Court of Appeals of Texas, Twelfth District, Tyler
from the 3rd District Court of Anderson County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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.
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
first issue, Hebert argues that the trial court abused its
discretion in admitting his testimony that he engaged in
multiple homosexual relationships while incarcerated.
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.
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).
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.
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.
of Review and Governing Law
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.
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 ...