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In re Commitment of Hebert

Court of Appeals of Texas, Twelfth District, Tyler

April 10, 2019

IN RE COMMITMENT OF JUSTIN RAY HEBERT

          Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. DCCV17-263-3)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE, JUSTICE

         Justin Ray Hebert appeals his commitment following the trial court's adjudication that he is a sexually violent predator. In three issues, Hebert contends that the trial court abused its discretion in admitting irrelevant and unduly prejudicial evidence and the evidence is legally and factually insufficient to support the trial court's judgment. We affirm.

         BACKGROUND

         Hebert is an inmate, who currently is serving two ten-year sentences for indecency with a child by contact. On May 3, 2017, the State filed a petition seeking to have Hebert adjudicated a sexually violent predator and committed for treatment and supervision pursuant to Texas Health and Safety Code, Chapter 841. A jury found beyond a reasonable doubt that Hebert is a sexually violent predator. On that basis, the trial court entered a final judgment and order of civil commitment. Hebert filed a motion for new trial, which was denied. This appeal followed.

         ADMISSIBILITY OF EVIDENCE

         In his first issue, Hebert argues that the trial court abused its discretion in admitting his testimony that he engaged in multiple homosexual relationships while incarcerated.

         When reviewing a trial court's ruling on admissibility of evidence, we must uphold the trial court's decision absent an abuse of discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); McClellan v. Benson, 877 S.W.2d 454, 458 (Tex. App.-Houston [1st Dist.]1994, no writ). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Alvarado, 897 S.W.2d at 754.

         To preserve error for appellate review the complaining party must timely and specifically object to the evidence and obtain a ruling. See Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1). Error is waived if the complaining party allows the evidence to be introduced without objection. Bay Area Healthcare Grp. Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007). Additionally, any error in the admission of evidence is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Austin v. Weems, 337 S.W.3d 415, 421 (Tex. App.-Houston [1st Dist.] 2011, no pet.). Thus, a party fails to preserve error if it does not object to the same or similar evidence that is offered by the opposing party. See Marin v. IESI TX Corp., 317 S.W.3d 314, 324 (Tex. App.-Houston [1st Dist.] 2010, pet. filed).

         In the instant case, Hebert contends that the trial court erred by admitting, over his objection his testimony that he engaged in multiple homosexual relationships while incarcerated. However, subsequently, Dr. David Self testified as an expert on the State's behalf. During his testimony, Self testified that Hebert spoke to him about having sex in prison. He further testified that Hebert informed him that he had had seven sexual partners while in prison. Hebert offered no objection to Self's testimony on this topic. Therefore, because Hebert failed to object to Self's testimony on this subject, we hold that he failed to preserve error with regard to the trial court's overruling his objection to the same or similar testimony elicited from him by the State earlier in the proceedings. Hebert's first issue is overruled.

         EVIDENTIARY SUFFICIENCY

         In his second and third issues, Hebert argues that the evidence is neither legally nor factually sufficient to support the jury's finding that he is a sexually violent predator.

         Standard of Review and Governing Law

         In reviewing the legal sufficiency of the evidence supporting an appellant's civil commitment as a sexually violent predator, we use the same legal sufficiency standard that we use in criminal cases. In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.-Houston [1st Dist.] 2015, pet. denied). In so doing, we assess the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the statutory elements required for commitment beyond a reasonable doubt. Id.

         In reviewing the factual sufficiency of the evidence supporting an appellant's civil commitment as a sexually violent predator, we weigh all the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that would compel our ordering a new trial. See id. We will reverse only if we determine, after ...


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