Summary
holding trial court did not abuse its discretion when it denied discovery because it reasonably could have concluded that the requesting party had the relevant information already available to him from other sources
Summary of this case from Reynolds v. ReynoldsOpinion
NO. 09-11-00286-CV
09-06-2012
IN RE COMMITMENT OF RICHARD ALLEN HINCHEY
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-07-07094 CV
MEMORANDUM OPINION
Richard Allen Hinchey appeals, challenging the trial court's order committing him as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP statute). In his appeal, Hinchey raises three issues, challenging (1) the trial court's ruling granting the State's request for a protective order, (2) the trial court's order to seal certain records it reviewed during the hearing on the State's motion for a protective order, and (3) three rulings the trial court made during Hinchey's examination of the State's expert witness that Hinchey argues restricted his right to proper cross-examination. We conclude the trial court's rulings on all three issues did not constitute an abuse of its discretion. As a result, we affirm the trial court's judgment.
Protective Order
In issue one, Hinchey argues the trial court abused its discretion by protecting a document in the possession of the Texas Department of Criminal Justice (TDCJ) from being discovered that relate to a vote taken by the Multidisciplinary Team (MDT). The document at issue reflects a vote that was made by the MDT about its recommendation regarding Hinchey's referral to an expert for further evaluation. The advice the MDT sought concerned whether Hinchey had a behavioral abnormality that made him likely to commit a future sexually violent offense. See Tex. Health & Safety Code Ann. §841.022(c) (West Supp. 2012).
After receiving notice of an offender's anticipated date of release, the MDT is required to screen persons serving sentences for sexually violent offenses who may qualify as repeat "sexually violent offender[s]." See Tex. Health & Safety Code Ann §§ 841.021-.022 (West Supp. 2012).
The pretrial proceedings show that Hinchey's attorney served a subpoena on the TDCJ asking it to produce various records relating to Hinchey, including "Any and all MDT voting records[.]" The State sought a protective order. Approximately one month later, the trial court conducted a hearing on the State's motion for a protective order. At the hearing, the only records still in dispute concerned the document regarding the MDT's vote on the question of Hinchey's referral.
During the hearing, Hinchey explained to the trial court that he wanted to determine whether the group voting on the question of further evaluating Hinchey's case contained a quorum and had recommended Hinchey's further assessment. Hinchey's attorney further explained that she also desired to discover the government offices represented by the individuals casting votes as well as which individuals had voted to recommend Hinchey's further assessment.
When the MDT voted in Hinchey's case, the MDT committee included two persons from the Texas Department of Mental Health and Mental Retardation, two persons from the TDCJ, one person from the Department of Public Safety, and two persons from the Council on Sex Offender Treatment. See Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 18, sec. 841.002, 2003 Tex. Gen. Laws 1505, 1515. The State provided the trial court with a document relevant to Hinchey's discovery request. After reviewing the records in camera, the trial court informed Hinchey's counsel that the vote was five to two and that the team members came from the appropriate agencies. However, the trial court refused to allow Hinchey to gain possession of or to review the document containing this information.
On appeal, Hinchey argues the records he sought are relevant to his defense because they relate to why the State desired to "[move] forward with commitment proceedings" against Hinchey. Hinchey points out that the expert who assessed the risk Hinchey would reoffend told the MDT that Hinchey "represents a low to moderate risk for recidivism upon release from TDCJ-ID." Hinchey suggests that the discovery the trial court denied him might explain why, despite having received an opinion that Hinchey presented a low to moderate recidivism risk, the State proceeded to file a suit seeking a commitment order.
The Texas Rules of Civil Procedure generally allow a party to discover information "reasonably calculated to lead to the discovery of admissible evidence." Tex. R. Civ. P. 192.3(a). Nevertheless, a trial court may limit discovery methods if the information sought is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;" or "the burden or expense of the proposed discovery outweighs its likely benefit[.]" Tex. R. Civ. P. 192.4(a)-(b).
During the hearing, the trial court learned that Hinchey knew the name of the expert authoring the assessment requested by the MDT, had retained the expert, and expected to use the expert as one of his witnesses at trial. It is also apparent that the trial court, during the hearing, was not satisfied that the records at issue were admissible, nor satisfied that the discovery of the records would lead to the discovery of admissible evidence. Nevertheless, the trial court attempted to satisfy Hinchey's desire for this discovery by reviewing the records at issue in camera, and orally advising his attorney that the MDT was properly constituted by the representatives who were from the required offices, as well as advising his attorney of the outcome of the MDT committee's vote.
Even if the discovery Hinchey sought is within the scope of discovery authorized by the Texas Rules of Civil Procedure, the hearing reflects that the trial court could have reasonably decided that Hinchey had the information, if relevant, from other sources already available to him, or that the court had provided it to him in a manner more convenient than producing a record that was not likely admissible on any of the issues at trial. Even if the document can be characterized as a document that is reasonably calculated to lead to the discovery of admissible evidence, the trial court did not abuse its discretion by answering the questions that Hinchey's attorney asked in lieu of providing him with the record.
Moreover, we are not persuaded, on the record before us, that the discovery Hinchey sought is reasonably calculated to lead to the discovery of admissible evidence. "The scope of discovery is largely within the discretion of the trial court." Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). "Discovery is limited to matters relevant to the case." Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex. 1995). None of the persons on the MDT were witnesses at trial, and how each member voted on a preliminary matter relating to whether Hinchey should receive further screening is not an issue relevant to the issue the jury was asked to decide—whether Hinchey suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The record at issue was neither relevant to the case nor reasonably calculated to lead to the discovery of admissible evidence. See Tex. R. Civ. P. 192.3(a).
Having reviewed the arguments of the parties regarding the order in dispute, we conclude the trial court did not abuse its discretion by granting the State's motion for a protective order. We overrule issue one.
Sealing of Records Reviewed In Camera
In his second issue, Hinchey contends the trial court erred in sealing the MDT's document that was subject to the trial court's protective order. The document at issue was provided to the trial court in camera for the discovery hearing. See Tex. R. Civ. P. 193.4(a) (requiring a party who produces documents in camera to place documents that are subject to the motion for protective order in a sealed wrapper). Rather than release the document to the State when the hearing ended, the trial court ordered it sealed, thereby making the document available for our review. See Tex. R. App. P. 34.6(g)(2) (providing the trial court with authority to issue orders relating to original exhibits that it determines may be required to be inspected by courts of appeal).
In support of issue two, Hinchey argues the trial court failed to follow Rule 76a in deciding whether to seal the documents at issue. See generally Tex. R. Civ. P. 76a (providing generally the procedures for sealing of court records). However, while Rule 76a is generally applicable to the procedures applicable to sealing court records, it contains an exception stating that the rule does not apply to documents presented in camera to the trial court for the purpose of obtaining a ruling on a discovery dispute. See Tex. R. Civ. P. 76a.2(a)(1) (excepting documents filed in camera from the scope of Rule 76a.
Hinchey also argues that the MDT record presented to the trial court during the in camera inspection is unavailable. See generally Tex. R. App. P. 34.6(f). However, after Hinchey filed his brief, we requested and obtained the record that the trial court sealed for our review. Because the sealed record is available, and because the trial court did not err by following the provisions providing for the sealing of records that apply to the parties' discovery dispute, we overrule issue two.
Restriction on Cross-Examination
In issue three, Hinchey contends the trial court abused its discretion by restricting his cross-examination of Dr. Stephen Thorne, one of the State's expert witnesses. While Dr. Thorne was testifying, Hinchey's counsel attempted to pose questions that appear to have been intended to determine Dr. Thorne's impressions regarding whether various individuals gave inconsistent statements during the investigations that led to Hinchey's prior convictions. The trial court allowed counsel, outside the jury's presence, to pursue the matter with Dr. Thorne in an offer of proof. At the conclusion of Hinchey's offer, the trial court stated: "So the questions you're attacking the 11 year old and her veracity I'm not going to let you [ask] those questions. The other questions about why he does not believe her [] or Mr. Hinchey is denying the offenses I'll let you ask those if you want. It's up to you." At that point, Hinchey's counsel advised the trial court that she had "no further questions or anything [(with respect to Dr. Thorne)] in front of the jury."
The State argues that in this case the trial court correctly applied our ruling in In re Commitment of Hinkle, No. 09-09-00548-CV, 2011 Tex. App. LEXIS 4504, at **14-17 (Tex. App.—Beaumont June 16, 2011, pet. filed) (mem. op.). In Hinkle, we held that the trial court properly excluded Hinkle's expert's statement that Hinkle had been wrongfully convicted of a prior crime because the statement was not relevant to any issues being tried in the SVP commitment proceeding. Id. However, in this case, the purpose of the examination was to determine how Dr. Thorne had used certain information he reviewed to form his opinions and to consider whether Dr. Thorne disregarded some statements in the record but not others.
Generally, courts may permit experts to be questioned regarding what matters the expert accepted or rejected in reviewing a case. See Tex. R. Evid. 705(a) (providing for the disclosure of facts or data); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 444 (Tex. 2007) ("Materials both accepted and rejected by an expert are indicative of the process by which the expert went about forming his or her opinion and may provide an effective basis for cross-examination."); In re Commitment of Polk, 187 S.W.3d 550, 555 (Tex. App.—Beaumont 2006, no pet.) (allowing cross-examination of Polk's expert concerning records his expert cited as the basis of the expert's opinion). Nevertheless, the disclosure is subject to the trial court's control, as the trial court is also permitted to exclude an expert's disclosure of underlying facts "if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial." Tex. R. Evid. 705(d). Moreover, the trial court is permitted to restrict cross-examination to matters shown to be relevant as well as to avoid the needless consumption of time. See Tex. R. Evid. 611(a)(2), (b). Hinchey's offer of proof does not persuade us that the information Hinchey sought to develop before the jury was significant to Dr. Thorne's opinion on the dispositive issue—whether Hinchey has a behavioral abnormality and is likely to reoffend.
"A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted." City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Dr. Thorne provided an extensive psychological analysis that fully explained the basis for his opinion that Hinchey has a behavioral abnormality that makes him likely to commit a predatory act of sexual violence. The offer of proof demonstrates that Dr. Thorne had a valid explanation for giving more consideration to some data in the records over other, contradictory data. Finally, at the conclusion of the offer of proof, the trial court advised Hinchey's counsel that she would be allowed to ask why Dr. Thorne had rejected Hinchey's assertion that he had not committed the prior crimes, but she chose not to do so.
Based on this record, we conclude the trial court did not abuse its discretion under the circumstances present in this record. Because the trial court did not abuse its discretion, we overrule issue three. Accordingly, we affirm the trial court's judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Before Gaultney, Kreger, and Horton, JJ.