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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-12-00349-CV

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IN RE COMMITMENT OF DONNIE DWAYNE BUNN

_______________________________________________________ ______________

On Appeal from the 435th District Court 

Montgomery County, Texas

Trial Cause No. 11-12-12936 CV 

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MEMORANDUM OPINION 

Donnie Dwayne Bunn challenges his civil commitment as a sexually violent 

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & 

Supp. 2012) (the SVP statute). A person is a “sexually violent predator” subject to 

commitment if the person: “(1) is a repeat sexually violent offender; and (2) suffers 

from a behavioral abnormality that makes the person likely to engage in a 

predatory act of sexual violence.” Id. § 841.003(a) (West 2010). Bunn raises 

discovery challenges, and also argues the trial court erred in denying his motion to 

strike the testimony of the State’s expert witness.
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DISCOVERY RULINGS

In two issues, Bunn contends the trial court erred by refusing to require the 

State to respond to his requests for admissions and by ordering him to respond to 

the State’s requests for admissions. We review the trial court’s discovery rulings 

on the admission requests under an abuse of discretion standard. See In re 

Commitment of Perez, No. 09-12-00132-CV, 2013 WL 772842, at *5 (Tex. App.—

Beaumont Feb. 28, 2013, pet. denied) (mem. op.).

Absent conflicts with other provisions of the SVP statute, the rules of 

discovery apply to SVP proceedings. See In re Commitment of Malone, 336 

S.W.3d 860, 862 (Tex. App.—Beaumont 2011, pet. denied). “[T]he State does not 

enjoy any general exemption from the requirement that it respond or object to 

requests for admissions under the same rules that apply to other litigants in civil 

cases.” See In re Commitment of Young, No. 09-11-00663-CV, 2013 WL 4758218, 

at *2 (Tex. App.—Beaumont Sept. 5, 2013, no pet. h.). The trial court erred in 

granting a protective order shielding the State from answering all requests for 

admissions.

Although Bunn argues the error is “per se harmful[,]” appellate rules 

generally require that a judgment in a civil case cannot be reversed unless there is 

error that probably caused the rendition of an improper judgment or probably 
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prevented the appellant from presenting the case to the appellate court. See Tex. R. 

App. P. 44.1(a). Relying on Ford Motor Co. v. Castillo, Bunn asserts that it is 

impossible to determine harm because the evidence he sought does not appear in 

the appellate record. 279 S.W.3d 656, 659-61 (Tex. 2009) (Trial court refused to 

allow defendant to conduct any discovery on the claim of outside influence on 

jury.). Bunn argues he was “prevent[ed] from adequately prosecuting an appeal on 

that basis[,]” and the error should be deemed harmful. Bunn does not indicate what

evidence is missing from the appellate record. We consider whether the trial 

court’s error in granting the State’s motion for protective order was harmless under 

the circumstances, or whether a new trial is required. See In re Commitment of 

Weissinger, No. 09-12-00486-CV, 2013 WL 3355758, at **3-4 (Tex. App.—

Beaumont June 27, 2013, pet. filed); In re Commitment of Perez, 2013 WL 

772842, at *6 .

The record demonstrates that Bunn had access from other sources to the 

information he sought in his requests for admissions. Prior to trial, Bunn’s counsel 

deposed his expert witness, Dr. Roger Saunders. Bunn was deposed prior to trial.

The State’s expert witness was Dr. Arambula. Bunn did not allege during trial or in 

any post-judgment motion that he did not depose, or did not have the opportunity 

to depose, Arambula prior to trial. The trial court’s docket control order required 
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the State, upon Bunn’s request, to produce the Multi-Disciplinary Team referral 

packet, which contained the records upon which the experts relied to form their 

opinions. Bunn had a list of the State’s expert and non-expert witnesses. At trial, 

Bunn did not demonstrate that he was surprised by any issue or matter contested by 

the State, or that he was unable to establish an uncontested matter that was the 

subject of a request for admission. Based on a review of the entire record, we 

cannot conclude that the error by the trial court in granting the State’s motion for 

protective order caused the rendition of an improper judgment under the 

circumstances, or prevented Bunn from presenting his case on appeal. See Tex. R. 

App. P. 44.1(a); In re Commitment of Smith, No. 09-12-00001, 2013 WL 4279647, 

at **1-3 (Tex. App.—Beaumont, Aug. 15, 2013, no pet. h.); In re Commitment of 

Weissinger, 2013 WL 3355758, at **3-4. We overrule issue one.

Bunn also contends the trial court erred in requiring him to respond to the 

State’s requests for admissions. In an SVP case, the State is permitted to submit 

requests for admissions. See In re Commitment of Delacruz, No. 09-11-00554-CV, 

2012 WL 252543, at **2-3 (Tex. App.—Beaumont Jan. 26, 2012, pet. denied)

(mem. op.). Bunn contended in his motion for a protective order that the effect of 

the trial court’s order requiring him to answer the requests for admissions was to 

lower the State’s burden of proof at trial. A matter admitted to be the truth under 
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Rule 198 is conclusively established as to a party making the admission unless the 

court permits the withdrawal or amendment of the admission. See Tex. R. Civ. P. 

198.3; In re Commitment of Frazier, No. 09-10-00033-CV, 2011 WL 2566317, at 

*2 (Tex. App.—Beaumont June 30, 2011, no pet.) (mem. op.). The Rule provides 

that “[a]n assertion that the request presents an issue for trial is not a proper 

response.” See Tex. R. Civ. P. 198.2(b). Admissions may assist the opposing party 

in satisfying its duty to produce evidence, but satisfying the burden of proof is not 

the same as lowering the burden. Rather than lowering the burden of proof, the 

State’s requests for admissions in an SVP case serve to identify matters the 

opposing party admits are true. See In re Commitment of Delacruz, 2012 WL 

252543, at *3; see also Tex. R. Civ. P. 198.1.

The jury charge included the proper burden of proof. The State explained the 

beyond-a-reasonable-doubt burden-of-proof standard during voir dire and opening 

statement; defense counsel explained the burden of proof in his opening statement 

and during closing argument.

Bunn also asserts that certain requests for admission are improper. Request 

57 asks if he admits he is “sexually aroused by young girls.” Request 58 asks if he

admits he is “sexually attracted to pre-teen girls.” Bunn admitted both in his 

responses to the State’s requests. The responses are relevant to whether he has a 
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behavioral abnormality, whether he is a danger or menace to society, and whether 

there is a risk for him to reoffend. See Tex. Health & Safety Code Ann. §§ 

841.002(2), 841.003(a). Bunn maintains that the trial court “coerced [him] to admit 

his compromised condition and his serious difficulty controlling his behavior,” and 

thereby “effectively discharged the State from proving those disputed matters 

required by the SVP statute . . . .” He argues that requests for admissions may not 

require him to admit a disputed fact, and that certain admission requests have that 

effect. But by propounding requests, the State did not “coerce” Bunn to answer the 

requests a certain way. See Tex. R. Civ. P. 198.2(b). The trial court did not abuse 

its discretion in denying Bunn’s motion for a protective order. We overrule issue 

two.

ADMISSIBILITY OF EXPERT TESTIMONY

In issue three, Bunn argues that the trial court erred in denying his motion to 

strike the testimony of the State’s forensic psychiatrist, Dr. Arambula. A trial 

court’s ruling on the admission of evidence is reviewed under an abuse of 

discretion standard. See In re Commitment of Salazar, No. 09-07-345 CV, 2008 

WL 4998273, at *2 (Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. 

op.). A trial court abuses its discretion when it acts without reference to guiding 

rules or principles or when its ruling is arbitrary or unreasonable. In re 
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Commitment of Day, 342 S.W.3d 193, 218 (Tex. App.—Beaumont 2011, pet. 

denied). Bunn contends that Dr. Arambula does not properly understand the SVP 

statute, because he agreed that anyone with a behavioral abnormality is likely to 

engage in a future act of predatory violence.

The Texas Supreme Court stated in Bohannan that “whether a person 

‘suffers from a behavioral abnormality that makes the person likely to engage in a 

predatory act of sexual violence’ is a single, unified issue.” In re Commitment of 

Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133 S.Ct. 2746, 186 

L.Ed.2d 202 (2013); In re Commitment of Anderson, 392 S.W.3d 878, 885-86

(Tex. App.—Beaumont 2013, pet. denied). “The required condition is the 

predisposition.” In re Commitment of Bohannan, 388 S.W.3d at 302. A conclusion 

that a person is likely to engage in a predatory act of sexual violence directed 

towards individuals for the primary purpose of victimization is implicit in the 

jury’s finding of a behavioral abnormality that makes him likely to engage in a 

predatory act of sexual violence. See In re Commitment of Simmons, No. 09-09-

00478-CV, 2011 WL 2420832, at *7 (Tex. App.—Beaumont Jun. 16, 2011, no 

pet.) (mem. op.). As the Supreme Court explained, “The condition and 

predisposition cannot be separate things[.]” See In re Commitment of Bohannan, 

388 S.W.3d at 303. The trial court did not abuse its discretion in admitting the 
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testimony of Dr. Arambula. We overrule issue three. We affirm the trial court’s 

judgment. 

AFFIRMED.

 

______________________________

 DAVID GAULTNEY

 Justice

Submitted on September 30, 2013

Opinion Delivered October 31, 2013

Before Gaultney, Kreger, and Horton, JJ.