In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00056-CV

IN RE THE COMMITMENT OF ANTHONY BERNARD WILEY

On Appeal from the 89th District Court

Wichita County, Texas

Trial Court No. 186,685-C

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

In 1995, Anthony Bernard Wiley pled guilty to aggravated sexual assault1 and to burglary 

with intent to commit aggravated sexual assault2 and was sentenced to twenty-five years’ 

imprisonment. As the end of Wiley’s sentence approached, the State filed a petition in the Wichita 

County3 district court to have him civilly committed for treatment and supervision as a sexually 

violent predator under Chapter 841 of the Texas Health and Safety Code.4

 After a jury found that 

Wiley was a sexually violent predator, the trial court entered its final judgment and an order of 

commitment that Wiley be civilly committed for treatment and supervision by the Texas Civil 

Commitment Office. 

In this appeal, Wiley claims reversible error in (1) excluding a portion of Wiley’s 

testimony, (2) prohibiting Wiley from asking proper voir dire questions, and (3) permitting the 

State to make an impermissible burden-shifting comment during closing argument. Because we 

find reversible error in prohibiting Wiley from asking a proper voir dire question, we will reverse 

the trial court’s judgment and remand this case for a new trial.

During voir dire, Wiley sought to ask the venire, “[I]s there anybody here who would be 

like, you know, there’s certain types of victims if I hear about I know I’m not going to be able to 

 1

See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2018).

2

See TEX. PENAL CODE ANN. § 30.02(d) (West Supp. 2018).

3

Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware 

of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant 

issue. See TEX. R. APP. P. 41.3.

4

See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.151 (West 2017 & West Supp. 2018).
3

be fair in these types of cases?” The State objected, and, after an off-the-record discussion at the 

bench, the trial court sustained the objection and instructed Wiley to “move on.” At the conclusion 

of voir dire, but before the jury had been selected and seated, Wiley told the trial court:

I just wanted to state so it’s clear that the question I was going to ask is if there’s 

anybody here who can’t be fair and impartial if they hear evidence about an elderly 

victim, specifically 65 or older. And I wasn’t -- the Court did not allow me to go 

into that. And the other question I was asking was what types of victims would 

prevent perspective jurors from being fair and impartial in these cases. And I 

anticipated that they would indicate to the second question, elderly victims in 

response to the first question. If they did indicate they could not be fair and 

impartial then I would have challenges for cause, but since I was not allowed to ask 

those questions, I was not afforded the opportunity to intelligently exercise my 

peremptory strikes.

Wiley and the State also advised the trial court of caselaw in civil commitment cases that allows 

voir dire questions to determine whether jurors can be fair and impartial if they hear evidence 

regarding child victims, pedophilia, and homosexuality. Nevertheless, the trial court sustained the 

State’s objection to the question. 

In his second issue, Wiley argues that the trial court abused its discretion in not allowing 

him to ask the venire if anybody could not be fair and impartial if they heard evidence about an 

elderly victim, specifically sixty-five or older. Wiley contends that the trial court’s actions 

prevented him from asking a question that went to the potential jurors’ ability to give him a fair 

trial, citing In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011). The State argues that the 

question was improper because it sought to determine the weight prospective jurors would give to 

the age of one of Wiley’s victims, citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743 (Tex. 

2006). 
4

“Litigants have the right to question potential jurors to discover biases and to properly use 

peremptory challenges.” Hill, 334 S.W.3d at 228 (citing Hyundai Motor Co., 189 S.W.3d at 749–

50). This right is subject to reasonable control by the trial court. Id. at 228–29. We review a trial 

court’s refusal to allow a voir dire question for abuse of discretion. Id. at 229. “[A] court abuses 

its discretion when its denial of the right to ask a proper question prevents determination of whether 

grounds exist to challenge for cause or denies intelligent use of peremptory challenges.” Id. 

(quoting Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989)).

The Civil Commitment of Sexually Violent Predators Act provides for the civil 

commitment of a person who is nearing the end of a sentence for a sexually violent offense and 

who may be a repeat sexually violent offender. TEX. HEALTH & SAFETY CODE ANN. §§ 841.001, 

841.021(a), (a-1), (c) (West 2017). To obtain a civil commitment, the State must show that the 

person “(1) is a repeat sexually violent offender;[5] and (2) suffers from a behavioral abnormality 

that makes the person likely to engage in a predatory act of sexual violence.” TEX. HEALTH &

SAFETY CODE ANN. § 841.003(a) (West 2017). A “behavioral abnormality” is defined as “a 

congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, 

predisposes the person to commit a sexually violent offense, to the extent that the person becomes 

 5

One of the ways to show the defendant is a repeat sexually violent offender is to show that he has been convicted of 

more than one sexually violent offense and that a sentence was imposed for at least one of the offenses. TEX. HEALTH 

& SAFETY CODE ANN. § 841.003(b) (West 2017). 
5

a menace to the health and safety of another person.” TEX. HEALTH & SAFETY CODE ANN.

§ 841.002(2) (West 2017). 

A penitentiary packet establishing that Wiley had been convicted of more than one sexually 

violent offense was admitted at a pretrial hearing for the purposes of trial. Consequently, much of 

the trial focused on Wiley’s sexual history, which formed the basis of the State’s psychologist’s 

opinion that Wiley suffers from a behavioral abnormality. The evidence showed that the victim 

of Wiley’s 1995 convictions was a sixty-eight-year-old woman. Jason Dunham, a forensic 

psychologist, testified that his review of the records of the 1995 offenses showed that, during the 

burglary, Wiley brutally beat the woman, blindfolded her, tied her hands and feet together, and 

sexually assaulted her with a knife to her throat. Dunham diagnosed Wiley as a sexual sadist who 

is aroused by violence and by the pain and suffering of another person and cited, in particular, the 

extreme and unnecessary violence Wiley committed against his sixty-eight year old victim as 

evidence of that diagnosis. He pointed to the ages of Wiley’s assault victims, which ranged from 

twenty to sixty-eight years old, as evidence of Wiley’s increased level of sexual deviancy. Based 

on Wiley’s sexual history, Dunham opined that Wiley suffers from a behavioral abnormality that 

makes him likely to engage in predatory acts of sexual violence. 

In Hill, the defendant sought to determine whether potential jurors could be able to give a 

fair trial to a person they believed to be a homosexual, but he was instructed by the trial court to 

terminate the line of questioning and to not ask a direct question about Hill’s homosexuality. Hill, 

334 S.W.3d at 228. On appeal, the Texas Supreme Court noted that 

Hill’s sexual history was part of the State’s proof of his alleged behavioral 

abnormality, yet the trial court refused questioning that went to the potential jurors’
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ability to give him a fair trial. This prevented Hill from discovering the potential 

jurors’ biases so as to strike them for cause or intelligently use peremptory 

challenges. 

Id. at 229 (citing TEX. GOV’T CODE ANN. § 62.105(4) (West 2013) (listing “bias or prejudice . . . 

against a party in [a] case” as grounds for disqualifying a juror)). Consequently, the court held 

that the trial court had abused its discretion by suspending the line of questioning and that such 

error was harmful. Id. at 229–30 (finding abuse of discretion and reversing and remanding the 

case to the trial court).

Relying on Hill, the Beaumont Court of Appeals held that a trial court abused its discretion 

when it refused to allow the defendant to ask the venire, “Would anybody on the first row find it 

hard to give someone who has been diagnosed by an expert as a pedophile a fair trial.” In re 

Commitment of Kalati, 370 S.W.3d 435, 440 (Tex. App.—Beaumont 2012, pet. denied). In 

rejecting the State’s argument that the question was a commitment question, the court stated:

The substance of the question posed by counsel was probative of the potential 

jurors’ prejudices towards persons diagnosed with pedophilia, and the question that 

was being posed did not ask the members of the venire for their opinions about the 

strength of the evidence or suggest what weight they would give to the evidence of 

Kalati’s psychiatric diagnosis.

Id. at 441. The court went on to note that, at least in civil commitment cases, “[t]he broad language 

in Hill allows counsel to discuss with the jury the subject’s sexual history relevant to the subject’s 

behavioral abnormality, so that counsel may discover the potential juror’s biases.” Id. (citing Hill, 

334 S.W.3d at 229). Likewise, other courts of appeal have held that it is an abuse of discretion, 

and that such error is harmful, when the defendant in a civil commitment case is prevented from 

inquiring into potential jurors’ biases regarding the specific sexual history of the defendant. See 
7

In re Commitment of Porter, No. 11-18-00015-CV, 2018 WL 6544751, at *1–2 (Tex. App.—

Eastland Dec. 13, 2018, no pet. h.) (mem. op.) (bestiality); In re Commitment of Miller, No. 09-

11-00450-CV, 2012 WL 3031160, at *1–3 (Tex. App.—Beaumont July 26, 2012, pet. denied) 

(mem. op.) (offense against a child).

The State seeks to distinguish Hill and Kalati, arguing that homosexuality and pedophilia 

were diagnoses and reasons for the experts’ opinions of behavioral abnormality. In Hill, the Texas 

Supreme Court stressed that it was the defendant’s sexual history that was part of the State’s proof 

of the behavioral abnormality prong of its case, which entitled Hill to discover the potential jurors’ 

biases. Contrary to the State’s contentions in its brief, Dunham’s testimony showed that the 

advanced age of Wiley’s sexual assault victim was important to his opinion regarding Wiley’s 

behavioral abnormality. Further, in Miller, no diagnosis was involved. Rather, the voir dire 

question sought to determine whether the potential jurors could set aside any bias if the defendant 

had committed sexual offenses against a child. Miller, 2012 WL 3031160, at *1.

Since Wiley’s sexual history was part of the State’s proof of his behavioral abnormality, 

we find an abuse of discretion in preventing Wiley from inquiring into the ability of the potential 
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jurors to give him a fair trial considering that history, and that the error was harmful. See Hill, 334 

S.W.3d at 229–30; Kalati, 370 S.W.3d at 441. We sustain this issue.6

 

For the reasons stated, we reverse the trial court’s judgment and order of commitment, and 

we remand this case to the trial court for a new trial.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 23, 2019

Date Decided: February 8, 2019

 6

Because Wiley’s other issues would not provide him greater relief, we need not address them.