Court of Appeals of Texas, Ninth District, Beaumont
Submitted on December 13, 2013
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-08-08666-CV
Before Kreger, Horton, and Johnson, JJ.
LEANNE JOHNSON Justice
A jury found appellant Fredrick Robert King Jr. ("King") to be a sexually violent predator, and the trial court rendered a final judgment with an order of civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001-841.151 (West 2010 & Supp. 2013) ("SVP" statute). As defined by the Legislature, a sexually violent predator is a person who "(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 Supp. 2013).
King was convicted of two separate offenses of indecency with two children. There is also evidence in the record that King admitted to a counselor that he sexually assaulted possibly more than ten but less than twenty children, although his statements to the counselor were at times inconsistent. Dr. Self, the State's expert, reviewed King's records which included references that King had multiple child victims. For his evaluation and analysis of King, Self reviewed the nature and details of the sexual offenses and a non-sexual criminal offense. Dr. Self concluded that King suffers from pedophilia, adult antisocial behavior, and alcohol problems, and that he has a behavioral abnormality.
On appeal, King raises three issues, each challenging the trial court's admission or exclusion of certain evidence during his trial. We conclude that King's issues are without merit, and we affirm the trial court's judgment.
Standard of Review and Preservation of Error
We review the admission or exclusion of evidence under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); In re Commitment of McCarty, No. 09-12-00083-CV, 2013 WL 3354556, at *2 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We will not reverse a judgment on the admission or exclusion of evidence unless the appellant establishes that the trial court's ruling was in error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See McCarty, 2013 WL 3354556, at *2; see also Tex. R. App. P. 44.1(a)(1).
To preserve error concerning evidentiary rulings, a party's objection must be timely, and it must specifically state the grounds on which the objection is based, if the grounds are not apparent from the context. Tex. R. Evid. 103(a)(1); Tex.R.App.P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). Even if preserved, the erroneous "admission or exclusion [of evidence] is likely harmless if the evidence was cumulative, or if the rest of the evidence was so onesided that the error likely made no difference." Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008) (footnote omitted).
1. Admission of Evidence Regarding Details of Prior Offenses
At trial, King objected to the admission of evidence regarding his prior offenses (charged and uncharged). See Tex. R. Evid. 403, 705. One of the State's experts, Dr. Self, testified about the details associated with those offenses, most of which related to sexual acts against children. Dr. Self explained to the jury how and why the underlying offenses and factual information assisted him in evaluating King and in determining whether King has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court overruled King's objections and determined that the testimony should be admitted as evidence showing the basis of Dr. Self's opinion. See Tex. R. Evid. 703, 705.
This Court has previously held that, under Rule 705(a) of the Texas Rules of Evidence, an expert may disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data, and may discuss the defendant's prior offenses as part of the basis of the expert's opinion. See, e.g., In re Commitment of Camarillo, No. 09-12-00304-CV, 2013 WL 2732662, at **3-4 (Tex. App.—Beaumont June 13, 2013, no pet.) (mem. op.); In re Commitment of Day, 342 S.W.3d 193, 197-98 (Tex. App.—Beaumont 2011, pet. denied). King acknowledges that Rule 705(a) permits experts ...