Opinion
NO. 09-15-00365-CV
05-05-2016
IN RE COMMITMENT OF WINFRED GENTRY MASSINGILL
On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 14-11-12831-CV
MEMORANDUM OPINION
The State of Texas filed a petition to commit Winfred Gentry Massingill as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2015). A jury found that Massingill is a sexually violent predator, and the trial court rendered a final judgment and an order of civil commitment. In two appellate issues, Massingill challenges the denial of his motion to recuse the trial judge and the trial court's overruling of Massingill's objection to an expert's testimony regarding Massingill's truthfulness. We affirm the trial court's judgment.
ISSUE ONE
In his first issue, Massingill challenges the denial of his motion to recuse the trial judge. We review the denial of a motion to recuse under an abuse of discretion standard. In re Commitment of Winkle, 434 S.W.3d 300, 310 (Tex. App.—Beaumont 2014, pet. denied). 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.
In this case, Massingill based his motion to recuse on several instances of conduct by Judge Michael T. Seiler that Massingill argued demonstrated bias and prejudice. Massingill complained of comments that Judge Seiler made during speeches to the Texas Patriots PAC and the Montgomery County Republican Women, as well as comments and slogans made during his re-election campaign. Massingill pointed to the fact that Judge Seiler had also been recused from other cases involving sexually violent predators.
At the recusal hearing, Massingill argued that Judge Seiler had received a public reprimand from the Texas Judicial Conduct Commission ("the Commission"). Additionally, Massingill argued that the Texas Legislature had before it an amendment to the SVP statute that sought to eliminate Judge Seiler's exclusive jurisdiction over SVP cases. According to Massingill, both local attorneys and non-lawyers had questioned Judge Seiler's behavior. Massingill presented deposition testimony from Dr. John Tennison, an expert witness, regarding the manner in which Judge Seiler treated Tennison when he testified in SVP cases. The assigned judge denied Massingill's motion, stating that he did not believe that Judge Seiler's "attitude, the satire, the poor humor and, truthfully, the misconduct that the Commission found, has come into this court to deny individuals the right to a fair trial."
Several respondents filed motions to recuse, which the assigned judge addressed in a single hearing.
On appeal, Massingill maintains that the assigned judge abused his discretion by denying the motion to recuse because "Judge Seiler has proven himself to lack impartiality as a judge, and has demonstrated a deep-seated bias towards the subject matter and individuals like Appellant in civil commitment proceedings[,] . . . proven by the pervasive, well-documented history of extra[-]judicial comments and actions that he has engaged in for years." We first note that this Court has previously addressed whether Judge Seiler's campaign materials and speeches required recusal, and we held that "the assigned judge could reasonably conclude that Judge Seiler's statements did not constitute such bias or prejudice as to deny [the respondent] a fair trial." In re Commitment of Terry, No. 09-15-00053-CV, 2015 Tex. App. LEXIS 9570, **1-7 (Tex. App.—Beaumont Sept. 10, 2015, pet. denied) (mem. op.); see also Winkle, 434 S.W.3d at 310-13. Additionally, "[t]he determination of whether recusal is necessary must be made on a case-by-case fact-intensive basis." McCullough v. Kitzman, 50 S.W.3d 87, 89 (Tex. App.—Waco 2001, pet. denied). Accordingly, the fact that Judge Seiler has been recused in other cases is not dispositive on whether the assigned judge abused his discretion by denying Massingill's motion. See id.
On April 24, 2015, the Commission considered the following when issuing its public reprimand of Judge Seiler: (1) Judge Seiler's conduct towards attorneys employed by the State Counsel for Offenders and Tennison; (2) the Texas Patriots PAC meeting; and (3) the numerous motions for recusal of Judge Seiler and the granted recusal orders. The Commission concluded that:
. . . Judge Seiler engaged in numerous instances in which he treated attorneys from the State Counsel for Offenders office, as well as one of their expert witnesses, in a manner that was less than patient, dignified and courteous. While a judge has a duty to maintain order and decorum in the courtroom, which may require that he take appropriate measures to address situations in which an attorney or
witness may be acting inappropriately, Canon 3B(4) of the Texas Code of Judicial Conduct prohibits that judge from belittling, degrading and/or demeaning the attorney, witness, or anyone else with whom the judge deals in an official capacity. Moreover, Judge Seiler's comments . . . were sufficiently impatient, discourteous and undignified to cause a reasonable person to perceive that Judge Seiler harbored such a bias against the SCFO attorneys, their expert witness, and the offenders themselves, that a fair trial was not possible. Based on the incidents described above, the Commission concludes that Judge Seiler's conduct constituted willful and persistent violations of Canons 3B(4) and 3B(5) of the Texas Code of Judicial Conduct, and Article V, §I-a(6)A of the Texas Constitution.Public Reprimand and Order of Additional Education of Michael Thomas Seiler, 435th District Court Judge, Nos. CJC 12-0737-DI; 12-1143-DI; 13-0027-DI; 13-0235-DI; 13-0373-DI; 15-0129-DI;15-0374 (Comm'n Jud. Conduct Apr. 24, 2015). The Commission ordered Judge Seiler to obtain four hours of instruction with a mentor judge in the following areas: "(1) the appropriate treatment of attorneys, witnesses, and others with whom the judge deals in an official capacity; (2) avoiding bias and appearance of bias; and (3) avoiding extrajudicial conduct that casts doubt on a judge's capacity to act impartially and/or interferes with the proper performance of the judge's duties."
. . . Judge Seiler's presentation before the Texas Patriots PAC could cause a reasonable person to perceive that Judge Seiler would not be fair and impartial while presiding over civil commitment proceedings, in violation of Canon 4A(1) of the Texas Code of Judicial Conduct. Moreover, Judge Seiler's public comments about specific offenders whose cases were subject to his court's continuing jurisdiction, did suggest to a reasonable person how he would rule when those individuals come before the court in future proceedings, in violation of Canon 3B(10) of the Texas Code of Judicial Conduct. Because Judge Seiler was recused from several civil commitment cases as a direct result of his presentation before the Texas Patriots PAC, the Commission concludes that his extrajudicial conduct interfered with the proper performance of his duties, in violation of Canon 4A(2) of the Texas Code of Judicial Conduct.
Additionally, the Texas Legislature originally vested exclusive authority over SVP cases in the 435th Judicial District Court in Montgomery County. See Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.041(a), 1999 Tex. Gen. Laws 4122, 4146; see also Act of May 28, 2007, 80th Leg., R.S., ch. 1342, § 5, 2007 Tex. Gen. Laws 4563, 4564. The Texas Legislature has since repealed this provision and amended the SVP statute to remove this exclusive jurisdiction. See Act of May 21, 2015, 84th Leg., R.S., ch. 845, §§ 7, 39, 2015 Tex. Gen. Laws 2700, 2703, 2711. According to the amendment's Bill Analysis:
[T]he court that conducts the civil commitment trial is a specialty court, the 435th District Court of Montgomery County, with state employees serving as Special Prosecutors and the Texas Board of Criminal Justice, Office of State Counsel for Offenders as defense attorneys. The court is currently in complete disarray. Public statements by the elected judge from Montgomery County have rendered him ineffective and led to his recusal from hearing cases he is designated by statute to hear. This is having a negative impact on the entire Second Administrative Judicial District impacting 35 other counties.Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S. (2015). However, the amendment does not preclude Judge Seiler from presiding over SVP cases, but rather provides that a petition alleging predator status may be filed "in the court of conviction for the person's most recent sexually violent offense[.]" Tex. Health & Safety Code Ann. § 841.041(a) (West Supp. 2015).
The misconduct of which Massingill complains occurred before the Commission's public reprimand. On May 7, 2015, when the assigned judge ruled on Massingill's motion, the Commission had issued its public reprimand of Judge Seiler. Thus, the assigned judge was entitled to presume that, since being publicly reprimanded and the amending of the SVP statute, Judge Seiler 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." See 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.); see also Terry, 2015 Tex. App. LEXIS 9570, at *7. In doing so, the assigned judge could reasonably conclude that Judge Seiler's statements did not constitute such bias or prejudice as to deny Massingill a fair trial. See Winkle, 434 S.W.3d at 311. Because the assigned judge did not abuse his discretion by denying Massingill's motion to recuse, we overrule issue one.
ISSUE TWO
In his second issue, Massingill contends that the trial court erred by overruling his objection to an expert's testimony regarding Massingill's truthfulness. Specifically, Massingill complains of psychologist Dr. Darrel Turner's testimony that Massingill was "extremely non-credible" and "dishonest across the board."
"We review a trial court's evidentiary rulings for abuse of discretion." Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re Commitment of Salazar, No. 09-07-345 CV, 2008 Tex. App. LEXIS 8856, *19 (Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or if it acts arbitrarily and unreasonably. E.I. duPont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Error may not be predicated upon the admission of evidence unless the party's substantial rights are affected. Tex. R. Evid. 103(a). We will not reverse a judgment based upon an error of law unless that error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a). Excluding or admitting evidence is likely harmless if the evidence was cumulative or the rest of the evidence was so one-sided that the error likely did not affect the judgment. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009).
As discussed above, Massingill complains of psychologist Dr. Darrel Turner's testimony that Massingill was "extremely non-credible" and "dishonest across the board." Massingill's counsel objected to Turner's testimony, but the trial court overruled the objection. After Turner testified, psychiatrist Dr. Sheri Gaines testified that Massingill's version of his sexual offenses differs significantly from what Gaines saw in the records, and Gaines also testified, "[i]t appears that Mr. Massingill is lying. He is in denial about what he's done." Massingill's counsel did not object to Gaines's testimony, and the record does not reflect that Massingill's counsel obtained a running objection regarding testimony as to Massingill's veracity. Massingill testified after Gaines.
To preserve error for appellate review, the complaining party must timely and specifically object to the evidence each time it is offered or obtain a running objection. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235-36 (Tex. 2007). "The general rule is that error in the admission of testimony is deemed harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection." Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984). As discussed above, Massingill did not object to Gaines's testimony concerning Massingill's veracity and did not obtain a running objection to testimony regarding his veracity when objecting during Turner's testimony. Under these circumstances, issue two is not preserved for appellate review and is overruled. See McShane, 239 S.W.3d at 235-36, Richardson, 677 S.W.2d at 501. We affirm the trial court's judgment and order of civil commitment.
Even if error had been preserved, given the evidence in the record, we cannot say that the admission of testimony concerning Massingill's veracity probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1).
AFFIRMED.
/s/_________
STEVE McKEITHEN
Chief Justice Submitted on April 6, 2016
Opinion Delivered May 5, 2016 Before McKeithen, C.J., Kreger and Horton, JJ.