated in the jury charge. “Absent record evidence to the contrary,
we presume that the jury followed the court’s limiting instructions.” Stuteville, 463
S.W.3d at 555. Here, there is no evidence in the record that the jury disregarded the
trial court’s limiting instructions and considered the evidence of Dr. Thorne’s
opinion “as evidence to prove the truth of the matter asserted” rather than as part of
the basis for Dr. Proctor’s expert opinion.
26
We conclude that the trial court did not abuse its discretion when it allowed
Dr. Proctor to testify that Dr. Thorne had determined that Burd has a behavioral
abnormality. See, e.g., Barnes, 2018 WL 3490890, at *2–3; Sawyer, 2018 WL
3372924, at *6; Carr, 2015 WL 1611949, at *2; Tesson, 413 S.W.3d at 520.
We overrule Burd’s third issue.
C. Evidence of SVP Screening Process
Burd argues that the trial court erred by allowing Dr. Proctor to testify about
the statutory screening process that an individual undergoes when the State seeks
civil commitment under the SVP Act.
The SVP Act sets out the process that the Texas Department of Criminal
Justice and the State must follow in determining whether to seek civil commitment
of a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.021–
.023. This process includes an initial notice by the Department of Criminal Justice
to the multidisciplinary team—which, by statute, must include several professionals,
including mental health professionals, employees of the Department of Criminal
Justice, a peace officer, and a licensed sex offender treatment provider—of the
anticipated release of a person who is serving a sentence for a sexually violent
offense and may be a repeat sexually violent offender. Id. § 841.021(a); see id.
§ 841.022(a) (setting out composition of multidisciplinary team).
27
Within sixty days of receiving notice, the multidisciplinary team must “assess
whether the person is a repeat sexually violent offender and whether the person is
likely to commit a sexually violent offense after release,” give notice of that
assessment to the Department of Criminal Justice, and “recommend the assessment
of the person for a behavioral abnormality, as appropriate.” Id. § 841.022(c). Once
the multidisciplinary team recommends a behavioral abnormality assessment, the
Department of Criminal Justice “shall use an expert to examine the person” to
“assess whether the person suffers from a behavioral abnormality that makes the
person likely to engage in a predatory act of sexual violence.” Id. § 841.023(a). If,
as a result of the assessment, the Department of Criminal Justice “believes that the
person suffers from a behavioral abnormality,” the Department shall give notice of
the assessment “to the attorney representing the state for the county in which the
person was most recently convicted of a sexually violent offense.” Id. § 841.023(b).
Within ninety days of the person being referred to the State’s attorney, the State may
file a petition seeking civil commitment under the SVP Act. Id. § 841.041.
The Dallas Court of Appeals has noted that “[n]o court in Texas has
considered whether it is error to permit the State to introduce evidence or comment
on the statutory administrative screening process over a timely objection.” In re
Commitment of Cavazos, No. 05-18-00894-CV, 2019 WL 2353446, at *4 (Tex.
App.—Dallas June 4, 2019, pet. denied) (mem. op.). Both this Court and the
28
Beaumont Court of Appeals have held that allowing evidence concerning the
statutory screening process does not constitute fundamental error, such that the
individual may raise the issue for the first time on appeal without a timely objection
in the trial court. See In re Commitment of Fontenot, 536 S.W.3d 906, 917 (Tex.
App.—Houston [1st Dist.] 2017, no pet.); In re Commitment of Mailhot, No. 09-13-
00270-CV, 2015 WL 182699, at *3 (Tex. App.—Beaumont Jan. 15, 2015, pet.
denied) (mem. op.). The Dallas Court, in Cavazos, declined to determine whether
admitting evidence of the statutory screening process was erroneous; instead, the
court held that the individual in that case failed to demonstrate that the testimony
“probably led to the rendition of an improper verdict” and thus was harmful. See
2019 WL 2353446, at *4–5. We reach the same result in this case.
Here, the State asked Dr. Proctor whether “there is a screening process that
occurs before you do the initial evaluation” of the individual, and Dr. Proctor
answered, “Yes.” Dr. Proctor testified that he was not part of the multidisciplinary
team for Burd, but that he has conducted evaluations for this team in approximately
twenty-five other cases. He stated that all of the individuals that he evaluated as part
of that process had at least two sexually violent offenses. He also stated that he has
found, on approximately four or five occasions as part of the multidisciplinary team,
that the individual did not have a behavioral abnormality. Dr. Proctor testified that
he has conducted “a handful” of evaluations for the State Counsel for Offenders, that
29
he has been retained approximately five times by private defense attorneys, and that
he has conducted thirty-five to forty evaluations for the Special Prosecution Unit.
He agreed that he has conducted evaluations on behalf of the State and found no
behavioral abnormality. This was the extent of Dr. Proctor’s testimony concerning
the screening process under the SVP Act.
We have already determined that the trial court did not err by allowing Dr.
Proctor to testify that Dr. Thorne had previously evaluated Burd and concluded that
he has a behavioral abnormality. In making his own determination, Dr. Proctor
considered records from each of Burd’s prior offenses, as well as information
relating to unadjudicated offenses. Dr. Proctor also considered statements that Burd
had made to Dr. Thorne that contradicted statements Burd made to Dr. Proctor,
which Dr. Proctor considered to be important due to the short period of time that
separated Dr. Thorne’s and Dr. Proctor’s evaluations of Burd. Dr. Proctor also
testified concerning several actuarial measures that he scored after his interview with
Burd, and he testified extensively concerning specific risk factors that he considered
important in making his determination that Burd has a behavioral abnormality that
makes him likely to engage in predatory acts of sexual violence.
Dr. Proctor testified that a screening process exists and that he has been
involved in that process in other cases, but he was not involved in the screening
process in this case. He stated that he has conducted behavioral abnormality
30
evaluations for several different parties, including the State and defense counsel, and
that he has, even when hired by the State, determined on previous occasions that the
individual did not have a behavioral abnormality. Dr. Proctor’s testimony about the
screening process was limited. This topic constituted a small portion of Dr. Proctor’s
overall testimony; he did not go into great detail concerning the levels involved in
the screening process or how an individual progresses through the process; and,
aside from mentioning Dr. Thorne’s conclusion that Burd has a behavioral
abnormality, Dr. Proctor did not testify that multiple people had, at various stages of
the process, made a similar determination.
We conclude that, based on this record, Dr. Proctor’s testimony concerning
the statutory screening process “likely made no difference to the jury on the issue of
whether [Burd] suffers a behavioral abnormality that makes him likely to engage in
a predatory act of sexual violence” and, therefore, probably did not lead to the
rendition of an improper judgment. See Cavazos, 2019 WL 2353446, at *4–5;
Stuteville, 463 S.W.3d at 554 (stating that we review trial court evidentiary rulings
for abuse of discretion and that we will not reverse unless any error in ruling
probably caused rendition of improper judgment). We hold that, even if the trial
court erred by allowing Dr. Proctor to testify concerning the statutory screening
31
process, any error in allowing this testimony was harmless.1 See TEX. R. APP. P.
44.1(a)(1); Stuteville, 463 S.W.3d at 554.
We overrule Burd’s second issue.
D. Evidence of Contents of Audio Recording from 1996 Offense
Finally, in his fourth issue, Burd contends that the trial court erred by allowing
Dr. Proctor to testify concerning the contents of an audiotape—purportedly a
recording made by one of Burd’s stepdaughters of a conversation that she had with
him—because the audiotape itself had not been authenticated. Among other
arguments, the State responds that, because the State did not seek to introduce the
1
Burd cites to two out-of-state cases—the Kansas Supreme Court’s decision in In re
Foster, 127 P.3d 277 (Kan. 2006), and the Iowa Supreme Court’s decision in In re
Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013)—for the proposition that
admitting evidence concerning the statutory screening process under the SVP Act
is reversible error because it unfairly “stacks the deck” against the individual. The
Dallas Court of Appeals, in In re Commitment of Cavazos, found that both of these
out-of-state cases were distinguishable from that case, and we conclude that they
are distinguishable from this case as well. See No. 05-18-00894-CV, 2019 WL
2353446, at *4 n.4 (Tex. App.—Dallas June 4, 2019, pet. denied) (mem. op.). In
both Foster (which involved the prosecutor’s opening statement) and Stenzel (which
involved admission of testimony), the jury heard that there were several levels of
review to the statutory screening process, in which multiple professionals—
including a judge making a probable cause determination in Foster—made a
determination that the individual should be prosecuted for civil commitment as a
sexually violent predator. See Foster, 127 P.3d at 280–88; Stenzel, 827 N.W.2d at
694–95, 704–08. Here, the jury heard only that there is a screening process, that Dr.
Proctor had performed behavioral-abnormality evaluations as part of this screening
process in the past, that he has conducted evaluations for several different offices,
including for defendants, and that he has, on occasion, found that an individual does
not have a behavioral abnormality. Dr. Proctor’s testimony concerning the statutory
screening process in this case is far more limited than that which was allowed by
the trial courts in both Foster and Stenzel. We conclude that neither of those cases
is persuasive authority in this case. See Cavazos, 2019 WL 2353446, at *4 n.4.
32
audiotape itself into evidence, the authenticity of the recording was not at issue and
that Dr. Proctor’s testimony concerning the detective’s summary of the recording,
which he reviewed, was admissible as basis evidence under Rule 705. We agree with
the State.
Authentication of evidence is a condition precedent to admissibility and
requires the proponent of the evidence to “make a threshold showing that would be
‘sufficient to support a finding that the matter in question is what its proponent
claims.’” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (quoting
TEX. R. EVID. 901(a)). When determining questions of authenticity, the trial court
must decide the preliminary question of whether “the proponent of the evidence has
supplied facts that are sufficient to support a reasonable jury determination that the
evidence he has proffered is authentic.” Id. The ultimate question of whether the
item of evidence is what its proponent claims is a question for the fact finder. Id.
Here, Dr. Proctor testified generally concerning the methodology that he
follows when determining whether an individual has a behavioral abnormality. A
crucial part of his methodology is reviewing records, including records from the
individual’s criminal offenses, and he testified that he typically does not re-interview
witnesses. With respect to specific items that he considered in reaching his
conclusions, Dr. Proctor testified concerning an audio recording relevant to one of
Burd’s 1996 convictions for indecency with a child. The records that Dr. Proctor
33
reviewed included a written summary, prepared by one of the detectives assigned to
the criminal case, of an audio-recorded conversation purportedly between Burd and
one of his step-daughters in which they discussed Burd’s conduct. The recording
itself was not included within the records, and Dr. Proctor testified that it had been
destroyed and that he had not heard it himself.2 Dr. Proctor testified concerning the
contents of the detective’s summary of the recording, and he explained how this
summary was relevant to several risk factors for re-offending that he considered
when reaching his expert opinion.
We agree with the State that, had the State sought to introduce the audiotape
itself into evidence, authentication of the tape would be at issue and, upon objection
by Burd, the State would need to make a threshold showing that the tape was what
the State claimed it to be. The State did not, however, seek to introduce the audiotape
because it had been destroyed. Instead, Dr. Proctor testified concerning the
detective’s written summary of the contents of the recording, which was contained
within the criminal records that Proctor relied upon when reaching his conclusions.
Dr. Proctor also testified that records from prior criminal cases are a key component
2
We note that Burd’s counsel cross-examined Dr. Proctor concerning the audio
recording and the written summary that he reviewed. Dr. Proctor acknowledged on
cross-examination that he had never heard the recording, that the tape itself no
longer exists, that he knows who the particular detective who summarized the
recording is but has never met him, that he did not “know anything about [the tape]
being authenticated,” and that the written summary did not mention whether the
detective recognized the voices of either Burd or his step-daughter.
34
of his behavioral abnormality determination and are commonly relied upon by
experts in this field. We agree with the State that the summary of the audio recording
formed part of the basis of Dr. Proctor’s opinion and that, even if the summary itself
was inadmissible, Dr. Proctor could permissibly testify that he relied upon this
summary under Rule 705. See TEX. R. EVID. 705(d); cf. In re Commitment of Grice,
558 S.W.3d 323, 328 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“Evidence
concerning the facts underlying alleged previous sexual assaults has been ruled
admissible in civil commitment cases when it assists the jury in understanding an
expert’s testimony that the person has a behavioral abnormality.”); In re
Commitment of Talley, 522 S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.] 2017,
no pet.) (“Evidence about the facts underlying previous sexual assaults is admissible
in civil commitment cases when it assists the jury in understanding an expert’s
testimony that the person has a behavioral abnormality, which is the ultimate issue
that the jury must determine.”).
We conclude that the trial court did not abuse its discretion by permitting Dr.
Proctor to testify concerning the detective’s summary of the contents of the audio
recording, as that summary formed part of the basis of Dr. Proctor’s expert opinion.
See TEX. R. EVID. 705(d).
We overrule Burd’s fourth issue.
35
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
36