in Re Commitment of Malcom Barrham Nolan, 09-21-00099-CV

Malcom Barrham Nolan, previously convicted of indecency with a child and aggravated sexual assault of a child, was the subject of a civil commitment petition under the Texas Sexually Violent Predator (SVP) statute.
A jury found Nolan suffers a behavioral abnormality making him likely to commit predatory sexual violence; the trial court entered a civil commitment judgment.
During the State’s direct examination of Nolan, the prosecutor asked whether his treatment group discussed his risk to re-offend; Nolan volunteered what his provider allegedly told him about low risk and the need for therapy.
The State objected to that testimony as hearsay; the trial court sustained the objection and curtailed further testimony on the topic.
Nolan argued on appeal the State had “opened the door” to the testimony (and had waived objection earlier); the Court found those contentions were not raised at trial and therefore not preserved.
The court also held that, even if error occurred, exclusion of the therapist statements was within the court’s discretion and any error was harmless; the commitment was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State “opened the door” to hearsay when it asked Nolan about treatment discussions	Nolan: the State’s question invited Nolan to relate his provider’s statements, so the State cannot object to that hearsay	State: the question called for a yes/no and did not invite hearsay; Nolan volunteered the extrajudicial statements	Not preserved; on the merits court would not find abuse of discretion in excluding the therapist’s statements; sustained objection proper
Whether the State waived objection by previously allowing similar testimony	Nolan: because similar testimony occurred without objection, State waived its hearsay objection	State: Nolan did not raise waiver at trial; no waiver occurred	Not preserved for appeal; waiver argument not presented below, so not considered
Whether exclusion of the testimony was reversible error (harmless error)	Nolan: exclusion deprived jury of relevant testimony and could have affected verdict	State: any error was harmless given the record and other evidence	Any error, if existent, was harmless; judgment affirmed

In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (abuse-of-discretion standard for evidentiary rulings)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (trial court abuses discretion when acting without regard to guiding rules)
Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608 (Tex. 2000) (reversal for evidentiary error requires showing the judgment probably turned on the excluded evidence)
In re Commitment of Anderson, 392 S.W.3d 878 (Tex. App.—Beaumont 2013) (preservation rules for appellate review of evidentiary objections)
Wohlfahrt v. Holloway, 172 S.W.3d 630 (Tex. App.—Houston [14th Dist.] 2005) (appellate argument must comport with trial argument to be preserved)
In re Commitment of Day, 342 S.W.3d 193 (Tex. App.—Beaumont 2011) (offer of proof required to preserve exclusion of testimony for appellate review)