                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-14-00270-CV
                          ____________________


       IN RE COMMITMENT OF LESTER BERTRAM WILLIAMS

________________________________________________________________________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-11-12742 CV
________________________________________________________________________

                         MEMORANDUM OPINION

      Lester Bertram Williams (Williams) appeals from a jury verdict that resulted

in his civil commitment as a sexually violent predator. See Tex. Health & Safety

Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2014) (SVP statute). In three

appellate issues, Williams complains about certain comments the trial court judge

made during voir dire and in the presence of the jury, and he argues that this

Court’s decision in In re Commitment of Richard, No. 09-13-00539-CV, 2014 Tex.

App. LEXIS 6974 (Tex. App.—Beaumont June 26, 2014, pet. denied) (mem. op.),



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cert. denied, No. 14-8485, 2015 U.S. LEXIS 2449 (Apr. 6, 2015), renders Chapter

841 unconstitutional. We affirm the trial court’s judgment.

                     COMMENTS BY THE TRIAL COURT JUDGE

      In issues one and two, Williams argues that the trial court judge improperly

commented on the weight of the evidence during voir dire and during the trial.

Williams’ first issue complains of the following comments the trial court judge

made during voir dire:

             Now, a topic we talk about in this courtroom many times is the
      issue of pedophilia. Okay? We talk about the issue of homosexuality.
      Okay? You can expect to hear from a doctor or doctors during this
      trial because this is sort of one of them psychological requirements.
      Right? And who comes in and testifies about those? Psychologists,
      psychiatrists, those type of individuals.
             What you know about the issue of pedophilia is what you’ve
      read on the Internet -- and we know that’s never wrong -- what you’ve
      been told, unless you have some higher education in this area. If
      you’re lucky enough to make the jury panel -- I use that word lucky
      because it’s a little sugar, making it a little better for you -- you’ll
      learn something in this trial.
             ....
             Now, I want to make sure -- like I said, if somebody has been
      diagnosed a pedophile -- the expert will come in and tell you what that
      means. But I have to make sure you can be a fair and impartial juror to
      Mr. Williams. So is there anybody that didn’t say “no” to that
      question that wants to change their answer and has thought about it
      and says: Well, I can’t be fair to somebody that’s been diagnosed a
      pedophile?

      Williams’ second issue complains about comments that the trial court judge

made when Williams’ attorney was cross-examining the State’s expert witness, Dr.
                                         2
Michael Arambula. Arambula testified that, based on his pre-trial examination, he

did not initially diagnose Williams with pedophilia because Williams lacked a six-

month duration for pedophilic acts or urges as required by the Diagnostic and

Statistical Manual (DSM). At trial, Williams admitted he lied to Arambula.

Arambula then explained that he “adjusted [his] diagnosis[]” because

      [Williams] essentially wiped out a good portion of the information
      that he provided me. And so, that leaves me with the records and the
      two victims. And if -- in that case, then, because this happened for one
      to two years, that would -- that would meet DSM criteria.

Williams’ attorney asked about the DSM six-month requirement for a pedophilia

diagnosis, and the following exchange occurred:

      [WILLIAMS’ COUNSEL] Q: Okay. If I said that under F.65G.3 of
      the ICD-10, the classification of mental and behavioral disorders, that
      one of the requirements for pedophilia is that the preference has been
      present for at least six months, would you believe that?

      [DR. ARAMBULA]: Sounds like there was a DSM mole --

      [STATE’S COUNSEL]: Object to lack of --

      [DR. ARAMBULA]: -- in that committee.

      [STATE’S COUNSEL]: We object to lack of foundation.

      [TRIAL COURT JUDGE]: I don’t really know what the relevance of
      that is to whether your client has a behavioral abnormality or not. So
      let’s get back to whether your client has a behavioral abnormality or
      not. Okay?



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      [WILLIAMS’ COUNSEL]: Your Honor, the relevance is that the
      doctor said it’s not in the literature anywhere. This is literature saying
      exactly that.

      [TRIAL COURT JUDGE]: No. Ask relevant questions about your
      client and whether he has a behavioral abnormality or not. Okay?

      [WILLIAMS’ COUNSEL]: Yes, Your Honor.

      [TRIAL COURT JUDGE]: That’s not relevant in this trial because it’s
      occurred for more than six months.

      [WILLIAMS’ COUNSEL]: I don’t --

      [TRIAL COURT JUDGE]: -- this trial occurred more than -- he said
      it’s occurred for more than six months. Okay? It’s what the records
      show. So ask your next question. In some trials I could see where it
      might be relevant, but this one it is not. Okay. Ask your next question.

      Williams argues that the comments the trial court judge made during voir

dire constitute “a blatant expression of the trial court’s belief that the State’s expert

was a credible and reliable source for information about pedophilia[]” because the

court was aware that only the State would be presenting expert testimony.

Williams also argues that the remarks the trial court judge made during the cross-

examination on the DSM’s six-month requirement were improper comments on the

weight of the evidence because the comments “directly communicated to the jury

[the court’s] opinion on the case,” they encouraged the jury to consider hearsay

basis evidence for its truth, and they left “the indelible impression that . . . the trial

court agreed with Dr. Arambula.”
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      A party complaining of an alleged improper comment by the trial court must

show not only that the trial court’s comments were improper but also that the

improper comment caused harm. See 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 the judgment only 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.

      To preserve error regarding a judge’s comments during a trial, a party must

both object to the comment when made and request an instruction, unless an

instruction concerning the comment would not have rendered the comment

harmless. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); In re

Commitment of Vanzandt, 156 S.W.3d 671, 674 (Tex. App.—Beaumont 2005, no

pet.). The party complaining that a court’s comments were improper bears the

burden to explain how such comments were incurable by an instruction and that it

would excuse the claimant’s failure to preserve error. See In re Stuteville, No. 01-

13-00921-CV, 2015 Tex. App. LEXIS 2243, at **33-34 (Tex. App.—Houston [1st

Dist.] Mar. 10, 2015, no pet. h.) (mem. op.).

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         The record shows that Williams failed to object to the comments during voir

dire or during the trial and that he failed to ask for any instructions to mitigate the

impression he claims the trial court’s comments gave the jury. However, he argues

that he had no obligation to object to these comments because the resulting harm

could not have been cured by a proper instruction.

         Assuming, without deciding, that the trial court’s comments were improper,

we conclude that Williams’ complaints about these matters could have been cured

by a proper instruction. On request, the trial court could have instructed the jury to

disregard its remarks and could have explained that its comments were not a

reflection of the trial court’s views regarding the merits of Williams’ case or of the

testimony, if any, which may or may not be offered by any particular witness. Such

an instruction, in our opinion, would have been a sufficient remedy that would

have cured any alleged prejudice that might relate to the trial court’s comments at

issue.

         We further consider the court’s comments in the context of the entire record.

See In re Commitment of Winkle, 434 S.W.3d 300, 313 (Tex. App.—Beaumont

2014, pet. filed) (citing In re Commitment of Barbee, 192 S.W.3d 835, 848 (Tex.

App.—Beaumont 2006, no pet.). During voir dire, the trial court judge also told the

venire to keep an open mind and to listen to the evidence.

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      [I]f people are not willing to keep an open mind and listen to
      evidence, then the laws which our Legislature pass don’t mean
      anything.
      ....
      I’ve got to make sure that if we’re talking about the issue of
      pedophilia or somebody that has been diagnosed a pedophile that you
      can be a fair and impartial juror. Everybody understand what I’m
      talking about? I want to make sure we’re not hitting on an area that
      hits too close to home. Like I said, if [it] deals with pedophilia,
      homosexuality, you can still be a fair and impartial juror for both the
      State and Mr. Williams.
      ....
      Jurors judge the credibility of witnesses. That’s what jurors do. Okay?

Williams’ attorney also told the venire,

             [T]he Judge told you a little bit earlier that jurors are -- you’re
      charged with weighing the credibility of the expert or whoever is
      testifying.
       ....
             Well, again, you would -- if you make it onto the jury[,] it’s
      your job to determine whether or not an expert is credible.

      During trial, Williams’ attorney requested a limiting instruction concerning

the expert’s basis evidence, and the court then gave a limiting instruction to the

jury. The jury charge instructed the jury that “[y]ou are the sole judges of the

credibility of the witnesses and the weight to give their testimony.” The jury

charge also reiterated the court’s limiting instruction concerning the hearsay

evidence upon which the expert based his opinion. We presume the jury followed

the trial court’s limiting instruction and the jury charge. See Columbia Rio Grande

Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009) (“The jury is
                                           7
presumed to have followed the court’s instructions.”); In re Commitment of Day,

342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied) (“We also

presume the jury followed the trial court’s limiting instruction.”). Examining the

record as a whole, we determine the complained-of comments did not unfairly

prejudice Williams. See World Car Nissan, 2013 Tex. App. LEXIS 9442, at *8.

We overrule Williams’ first and second issues.

                         IN RE COMMITMENT OF RICHARD

      In his third issue, Williams contends that this Court’s decision in In re

Commitment of Richard, 2014 Tex. App. LEXIS 6974, renders Chapter 841

unconstitutional. We recently addressed and rejected this same argument in In re

Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex. App. LEXIS 1098, at

**24-29 (Tex. App.—Beaumont February 5, 2015, no pet. h.) (mem. op.). For the

same reasoning outlined in Lucero, we reject Williams’ arguments and overrule

issue three.

      Having overruled all of Williams’ issues, we affirm the trial court’s

judgment.




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      AFFIRMED.

                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on December 22, 2014
Opinion Delivered May 7, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.




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