Background
The State petitioned to civilly commit Wesley Wayne Gee as a sexually violent predator. Gee testified that he had sexually abused a seven-year-old boy, resulting in a conviction and six-year prison sentence. A forensic psychologist testified that, after Gee’s release, he sexually assaulted a three-year-old girl and was convicted of aggravated sexual assault of a child and sentenced to twenty years in prison. The psychologist diagnosed Gee with pedophilic disorder and opined that he had a behavioral abnormality making him likely to engage in a predatory act of sexual violence.
During closing argument, Gee’s attorney told the jury that the case was not about whether it was safe for Gee to walk through a grocery store. The State later asked jurors to imagine seeing Gee alone with a young child in a store and to consider whether they would walk away. The trial court overruled Gee’s objection that the argument was improper. The jury unanimously found beyond a reasonable doubt that Gee was a sexually violent predator, and the trial court entered a commitment order. Gee appealed only the ruling on his closing-argument objection and did not challenge the sufficiency of the evidence.
The Court’s Holding
The Sixth Court of Appeals affirmed, holding that the trial court did not abuse its discretion by overruling Gee’s objection. Although asking jurors to place themselves in a litigant’s position is generally improper, the State did not ask the jurors to put themselves in the shoes of either party. Instead, it asked them to consider whether a child would be safe if left alone with Gee.
The court concluded that the question directly addressed Gee’s likelihood of committing another predatory act of sexual violence, a disputed statutory element the jury was required to decide. In light of the evidence and Gee’s own grocery-store argument, the State’s statement was a permissible comment on the evidence and the issue before the jury.
Key Takeaways
- A prosecutor may ask jurors in a sexually violent predator proceeding to consider whether children encountered by the respondent would be safe when that consideration bears directly on the statutory likelihood-of-reoffending element.
- The challenged argument was not an improper request for jurors to place themselves in a party’s position because it focused on the risk to another child.
- Gee challenged only the closing argument; he did not contest the sufficiency of the evidence supporting the jury’s sexually violent predator finding.
Why It Matters
The decision distinguishes an impermissible “put yourself in the party’s shoes” appeal from an argument asking jurors to evaluate risk to potential victims. In Texas sexually violent predator cases, a concrete hypothetical about a respondent’s interaction with children may be permissible when it is grounded in the evidence and directed to the statutory question of whether a behavioral abnormality makes the respondent likely to engage in predatory sexual violence.