Opinion
NO. 09-15-00011-CV
05-19-2016
IN RE COMMITMENT OF ANDRE VITTRONI JOHNSON
On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 14-05-05143-CV
MEMORANDUM OPINION
Andre Vittroni Johnson 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 five issues, Johnson argues: (1) the judge hearing Johnson's recusal motion erred by refusing to consider a photograph of a campaign sign; (2) the recusal judge erred by denying Johnson's motion to recuse; (3) the trial court erred by admitting unduly prejudicial, cumulative evidence of Johnson's crimes; (4) the trial court erred by denying a motion to withdraw as counsel; and (5) the trial court erred by denying Johnson's motion to exclude testimony from the State's expert because he examined Johnson more times than the applicable statute permits. We overrule the appellant's issues and affirm the trial court's judgment and order of civil commitment.
I. Recusal Hearing Issues
A. Background
Johnson filed a motion to recuse the trial judge on grounds that his impartiality could reasonably be questioned and that he held a personal bias or prejudice concerning the subject matter of his case. See Tex. R. Civ. P. 18b(b)(1), (2). Johnson's motion alleged the trial judge's impartiality might reasonably be questioned because the judge had recently been recused in two other matters that were similar but unrelated to Johnson's case and that the trial judge held a personal bias or prejudice concerning the case's subject matter based upon Johnson's criminal history and the nature of his previous offenses. The trial judge declined to recuse himself and forwarded the motion to the Presiding Judge of the Second Administrative Judicial Region for assignment of a judge to hear the recusal motion. See Tex. R. Civ. P. 18a(f)(1)(B). Four days before the hearing, Johnson filed an amended motion that retained the same recusal grounds that were raised in his original motion. See Tex. R. Civ. P. 18b(b)(1), (2).
The administrative judge assigned a district court judge to hear motions to recuse the same trial judge on the same or similar grounds that were filed at about the same time by Johnson, Kenneth Wayne Terry, Ernest Leroy Smith, and George Hatcher. The State was seeking to have each man committed as a sexually violent predator through a petition filed in the 435th District Court. Each of the four cases had been scheduled for trial before the sitting judge, and all four men were represented by counsel for State Counsel for Offenders. A consolidated hearing was conducted in which all four motions to recuse were considered on the same evidence.
No testimony was presented in the hearing, and the movants did not authenticate their exhibits through a sponsoring witness, but the recusal judge considered exhibits that included: (1) the petitions and requests for disclosure filed by the State in the four cases; (2) the docket control orders entered in the four cases; (3) a copy of a video of a speech given by the trial judge; (4) a transcript of the speech; (5) a September 24, 2011 news article; a November 26, 2011 news article; (6) a copy of an appellate court opinion in In re Commitment of Winkle; (7) a reporter's record for an October 30, 2014 recusal hearing in In re Commitment of James Richards; (8) an order of recusal in Richards; and (9) a copy of a September 4, 2014 recusal order in In re Commitment of Calzada. The recusal judge decided that the movants had not provided sufficient information to authenticate a campaign sign, so the court did not consider that proffered exhibit.
At the conclusion of the hearing, the recusal judge found that the motions had not been filed as soon as practicable after the grounds stated in the motion were known to the movants, and the court ruled that the trial judge's comments did not "rise[] to the level of recusal on these four cases." The recusal judge denied the motions to recuse.
B. Exclusion of Photograph
In issue one, Johnson contends that the recusal judge abused her discretion by excluding a photograph of a campaign sign because the photograph was not properly authenticated. The State did not object to Johnson's tender of the photograph during the hearing on the motion. Noting that the movants had not established whether the sign was from the trial judge's initial campaign for elected office or from his first reelection campaign four years later, the recusal judge stated that she was unwilling to consider the photograph of the sign because Johnson offered no authentication for it. Johnson argues in his appeal that the relevance of the sign arises from what the sign says and not when it was said. The recusal judge, on the other hand, discerned a distinction between the trial judge touting his experience as a prosecutor in his initial run for office and after he held judicial office for four years.
Johnson argues the sign is self-authenticating because it purports to have been affixed in the course of the trial judge's judicial campaign. See generally Tex. R. Evid. 902(7). A website address appears on the bottom of the sign depicted in the photograph, but no witness testified that the website is controlled by the trial judge. Furthermore, the exhibit was a photograph and Johnson produced no sponsoring witness to explain the circumstances under which the photograph was taken and that the photograph is an accurate representation. "The admissibility of a photograph is conditioned upon its identification by a witness as an accurate portrayal of the facts, and on verification by that witness or a person with knowledge that the photograph is a correct representation of such facts." Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314-15 (Tex. 1987). Because Johnson did not produce evidence that the photograph was tied to the trial judge's most recent campaign, he has not shown that the trial court abused its discretion in excluding the evidence. See Tex. R. Evid. 901(a).
Even if Johnson had properly authenticated the photograph, Johnson was not harmed by its exclusion. We considered the impact of this same sign as related to motions to recuse the trial judge in three previous appeals, including the appeals of Terry and Smith. See In re Commitment of Smith, No. 09-15-00059-CV, 2016 WL 1719110, at *1 (Tex. App.—Beaumont Apr. 28, 2016, no pet. h.) (mem. op.); In re Commitment of Terry, No. 09-15-00053-CV, 2015 WL 5262186, at *1 (Tex. App.—Beaumont Sept. 10, 2015, pet. denied) (mem. op.); see also In re Commitment of Winkle, 434 S.W.3d 300, 310-13 (Tex. App.—Beaumont 2014, pet. denied). In Winkle, we explained that the campaign slogan used on the sign, "A PROSECUTOR TO JUDGE THE PREDATORS," could refer to the trial judge's resume as a former prosecutor and that the slogan did not necessarily represent a promise to act as a prosecutor when sexually violent predator cases were heard generally or as to Winkle's case specifically. Winkle, 434 S.W.3d at 312. We conclude that Johnson was not harmed by the trial court's decision to exclude the photograph of a sign used in a political campaign. Smith, 2016 WL 1719110, at *1; Terry, 2015 WL 5262186, at *1; see Tex. R. App. P. 44.1(a)(1). We overrule issue one.
C. Denial of Motion to Recuse
In issue two, Johnson contends that the recusal judge erred in failing to order the trial judge's recusal because the evidence from the hearing demonstrated that the trial judge is neither neutral nor impartial. A judge must be recused when his "impartiality might reasonably be questioned[,]" or he has a "personal bias or prejudice concerning the subject matter or a party[.]" Tex. R. Civ. P. 18b(b)(1), (2). The complaining party must "show that a reasonable person, with knowledge of the circumstances, would harbor doubts as to the impartiality of the trial judge, and that the bias is of such a nature and extent that allowing the judge to serve would deny the movant's right to receive due process of law." Winkle, 434 S.W.3d at 311. We review the denial of a motion to recuse under an abuse of discretion standard. Id. at 310.
The recusal judge noted that the trial judge had been recused in a case where the trial judge had made public comments that expressly concerned the person seeking to recuse him. Johnson concedes that the trial judge did not mention him personally but he argues a 2013 speech in which the trial judge presented a slide depicting a fictional cannibalistic serial killer demonstrates that the trial judge feels antagonism towards all individuals who are eligible for civil commitment.
We addressed the issue of whether the recusal judge abused her discretion in denying the motion to recuse in Terry and in Smith, which concerned the same recusal hearing on the same evidence as in this case. See Smith, 2016 WL 1719110, at *2-3; Terry, 2015 WL 5262186, at *3. We held in Terry that the recusal judge "was entitled to presume that [the trial judge] would 'divest himself of any previous conceptions, and . . . base his judgment, not on what he originally supposed but rather upon the facts as they are developed at the trial.'" Terry, 2015 WL 5262186, at *3 (quoting Lombardino v. Firemen's & Policemen's Civil Serv. Comm'n, 310 S.W.2d 651, 654 (Tex. Civ. App.—San Antonio 1958, writ ref'd n.r.e.)). We reasoned that "[i]n doing so, as in Winkle, the assigned judge could reasonably conclude that [the trial judge's] statements did not constitute such bias or prejudice as to deny Terry a fair trial." Id. The same reasoning applies here.
Johnson argues the trial judge's comments conclusively establish his lack of impartiality because he was publicly reprimanded for making them. See State Comm'n on Judicial Conduct, Public Reprimand and Order of Additional Education, CJC Nos. 12-0737-DI; 12-1143-DI; 13-0027-DI; 13-0235-DI; 13-0373-DI; 15-0129-DI; 15-0374 (April 24, 2015). We review the recusal judge's ruling on Johnson's recusal motion based upon the evidence before her at the time of the hearing. Terry, 2015 WL 5262186, at *3. The reprimand issued after the date of the recusal hearing.
In his appellate brief, Johnson argues his motion to recuse was timely because the trial judge was recused in another case a few days before Johnson filed his motion. However, the record supports the recusal judge's conclusion that Johnson's counsel was aware of the grounds for recusal that were stated in his motion based on a highly similar motion filed by an attorney employed by The Office of State Counsel for Offenders in Winkle before civil commitment proceedings commenced in this case. During the hearing before the recusal judge, Johnson's attorney, who is employed by The Office of State Counsel for Offenders, advised the recusal judge that exhibits offered into evidence to support Johnson's motion had also been considered in Winkle. A recusal motion "must be filed as soon as practicable after the movant knows of the ground stated in the motion[.]" Tex. R. Civ. P. 18a(b)(1)(A). We conclude that the recusal judge properly ruled that Johnson's motion was untimely, and that alternatively, the evidence he produced at the hearing failed to establish that the trial judge's statements showed that he should have been recused. Smith, 2016 WL 1719110, at *2-3. We overrule issue two.
II. Trial Issues
A. Rule of Evidence 403
In issue three, Johnson contends the trial court erred by overruling his objections to testimony that Johnson argues lacked probative value. Johnson contends it was repetitive and unfairly prejudicial because it described graphic details of sexual offenses and burglaries of habitation committed by Johnson. "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. "Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis, commonly, but not necessarily, an emotional one." In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.—Beaumont 2013, pet. denied). "In applying Rule 403, factors that should be considered include the probative value of the evidence, the potential of the evidence to impress the jury in some irrational way, the time needed to develop the evidence, and the proponent's need for the evidence." Id.
In his appellate brief, Johnson addresses his Rule 403 objections to allowing two of the State's witnesses to describe his sexual offenses. He complains that allowing the witnesses to repeat facts that Johnson had already admitted could serve no purpose other than to embitter the jury against him. First, he complains of testimony from a clinical psychologist, Dr. Darrel Turner, about his interview with Johnson and what Johnson revealed to him about one of four sexual assaults in Johnson's criminal record. Turner stated that Johnson's description of the attack on this victim was notable because Johnson presented himself as a hero who persuaded his co-defendant against inflicting an additional sexual assault on the victim. Second, he complains that Dr. Michael Arambula, a psychiatrist, was allowed to describe the heinous nature of Johnson's assaults on two of Johnson's other sexual assault victims, even though Johnson and Dr. Turner had already described some of the details about these two offenses. Dr. Arambula explained that these offenses were significant because one demonstrated the callous nature of his attack and Johnson's description of the other assault showed Johnson was developing an understanding of his pattern of behavior. Although they repeated facts that appear elsewhere in the record, each witness provided insight into Johnson's behavior upon which Dr. Arambula relied to form his opinion on the ultimate issue that was not cumulative of other testimony. We overrule issue three.
B. Motion to Withdraw
Johnson contends in issue four that the trial court erred by denying his counsel's motion to withdraw after a conflict of interest became apparent. We review a trial court's denial of a motion to withdraw filed by the Office of the State Counsel for Offenders for abuse of discretion. In re Commitment of Williams, No. 09-09-00539-CV, 2010 WL 4264283, at *1 (Tex. App.—Beaumont Oct. 28, 2010, pet. denied.) (mem. op.).
In a deposition, a State-hired psychiatrist, Dr. David Self, insinuated that Johnson's attorney "coached" Johnson in preparation for his mental evaluation. Johnson's counsel asked the trial court to allow him to withdraw and to appoint counsel from outside of the Office of the State Counsel for Offenders because he believed he may be a witness necessary to establish essential facts on Johnson's behalf. The trial court denied the motion and suggested the Office of State Counsel of Offenders could assign a new lawyer to the case.
The attorney was not named on either of the parties' witness list, and he did not testify in the trial. --------
When Johnson testified in his trial, the State asked, "After this lawsuit was filed, but before your first evaluation with one of the State's doctors, your attorney coached you on how to deal with each evaluation, did he not?" Johnson denied that his attorney told him what to say to each doctor, adding "it's not like he has the answers to the test." According to the State, in a recorded prison telephone conversation, Johnson's girlfriend read text messages to Johnson from his lawyer suggesting how to approach several different potential evaluators. Without the jury being present, the trial court reconsidered counsel's motion to withdraw and declined to appoint new counsel from outside of the Office of State Counsel for Offenders. The State played to the jury a recording of a conversation between Johnson and his girlfriend. The "coaching" consisted of observations that one expert emphasizes honesty and another is impressed by biblical knowledge unless she senses the person is being manipulative, along with suggestions that Johnson needs to explain how he has changed and why he will not reoffend, and criticism that other doctors found Johnson to be cocky and arrogant. The insight into Dr. Self included an observation that he was tough but fair and that he was impressed by honestly accepting responsibility and the ability to articulate sincere religious belief, but that he has to know that the person is being honest.
In his appeal, Johnson contends the trial court had a ministerial duty to allow the Office of State Counsel for Offenders to withdraw because the State developed evidence of "coaching" by one of its lawyers. A disciplinary standard rather than one of procedure, Disciplinary Rule 3.08 provides relevant guidelines for determining whether an attorney may continue to represent a client when the lawyer becomes a witness. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004). Generally, Rule 3.08 provides that "[a] lawyer shall not . . . continue employment as an advocate before a tribunal in a . . . pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client[.]" Tex. Rules Disciplinary P. R. 3.08, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, App. A (West 2013). Johnson argues his lawyer was placed in a situation in which he might be asked to admit something untrue or call his client a liar. Neither party designated the attorney as a witness. Furthermore, none of the evidence before the jury suggested that the lawyer instructed or encouraged Johnson to testify falsely. On behalf of the State, Dr. Michael Arambula, a psychiatrist who provided his expert opinion regarding whether Johnson has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, testified that Dr. Self felt manipulated and deceived by Johnson's perceived religiosity during his evaluation, but there is no evidence in the record that Johnson feigned his religiosity or that his lawyer suggested that he do so. The recorded conversation that was played to the jury reveals that counsel warned Johnson that he must be honest when the expert examined him.
The attorney was neither an actual witness nor was it evident that he would testify at the trial because he had been accused of suborning perjury. We conclude the trial court did not abuse its discretion when it denied the motion to withdraw as counsel. We overrule issue four.
C. Motion to Exclude Expert Testimony
In issue five, Johnson contends the trial court erred by failing to grant Johnson's motion to exclude Dr. Arambula's testimony. Johnson contends Dr. Arambula lacked the authority to perform an evaluation because Dr. Self had previously performed an evaluation. Johnson argues the Health and Safety Code entitles the State to a single examination. See Tex. Health & Safety Code Ann. § 841.061(c) (West Supp. 2015). Additionally, he contends Dr. Arambula was not authorized to perform an evaluation of Johnson because the State neither obtained the trial court's permission for a second examination nor obtained an additional release of information from Johnson.
Johnson premised his motion to exclude Dr. Arambula's testimony on the notion that Dr. Arambula was not authorized to evaluate Johnson for a behavioral abnormality because his evaluation was based upon an unauthorized examination of Johnson. This Court has previously held that no order for examination is required before an expert evaluates a person for civil commitment. See In re Commitment of Hatchell, 343 S.W.3d 560, 563 (Tex. App.—Beaumont 2011, no pet.) ("Under the Sexually Violent Predator Act, the State is not required to move for a court order to have the respondent examined by a physician or psychologist."). Furthermore, neither the civil commitment statute nor the order that the trial court signed in this case prohibits a subsequent examination by a second expert for the State. The trial court's order granting the State's motion for examination states that the examination of Johnson is to be conducted "[b]y the State's Experts, immediately if possible[.]" Therefore, the order contemplates that more than one expert may examine Johnson. Likewise, section 841.061 of the Health and Safety Code contemplates that more than one examination may occur. See Tex. Health & Safety Code Ann. § 841.061(f) ("A person who is on trial to determine the person's status as a sexually violent predator is required to submit to all expert examinations that are required or permitted of the state to prepare for the person's trial."). We conclude that Dr. Arambula's examination of Johnson was not unauthorized and his evaluation of Johnson was not inadmissible. We overrule issue five and we affirm the trial court's judgment and order of civil commitment.
AFFIRMED.
/s/_________
CHARLES KREGER
Justice Submitted on September 29, 2015
Opinion Delivered May 19, 2016 Before Kreger, Horton, and Johnson, JJ.