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In re Commitment of Millar

Court of Appeals of Texas, Fifth District, Dallas

July 16, 2019

IN RE: THE COMMITMENT OF DONALD RAY MILLAR

          On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 84681.

          Before Justices Bridges, Brown, and Nowell

          MEMORANDUM OPINION

          David L. Bridges Justice.

         The State of Texas filed a petition to civilly commit Donald Ray Millar as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.150. A jury found Millar suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. Id. § 841.003(a). The trial court entered final judgment and an order of civil commitment. In a single issue, Millar argues the trial court erred in admitting evidence of unadjudicated offenses that formed the basis of the opinion of one of the State's experts. We affirm the trial court's judgment.

         In its petition filed in May 2017, the State alleged Millar was convicted of aggravated sexual assault in July 1988 and aggravated sexual assault of a child in July 1999. The petition stated Millar was incarcerated but set to discharge his sentence in February 2019. The petition alleged Millar suffers from a behavioral abnormality and is a sexually violent predator. Therefore, the State requested the court to commit Millar for treatment and supervision to be coordinated by the Texas Civil Commitment Office.

         At trial in February 2018, psychologist Dr. Timothy Proctor testified he met with Millar, evaluated him, and formed the opinion that Millar suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Proctor testified he discussed Millar's sexual offenses in a meeting with Millar, and these included two convictions of aggravated sexual assault of a child. At this point in the proceeding, defense counsel requested "the 705 objection and limine instruction." The trial court gave the jury a definition of hearsay and instructed the jury that, in general, "hearsay is not applicable as evidence during a trial." However, the trial court further instructed the jury as follows:

in this case, certain hearsay information contained in records, which were reviewed and relied on by the expert, and will be presented to you through expert testimony. Such hearsay testimony is being presented to you for the purpose of showing the basis of the expert's opinion, and cannot been [sic] considered to prove the truth of matter asserted. You may not consider this hearsay information for any other purpose, including the facts that are alleged in the records are true.

         Defense counsel requested, and was granted, a "running objection on that particular type of evidence."

         Proctor testified Millar ultimately pled guilty and was convicted of an October 31, 1987 sexual assault of an eight-year-old girl. Millar received a five-year probated sentence for this offense, but he violated his probation on another injury to a child charge in another county and spent eight months in prison. When Millar got out of prison, he "ended up fleeing the United States to Mexico" with a woman and her seven-year-old daughter. Millar had sexual intercourse with the daughter beginning when she was seven and continuing until she was thirteen. Millar was eventually caught and received a twenty-year prison sentence for his offenses against the daughter. Proctor testified he considers both adjudicated and unadjudicated offenses in evaluating sexual predators, and the unadjudicated offenses, while carrying less weight than convictions, "help give a broader picture." Proctor testified Millar had unadjudicated offenses, and Proctor considered those offenses in reaching his opinion about Millar.

         At this point in Proctor's testimony, defense counsel made a "403" objection, and a sidebar conference at the bench followed. Defense counsel argued "it is highly prejudicial," Millar had not been convicted of the offenses, and "the State has not proved them beyond a reasonable doubt." The prosecutor responded that the State did not have to prove the unadjudicated offenses beyond a reasonable doubt, and "[i]t's just our expert relying on these cases in forming his opinions." The trial court ruled that, "based on the case law that I've been presented, the information we've heard, the fact the expert relied on it to make his opinion," Millar's objection was overruled. Proctor testified Millar had unadjudicated offenses "[i]n terms of children, 6 up to 7, and also 4 adults." When asked if Millar admitted to any of the offenses, Proctor testified Millar admitted to an offense against his daughter from his first wife. At the conclusion of trial, the jury found that Millar is a sexually violent predator. The trial court entered final judgment and an order of civil commitment, and this appeal followed.

         In a single issue, Millar argues the trial court erred in admitting evidence of unadjudicated offenses that formed the basis of Proctor's opinion. Specifically, Millar argues evidence of unadjudicated offenses admitted as "basis" evidence under rule of evidence 705(d) "could only have been admitted for its truth for it to have had any evidentiary value making this evidence inadmissible hearsay."

         Initially, we note that Millar did not raise this objection either at trial or in his motion for new trial. Millar argued the evidence of unadjudicated offenses was admitted "[f]ollowing a 705 hearing," and Millar "argued the probative value is substantially outweighed by unfair prejudice and such testimony either confused or misled the jury." Because the record does not show Millar made a timely and specific objection to Proctor's testimony on the ground asserted on appeal, the argument is not preserved for appeal. Tex.R.App.P. 33.1(a); Dallas Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 40 (Tex. App.-Dallas 2012, pet. denied).

Moreover, the trial court included the following instruction in the jury charge:
Hearsay is a statement that: 1) the declarant does not make while testifying at the current trial or hearing and 2) a party offers in evidence to prove the truth of the matter asserted in the statement. Hearsay normally is not admissible. In this case, certain hearsay information contained in records reviewed by an expert or experts was admitted before you through expert testimony. Such hearsay was admitted only for the purpose of showing the basis ...

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