Opinion
No. 09-09-00515-CV
Submitted on October 21, 2010.
Opinion Delivered December 30, 2010.
On Appeal from the 435th District Court Montgomery County, Texas, Trial Cause No. 08-11-10820 CV.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
The State of Texas filed a petition to commit Charles Anthony Williams as a sexually violent predator. See Tex. Health Safety Code Ann. §§ 841.001-.150 (West 2010). A jury found that Williams suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. The trial court entered a final judgment and an order of civil commitment. On appeal, Williams contends that: (1) his right to effective assistance of appellate counsel was violated; (2) the trial court improperly imposed discovery sanctions; (3) the trial court improperly admitted his videotaped depositions into evidence at trial; and (4) the evidence is legally insufficient to support the jury's verdict. We affirm the trial court's judgment.
Legal Sufficiency
In issue four, Williams challenges the legal sufficiency of the evidence to support the jury's verdict. Williams's motion for new trial preserved his legal sufficiency challenge for appellate review. See Cecil v. Smith, 804 S.W.2d 509, 512 (Tex. 1991); see also In re Commitment of Johnson, No. 09-08-00489-CV, 2009 Tex. App. LEXIS 7330, at *5 (Tex. App.-Beaumont Sept. 17, 2009, no pet.) (mem. op.).
Under the SVP statute, the State must prove, beyond a reasonable doubt, that "the person is a sexually violent predator." Tex. Health Safety Code Ann. § 841.062(a). Because the SVP statute employs a beyond-a-reasonable-doubt burden of proof, we apply the criminal standard for legal sufficiency. In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App.-Beaumont 2007, no pet.); In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.-Beaumont 2002, pet. denied). In doing so, we assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find, beyond a reasonable doubt, the elements required for commitment under the SVP statute. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Mullens, 92 S.W.3d at 885. It is the "responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see Mullens, 92 S.W.3d at 887.
A person is a "sexually violent predator" 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." Tex. Health Safety Code Ann. § 841.003(a). ""Behavioral abnormality' means 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 a menace to the health and safety of another person." Tex. Health Safety Code Ann. § 841.002(2). ""Predatory act' means an act directed toward individuals, including family members, for the primary purpose of victimization." Id. § 841.002(5). "A condition which affects either emotional capacity or volitional capacity to the extent a person is predisposed to threaten the health and safety of others with acts of sexual violence is an abnormality which causes serious difficulty in behavior control." In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.-Beaumont 2003, pet. denied). A person's ""current' difficulty controlling his behavior can be inferred from his past behavior, his own testimony, and the experts' testimony." In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at *13 (Tex. App.-Beaumont Dec. 31, 2009, no pet.) (mem. op.); In re Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at *20 (Tex. App.-Beaumont Jan. 15, 2009, no pet.) (mem. op.).
At trial, the State introduced Williams's deemed admissions into evidence. Williams was convicted of aggravated sexual assault with a deadly weapon and two charges of aggravated sexual assault by threat. Williams entered the first victim's home without permission, bound the victim, tore the victim's clothes, punched the victim, sexually assaulted the victim, sexually stimulated himself during the offense, wrapped the victim in a comforter, and put the victim in the closet. Williams stole a key to the second victim's apartment, entered the victim's home without permission, threatened to kill the victim, put toilet paper in the victim's mouth, covered the victim's head with a pillowcase, tore the victim's telephone off the wall, found the victim's service pistol and handcuffs, placed the pistol to the victim's head several times, bound the victim, and sexually assaulted the victim. Williams stole the victim's ATM card, but when he could not withdraw any money, he returned to the victim's home to sexually assault her a second time. He placed the bound victim in a bathtub, filled the tub with water, and left the following message on the victim's mirror: "We could have killed you and taken your gun. I love you baby. TTFN." Williams entered the third victim's home without permission, put a towel over the victim's head, hit the victim in the face with his fist, blindfolded the victim, gagged the victim, bound the victim, tore the victim's clothes off, poured ketchup on the victim, burned the victim with a hot iron, sexually assaulted the victim, and wrapped the victim in a blanket. He stole the victim's ATM card and vehicle. Williams admitted previously denying commission of these offenses, failing to take responsibility for his actions, having no remorse for his actions, and being aroused by the violent acts. He admitted requesting DNA tests to exonerate him, but the tests confirmed him as the perpetrator. Williams further admitted that he has had no sexual offender treatment, is likely to commit a sexually violent act, may sexually reoffend, has difficulty controlling his sexual urges and temper, is aroused by violence, and has engaged in sexual fantasies. He has been arrested for other sexual offenses.
Dr. Jack Randall Price, a forensic and clinical psychologist, examined Williams to determine whether Williams has a behavioral abnormality. Dr. Price has a Ph.D. in clinical psychology, is licensed to practice psychology in both Texas and Oklahoma, and is board certified in clinical neuropsychology and forensic psychology. Dr. Price explained that he uses his skills, training, and experience "to offer an expert opinion about whether or not the person has a behavioral abnormality as defined by the Texas Health and Safety Code." To make this determination, he "take[s] the legal standard and use[s] it to design the evaluation and to answer the question based on the legal standard for that condition." He looks at the statutory standard as a whole and does not have to determine whether a condition is congenital or acquired because the condition is "caused by one or the other or both of those."
When evaluating Williams, Dr. Price utilized the procedures used and relied upon by others in his field for conducting behavioral abnormality evaluations. He reviewed the types of records relied on by experts in his field for conducting this type of evaluation, and he relied on the facts and data contained in these standard records when formulating his opinion. Evaluations consist of reviewing descriptions from the district attorney, police, and victims; reviewing the person's psychiatric, psychological, educational, childhood, and adolescent history; reviewing prison files; conducting a face-to-face interview; and utilizing his skills, training, and experience to offer an expert opinion about whether a person has a behavioral abnormality. Dr. Price interviewed Williams in accordance with the standards in the field of psychology. He reviewed records dating back to Williams's high school days and leading up to his time in prison. Dr. Price explained that a person's history is important to understanding the person's current condition because "we are today what our history has made us in one way or another." Dr. Price further explained that a person's convictions "describe[] what the person did that was a sexual offense", which is "critical" to understanding the underlying mental condition.
Dr. Price explained that criminal history is important to his evaluation. Dr. Price found that Williams committed more than one sexually violent offense. Regarding the first victim, Dr. Price found it significant that Williams used more violence than necessary to rob the victim, and instilled fear in the victim; the offense involved both violence and sexuality; and Williams was sexually stimulated during the offense, indicating sexual sadism. Regarding the second victim, Dr. Price found it significant that the offense was a violent sexual offense that involved planning, "considerable stalking," and attacking, threatening, binding, and humiliating the victim. Regarding the third victim, Dr. Price found it significant that the offense was a "very violent sexual offense" that involved sexual sadism, including burning, beating, blindfolding, and raping the victim. Williams's assertions of innocence, even after DNA testing confirmed his guilt, indicated a lack of truthfulness, a denial of responsibility, and a lack of empathy for the victims. Thus, Dr. Price concluded that Williams had not taken the first step towards controlling his behavioral abnormality.
Dr. Price also saw an escalation of violence. He explained that escalation is typical of serial rapists because serial offenders increase the violence, threat, attack, and fear to maintain control over their victims. Dr. Price described Williams's offenses as predatory because the victims were selected, the victims were in the same age-range and physical type, the offenses occurred at night in apartments, the offenses were planned, and the premeditation increased with each new offense. Dr. Price opined that Williams is a serial rapist. Dr. Price testified that Williams has also been suspected of and arrested for committing other sexual assaults in Texas and Georgia. These offenses were similar to Williams's three convictions.
Dr. Price testified that the Diagnostic and Statistical Manual of mental disorders ("DSM-IV") is authoritative and typically relied on by psychologists for a behavioral abnormality evaluation. Although behavioral abnormality is not a diagnosis found in the DSM-IV, no specific diagnosis is necessary for finding a behavioral abnormality. Using the DSM-IV, Dr. Price diagnosed Williams with a paraphilia, sexual sadism, particularly because of the "psychological and physical suffering of the victim and [] it was [] sexually exciting to [Williams]." He explained that sexual sadism is "chronic," becomes more severe with time, and can involve serious injury or death to victims. Dr. Price also diagnosed Williams with a personality disorder because of traits showing an "antisocial or psychopathic disorder," such as lack of honesty, failure to accept responsibility, disregard for laws, lack of empathy, and manipulation. He testified that antisocial personality disorder increases the chances of committing a crime. Dr. Price explained that "[i]n conjunction with a paraphilia and history of committing sex offenses, [having traits of antisocial personality disorder] acts as a[n] . . . [e]nergizer." It increases the chances that a person will (1) "act[] upon the sexual deviance that they have because of a lack of empathy for others and a disregard for the law and a lack of taking responsibility for their actions," and (2) act upon the "sexual paraphilia or deviance . . . in a harmful, violently harmful[,] ruthlessly aggressive fashion."
Dr. Price used the Static-99 and Minnesota Sex Offender Screening Test ("MnSOST") to evaluate Williams. Dr. Price explained that these actuarial tests are based on studies of convicted sex offenders to see "what traits they have" and how often they commit a sex offense. These tests are part of the behavioral abnormality evaluation, have been tested and subjected to peer review, and are generally accepted by forensic psychologists as valid for the behavioral abnormality evaluation. Dr. Price testified that the Static-99 considers factors that do not change. Williams scored a "two" on the Static-99, placing him in the "moderate to low" risk category. Dr. Price testified that the recidivism rates for this category still give rise to concern. Under established norms, the rates of recidivism include nine percent in five years, thirteen percent in ten years, and sixteen percent in fifteen years. Under developing norms, the rates of recidivism include 4.3 to 12.8 percent in five years and 3.9 to 19.1 percent in ten years. Dr. Price testified that the MnSOST considers factors that do change. Williams scored a "one" on the MnSOST, placing him in the "low" risk category. The recidivism range for this category is eight to seventeen percent, with an average rate of twelve percent in seven years. Dr. Price testified that Williams's actuarial test scores underestimate his risk in light of the offenses themselves, but still indicate that Williams is predisposed to offend. Dr. Price opined that Williams is at a significant risk of reoffending.
As part of his evaluation, Dr. Price also conducted a risk assessment, considering risk factors that increase a person's risk and protective factors that may decrease a person's risk. Dr. Price observed the following protective factors regarding Williams: (1) older age, (2) good history while in prison, (3) few disciplinary cases, (4) ability to follow the rules, (5) good employment history, (6) relatively realistic plans for release, (7) average intelligence, (8) good academic achievement, (9) lack of perpetration against a male victim, (10) lack of psychiatric history, (11) lack of significant substance abuse, and (12) victims from a narrow age range. Dr. Price observed the following risk factors regarding Williams: (1) three or more aggravated sexual assaults, (2) "high density pattern" of offenses, (3) closeness in time between offenses, (4) "serial [] nature" of offenses, (5) threats, physical coercion, and planning used to commit offenses, (6) accomplice involvement in offenses, (7) evidence of sexual sadism, (8) unrelated stranger victims, (9) denial, failure to accept responsibility, and lack of empathy for the victims, (10) traits of antisocial personality disorder or psychopathic disorder, and (11) lack of sex offender treatment.
Considering the offenses, the records, his interview with Williams, the results of his evaluation, and his clinical judgment, training, and experience, Dr. Price concluded that Williams suffers from a "condition that's either congenitally caused or acquired that predisposes him to commit sexually violent acts in the future."
Dr. David Self, a forensic psychiatrist and medical doctor, is board certified in psychiatry and neurology. He is familiar with and uses the methodology that is used and relied on in the field of forensic psychiatry. He explained the process for his evaluation:
What we do is take other clinical experience and do an assessment of an individual's mental state over time. We do analysis of their behavior and utilize all the sources of information we can to form an impression about whatever the question of law is. In this case, whether or not they have a behavioral abnormality that's either a congenital or acquired condition that affects their emotional, volitional capacity and predisposes them to commit a sexually violent offense. And so, basically, we do an assessment that's based on the current knowledge of the field and our experience consistent practices of the field [sic], and then we arrive at a clinical impression and then translate it into a legal impression.
Dr. Self testified that a forensic psychiatrist reviews records, such as medical, psychiatric, social, educational, and substance abuse history, characterizes the offenses, and conducts a face-to-face interview. When evaluating Williams, Dr. Self considered police reports, victim statements, prison records, health records, arrest records, and convictions, all used in the field of forensic psychiatry. He also interviewed Williams.
After reviewing arrest records and convictions, Dr. Self determined that Williams was convicted of three "stunningly violent and disturbing offenses." Dr. Self testified that all three offenses involved predatory behavior, a series of offenses, opportunity, planning, premeditation, reactive violence, instrumental violence, and sadism. He explained that "[s]tranger rape . . . means that everybody within some confines is a potential victim of that person[.]" Dr. Self saw that Williams taunted one of the victims, which indicates that he was amused by or enjoyed the victim's pain and suffering. Dr. Self found it significant that Williams was married during the offenses, because it meant that Williams had a "sexual outlet." Dr. Self testified that Williams's assertions of innocence, until trial, indicates "glibness and a real facility for deceit" in light of the compelling facts of guilt. He testified that Williams's convictions are important because his "preferential victim pool" is not present in prison, so we do not know what would have occurred had Williams not been incarcerated.
Using the DSM-IV, Dr. Self originally diagnosed Williams with paraphilia not otherwise specified ("NOS") and rule-out sexual sadism. On the day of trial, Dr. Self diagnosed Williams with sexual sadism because of the unnecessary use of force used during the offenses, humiliation of the victims, transition from hitting to torturing victims, and infliction of pain on victims. Dr. Self also diagnosed Williams with adult antisocial behavior, which is an "energizer or potentiator," meaning that a person "who is relatively consciousless and free of the bounds of law and morality that constrain the rest of us on a daily basis and . . . [has] perverse sexual desires, [] express[es] those desires more readily." He explained that these conditions are chronic and it is unlikely that "paraphillic behavior or paraphillic sexual orientation would abate." He testified that over time, these disorders become "more deeply ingrained," but sexual urges may diminish with age. Dr. Self opined that Williams is a serial rapist.
Dr. Self conducted a risk assessment and identified the following protective factors regarding Williams: (1) no psychosis, (2) no affective disorder, i.e., schizophrenia or bipolar disease, (3) no history of substance abuse, (4) good educational and job history, (5) average intellect, (6) family support, (7) previous marriage, and (8) rededication to Christ. Dr. Self identified the following risk factors regarding Williams: (1) predatory violent behavior with instrumental violence and "sadistic team," (2) use of weapons during the offenses, (3) a "pool" of victims that is neither "narrow" nor "restricted," (4) failure to express remorse or concern, (5) denial of responsibility, (6) high frequency and severity of acts, and (7) antisocial traits. Based on his education, experience, records review, interview with Williams, and methodology used in his field, Dr. Self concluded that Williams suffers from a behavioral abnormality.
On appeal, Williams contends that the testimony of Drs. Price and Self is conclusory and speculative because they (1) merely speculated, based on "old and dated police reports," that Williams might commit future acts of sexual violence, (2) failed to provide substance or authority to support their opinions, and (3) failed to identify either a congenital or acquired condition that Williams might have. He complains that the actuarial tests relied on by Dr. Price are neither relevant nor probative. Williams argues "just because a study sample of sex offenders generally re-offends at a particular rate, is not probative that a particular individual will do so, and certainly does not prove that the individual suffers from a "condition' defined as a "behavioral abnormality.'" Finally, Williams contends that the State failed to show that he has serious difficulty controlling his behavior.
"Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact "more probable or less probable.'" City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)). "Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence." Id. "When a scientific opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the opinion is unreliable." Id. at 818. "But if no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection." Id. ""[W]hen a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.'" Id. at 817 (quoting Coastal Transp., 136 S.W.3d at 233); see In re Commitment of Barbee, 192 S.W.3d 835, 843 (Tex. App.-Beaumont 2006, no pet.).
Williams's complaints regarding records and actuarial tests concern the foundational data used or relied on by Dr. Price and Dr. Self in reaching their opinions. Williams did not object at trial to the experts' use of records or actuarial tests. Accordingly, to the extent Williams challenges the reliability of the experts' testimony, his complaint is not preserved for appeal. See Pollock, 284 S.W.3d at 816-17; see also Barbee, 192 S.W.3d at 843; Burnett, 2009 Tex. App. LEXIS 9930, at **4-5.
To the extent Williams challenges the experts' opinions as baseless, the testimony of Dr. Price and Dr. Self is neither conclusory nor speculative. According to the record, both Dr. Price and Dr. Self are licensed in their respective fields. See Burnett, 2009 Tex. App. LEXIS 9930, at *14. They interviewed Williams, conducted risk assessments, and reviewed records regarding Williams's background, offenses, and incarceration. See id. Dr. Price administered actuarial tests and testified that these types of tests are generally accepted in his field. The experts relied on the types of records relied on by experts in their respective fields and performed their evaluations in accordance with their training as professionals in their respective fields. See id. Dr. Price and Dr. Self both based their opinions on the facts and data gathered from the records they reviewed, their interviews with Williams, the risk assessments they conducted, and the actuarial tests administered. See id. They explained in detail the facts and evidence they found relevant in forming their opinions and how those facts influenced their evaluations. See id. Both experts concluded that Williams suffers from a behavioral abnormality as defined by the SVP statute. See id. Their testimony is not so speculative or conclusory as to be completely lacking in probative value. See id.
In addition to the experts' opinions that Williams has a behavioral abnormality that predisposes him to commit predatory acts of sexual violence, the jury heard evidence of Williams's admissions, risk factors, actuarial test scores, criminal history, violent sexual assaults against women, "chronic" sexual sadism that can become more severe with time, antisocial personality disorder that can increase the risk of reoffending, and designation as a "serial rapist." The jury could reasonably conclude that Williams has a behavioral abnormality that predisposes him to commit a sexually violent offense. See Jackson, 443 U.S. at 319; see also Mullens, 92 S.W.3d at 887; Almaguer, 117 S.W.3d at 506; Burnett, 2009 Tex. App. LEXIS 9930, at *13. A conclusion that Williams has serious difficulty controlling his behavior is implicit in this finding. See Grinstead, 2009 Tex. App. LEXIS 228, at *16 (citing Almaguer, 117 S.W.3d at 505); see also In re Commitment of Bailey, No. 09-09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex. App.-Beaumont Aug. 19, 2010, no pet.) (mem. op.).
Reviewing all the evidence in the light most favorable to the verdict, a rational jury could have found, beyond a reasonable doubt, that Williams has a behavioral abnormality that predisposes him to commit a predatory act of sexual violence. See Jackson, 443 U.S. at 318-19; see also Mullens, 92 S.W.3d at 885. Because the record contains legally sufficient evidence by which the jury could determine that Williams is a sexually violent predator, we overrule issue four.
Effective Assistance of Counsel
In issue one, Williams contends that both the trial court and this Court denied his right to effective assistance of counsel on appeal by refusing to allow the State Counsel for Offenders ("SCFO") to withdraw as appellate counsel.
Williams asks us to take judicial notice of our records in In re Williams, No. 09-10-00026-CV, 2010 Tex. App. LEXIS 1297 (Tex. App.-Beaumont Feb. 25, 2010, orig. proceeding) (mem. op.). Because we may take judicial notice of our own records, we grant Williams's request. See Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.-Beaumont 2004, pet. denied); see also Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 78 (Tex. App.-San Antonio 1996, writ denied).
SCFO is required to "represent an indigent person subject to a civil commitment proceeding[.]" Tex. Health Safety Code Ann. § 841.005(a). If SCFO "is unable to represent an indigent person . . . at a civil commitment proceeding . . . the court shall appoint other counsel to represent the indigent person." Id. We review a trial court's denial of the motion to withdraw filed by SCFO for abuse of discretion. In re Commitment of Williams, No. 09-09-00539-CV, 2010 Tex. App. LEXIS 8671, at *3 (Tex. App.-Beaumont Oct. 28, 2010, no pet. h.) (mem. op.); see also In re Fields, 256 S.W.3d 859, 861 (Tex. App.-Beaumont 2008, orig. proceeding [mand.denied]).
At trial, Williams was represented by an SCFO attorney. Williams filed two pro se motions for new trial, alleging ineffective assistance of trial counsel. SCFO moved to withdraw as appellate counsel, explaining that Williams wanted to file a pro se appeal on ineffective assistance grounds and asking that non-SCFO counsel be appointed to represent Williams on appeal. See Tex. Health Safety Code Ann. § 841.005(b). After a hearing, the trial court denied the motion. We denied SCFO's petition for writ of mandamus and motion to withdraw filed in this Court. See In re Williams, No. 09-10-00026-CV, 2010 Tex. App. LEXIS 1297 (Tex. App.-Beaumont Feb. 25, 2010, orig. proceeding) (mem. op.). On appeal, Williams argues that SCFO should have been permitted to withdraw as appellate counsel due to a conflict of interest that arose when Williams wanted to assert that his SCFO trial attorney rendered ineffective assistance.
Williams also filed pro se pre-trial motions, in which he alleged ineffective assistance. The trial court allowed Williams to address these motions. Williams argued that a conflict of interest existed because he and his trial counsel could not get along. The trial court explained the purpose of the SCFO and advised Williams to contact the head of the SCFO if he had a problem with his attorney.
In Williams, we addressed a virtually identical argument. See Williams, 2010 Tex. App. LEXIS 8671, at *3. We noted that the Texas Supreme Court has not addressed whether the remedy of ineffective assistance extends to civil commitments of sexually violent predators. Id. However, we explained that "[c]laims of ineffective assistance must "be firmly founded in the record' for the appellate court to evaluate the claim." Id. at *4 (citing Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002)). In that case, the appellant alleged that his SCFO trial attorney failed to call witnesses; however, the record did not show the identities of the witnesses the appellant wanted to call at trial or the facts that these witnesses would have established. Id. Thus, the ineffective assistance claim was not firmly founded in the record. Id. at *5. For this reason, we declined to decide whether the remedy of ineffective assistance extends to civil commitments of sexually violent predators, and we held as follows:
If the remedy for ineffective assistance of counsel extends to cases involving civil commitments of sexually violent predators, a matter we need not decide, the trial court did not abuse its discretion when it denied SCFO's motion to withdraw, which was not supported by the record. Without such a record, SCFO had nothing to support its claim that Williams received ineffective assistance of counsel during his trial, the argument that Williams contends he now wishes to advance in his appeal.
In summary, trial courts are not required to replace appellate counsel to advance the claims of a client that are not supported by the record.
Id. at **5-6 (citing King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Garner v. State, 864 S.W.2d 92, 98-99 (Tex. App.-Houston [1st Dist] 1993, pet. ref d)).
In this case, Williams alleged that his SCFO trial attorney was ineffective because of a conflict of interest, failure to communicate, and intentional withholding of evidence. Williams did not explain what type of conflict of interest allegedly existed, how trial counsel failed to communicate, what evidence trial counsel should have presented, or how trial counsel's actions affected the outcome of Williams's trial. See Bone, 77 S.W.3d at 833; see also Graves v. State, 310 S.W.3d 924, 929 (Tex. App.-Beaumont 2010, pet. ref d); Hajjar v. State, 176 S.W.3d 554, 566-67 (Tex. App.-Houston [1st Dist] 2004, pet. ref d). Williams's claim of ineffective assistance is not firmly founded in the record. See Bone, 77 S.W.3d at 835.
Assuming, without deciding, that the remedy of ineffective assistance extends to civil commitments of sexually violent predators, the trial court was not required to replace appellate counsel to advance Williams's claims that are not supported by the record. See Williams, 2010 Tex. App. LEXIS 8671, at **5-6. The trial court did not abuse its discretion by denying SCFO's motion to withdraw, and we need not reconsider our ruling on SCFO's motion to withdraw filed in this Court. We overrule issue one.
Discovery Sanctions
In issue two, Williams complains that the trial court improperly imposed discovery sanctions against him for failing to give his deposition. When the trial court ordered Williams to proceed nihil dicit, Williams did not object, nor did Williams file a motion for new trial on this basis. Under these circumstances, his complaint is not preserved for appellate review. See In the Interest of A.B.P., 291 S.W.3d 91, 98 (Tex. App.-Dallas 2009, no pet.); see also Approximately $5,602.00 v. State, No. 14-08-00359-CV, 2009 Tex. App. LEXIS 5209, at **3-5 (Tex. App.-Houston [14th Dist] July 2, 2009, no pet.) (mem. op.). We overrule issue two.
Nor does the record indicate that Williams made an offer of proof at trial or filed a bill of exception after trial to show what evidence he would have presented had he been allowed to do so. See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009); see also Nelson v. Duesler, No. 09-09-00288-CV, 2010 Tex. App. LEXIS 3390, at **4-5, 8-9 (Tex. App.-Beaumont May 6, 2010, no pet.) (mem. op.). Rather, Williams indicated that he had no evidence to present.
Williams's Videotaped Depositions
In issue three, Williams contends that the trial court improperly admitted his videotaped depositions into evidence because: (1) his failure to participate in depositions was irrelevant; and (2) admission of the recordings, along with the State's argument that Williams refused to participate or say anything on his behalf, shifted the burden of proof. Williams did not object to admission of the video recordings into evidence, did not object when the recordings were played for the jury, and did not object when the State argued in closing that Williams failed to participate or defend himself. Accordingly, his complaint is not preserved for appellate review. See Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007); see also Tex. R. App. P. 33.1(a). We overrule issue three. Having overruled Williams's four issues, we affirm the trial court's judgment.
Williams's motion for new trial did not challenge the State's argument as incurable. See Tex. R. Civ. P. 324(b)(5); see also Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).
AFFIRMED.