                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00131-CV
                           ____________________


           IN RE COMMITMENT OF STEVEN RENE ALVAREZ

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-07-07340 CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Steven Rene Alvarez appeals from a judgment in a civil commitment case in

which the jury found him to be a sexually violent predator. See Tex. Health &

Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2015) (the SVP statute).

In five issues, Alvarez argues that (1) the judge who conducted the recusal hearing

committed error by denying his motion to recuse; (2) the trial court erred by

denying Alvarez’s motion to set aside an order authorizing the release of his

substance abuse treatment records; (3) the trial court erred by overruling Alvarez’s

objection to testimony that he claims amounted to a comment on his truthfulness;

                                         1
(4) the trial court erred by admitting adjudications in Alvarez’s juvenile cases

when the documents related to the adjudications were not properly authenticated;

and (5) the trial court erred by allowing the jury, in determining whether Alvarez

currently has a behavioral abnormality, to consider the documents that he argues

were inadmissible and that related to his juvenile adjudications. We conclude that

Alvarez’s issues are either without merit, or that Alvarez has not established the

rulings were harmful given that substantially all of the information about his

juvenile history was admitted through the testimony of the expert witnesses who

testified in his case. Therefore, we affirm the trial court’s judgment, and its order

of civil commitment.

                            Denial of Motion to Recuse

      Prior to trial, Alvarez filed a motion to recuse Judge Michael T. Seiler, the

judge who subsequently presided over the jury proceeding that Alvarez seeks to

overturn in his appeal. In his motion, Alvarez claimed that, given Judge Seiler’s

recusal in another civil commitment proceeding against another individual, Judge

Seiler should be recused because his impartiality might reasonably be questioned.

See generally Tex. R. Civ. P. 18b(b)(1) (providing that a judge must be recused in

any proceeding in which “the judge’s impartiality might reasonably be

questioned”). During the recusal hearing, Alvarez argued that Judge Seiler “has a

                                         2
personal bias or prejudice, against the subject matter in this case, based upon the

nature of [Alvarez’s] criminal history.” See generally Tex. R. Civ. P. 18b(b)(2)

(requiring a judge to be recused in any proceeding in which “the judge has a

personal bias or prejudice concerning the subject matter or a party”).

      After Alvarez filed his motion, Judge Seiler referred the motion to the

presiding administrative judge for the Second Administrative Judicial Region. See

Tex. R. Civ. P. 18a(f)(2)(A) (providing for the duties of the judge in responding to

the filing of a motion to recuse). The administrative judge assigned Judge Chap

Cain to hear Alvarez’s motion, and Judge Cain conducted a joint hearing in a

group of four cases, including this one, on motions seeking Judge Seiler’s recusal.

At the conclusion of the joint hearing, Judge Cain denied all four of the motions.

      In his appeal, Alvarez argues that Judge Cain’s denial of his motion was an

abuse of discretion. See Tex. R. Civ. P. 18a(j)(1)(A) (mandating that an abuse-of-

discretion standard be used to review rulings on motion to recuse). Alvarez argues

that we should consider, de novo, whether Judge Seiler’s public comments required

his recusal in light of Judge Cain’s conclusion that Judge Seiler’s public comments

were insufficient to meet the requirements of Rule 18b(b)(1) and Rule 18b(b)(2),

which provide the standards that govern a judge’s recusal.




                                          3
      A decision by a judge to deny a motion to recuse is reviewed using an abuse-

of-discretion standard. Tex. R. Civ. P. 18a(j)(1)(A). In addition to the evidence that

was admitted during the recusal hearing, Alvarez suggests that we consider a State

Commission on Judicial Conduct decision that concerned Judge Seiler’s conduct.

See State Comm’n on Judicial Conduct, Public Reprimand and Order of

Additional Education, CJC Nos. 12-0737-DI; 12-1143-DI; 13-0027-DI; 13-0235-

DI; 13-0373-DI; 15-0129-DI; 15-0374 (April 24, 2015). We will not consider this

decision or any other evidence not admitted in the hearing in our review because

an appeal from a recusal ruling is limited to the record that the parties created at

the hearing. In re Commitment of Terry, No. 09-15-00053-CV, 2015 WL 5262186,

at *3 (Tex. App.—Beaumont Sept. 10, 2015, pet. denied) (mem. op.).

      On appeal, Alvarez argues that Judge Cain abused his discretion by parsing

the evidence and examining each piece of evidence individually in reaching his

conclusions regarding the impact of Judge Seiler’s various statements that Alvarez

contends revealed his disqualifying bias. Alvarez suggests that Judge Cain should

have determined whether Judge Seiler was biased from a studied analysis of all of

the circumstances as a whole.

      However, the record does not show that Judge Cain failed to consider the

evidence presented during the hearing as a whole. See In re Commitment of

                                          4
McCall, No. 09-15-00094-CV, 2016 WL 4040122, at *4 (Tex. App.—Beaumont

July 28, 2016, no pet. h.). Instead, the record reflects that before ruling on

Alvarez’s motion, Judge Cain discussed each of the exhibits that had been admitted

into evidence. The comments that Judge Cain made during the hearing reflect a

detailed and studied evaluation about why Judge Cain thought that Judge Seiler’s

public statements would not impact the public’s perception regarding Judge

Seiler’s ability to act fairly in the four cases that were the subject of the combined

hearing. While a number of Judge Cain’s comments were directed at individual

statements made by Judge Seiler, it is apparent that Judge Cain was attempting to

explain why the comments individually and collectively did not show that Judge

Seiler would not be able to preside in a fair manner over the four cases that were

the subject of the recusal hearing. Given the record as a whole, we are not

persuaded that Judge Cain failed to apply the proper legal standard in evaluating

the evidence that was before him in the recusal hearing.

      Alvarez also argues that Judge Cain erred by denying his motion to recuse.

To carry his burden at the hearing, Alvarez was required to demonstrate that

      a reasonable person, with knowledge of the circumstances, would
      harbor doubts as to the impartiality of the trial judge, and that the bias
      is of such a nature and extent that allowing the judge to serve would
      deny the movant’s right to receive due process of law.


                                          5
In re Commitment of Winkle, 434 S.W.3d 300, 311 (Tex. App.—Beaumont 2014,

pet. denied). In reviewing an order on a motion to recuse, we will affirm the

recusal judge’s ruling if it falls within the zone of reasonable disagreement. Id.

      In his motion, Alvarez relied on various comments that Judge Seiler made at

a March 2013 meeting of the Texas Patriots PAC, a September 2011 newspaper

account of a speech that Judge Seiler gave at a meeting of the Montgomery County

Republican Women, a slogan on a sign that Judge Seiler used in his 2008

campaign for office as a district judge on the 435th District Court, a newspaper

article published in November 2011 announcing Judge Seiler’s intent to seek re-

election, various campaign material from Judge Seiler’s 2008 campaign that

included information about why Judge Seiler believed he was the best qualified

candidate for the job, and evidence reflecting that motions to recuse Judge Seiler in

other cases, which involved SVP defendants other than Alvarez, were granted.

Judge Cain’s comments during the recusal hearing reflect that he considered many

of Judge Seiler’s statements about his experience as the types of statements

candidates typically make when running for elective office. During the hearing,

Judge Cain explained that judicial candidates may contrast their experience with

that of their opponents, and Judge Cain generally referenced Judge Seiler’s

statements as matters that consisted of “political speech.” As to the statements that

                                          6
Judge Seiler made while running for office, Judge Cain’s view that Judge Seiler’s

public statements would not be viewed by the public as Judge Seiler’s promise to

act as a prosecutor, if elected, is a reasonable view of the statements given the

context in which they were made. See In re Winkle, 434 S.W.3d at 312 (with

respect to a campaign sign used by Judge Seiler, concluding that the judge who

held that hearing on a motion to recuse had not abused her discretion by refusing

the claim that the language used in the sign represented the candidate’s “promise to

act in a biased manner in deciding cases assigned to the court, or to act in a biased

manner regarding any individual case”).

      We have previously rejected similar arguments about the same statements

made by Judge Seiler in other appeals complaining about the denial of motions

seeking Judge Seiler’s recusal. See McCall, 2016 WL 4040122, at *3; In re

Commitment of Lewis, ____ S.W. ____, No. 09-15-00360-CV, 2016 WL 2766069,

at *1 (Tex. App.—Beaumont May 12, 2016, pet. filed); In re Commitment of

Massingill, No. 09-15-00365-CV, 2016 WL 2594720, at *1 (Tex. App.—

Beaumont May 5, 2016, pet. filed) (mem. op.); In re Commitment of Dupree, No.

09-15-00269-CV, 2016 WL 1600763, at *2 (Tex. App.—Beaumont April 21,

2016, pet. filed) (mem. op; ); Terry, 2015 WL 5262186, at *2. The arguments that

Alvarez advances fail for the same reason: the recusal judge’s ruling falls within

                                          7
the zone of reasonable disagreement regarding the import of the statements that

Judge Seiler was shown to have made that were admitted into evidence during the

hearing. As a factual issue or a matter committed to the recusal judge’s

discretion—what members of the public would reasonably believe about a judge’s

bias, prejudice, or ability to be impartial based on the facts and circumstances

relevant to the judge’s conduct—the appeals court cannot disturb the decision

made by the judge that heard the motion to recuse unless the decision on the

motion is shown to have been arbitrary and unreasonable. McCall, 2016 WL

4040122, at *4. Because Alvarez has not shown that Judge Cain’s decision on the

motion to recuse was either arbitrary or unreasonable, issue one is overruled.

                 Denial of Motion to Exclude Treatment Records

      “[O]n its own motion and pursuant to 42 C.F.R. § 2.65[,]” Judge Seiler

ordered the custodian of the Rehabilitation Programs Division of the Texas

Department of Criminal Justice to release Alvarez’s substance-abuse-treatment

records to the Civil Division of the Special Prosecution Unit. Alvarez filed a pre-

trial motion asking that Judge Seiler set aside the order authorizing the release of

his substance-abuse-treatment records, and he asked that Judge Seiler exclude the

records from evidence in his trial. In response, the State argued that Judge Seiler

was authorized to order the subject records released based on subsections

                                         8
841.142(d) and 841.142(e) of the Texas Health and Safety Code. See generally

Tex. Health & Safety Code Ann. § 841.142 (West Supp. 2015). Several days

before trial, the trial court denied Alvarez’s motion.

      The testimony the jury heard during Alvarez’s trial suggests that the expert

witnesses who testified had reviewed prison records that referenced Alvarez’s

problem of substance abuse. For instance, the record of the trial includes testimony

indicating that Alvarez first tried marijuana at age eight, he used codeine without a

lawful prescription, he tested positive for using drugs while he was on community

supervision, and he received drug treatment while on community supervision. The

State’s expert witness, Dr. David Self, testified that Alvarez’s records indicated

that Alvarez had been exposed to marijuana in his childhood, and Dr. Self stated

that in his opinion, Alvarez has a lifelong pattern of abusing illicit substances.

Moreover, the appellate record contains no evidence indicating that Alvarez’s

substance-abuse-treatment records were obtained by the Special Prosecution Unit

from the Texas Department of Criminal Justice based on the trial court’s order, as

they may have been released to the attorneys under some other statute, such as

section 841.142 of the Texas Health and Safety Code. See id. We conclude that

Alvarez has failed to demonstrate that the trial court’s refusal to rescind its order




                                          9
regarding his substance-abuse-treatment records probably caused the jury to render

an improper judgment. See Tex. R. App. P. 44.1(a)(1). We overrule issue two.

                            Expert Opinion Testimony

      During the trial, Dr. Self testified that Alvarez gave him different accounts

concerning the background of one of his sexual offenses. When Dr. Self indicated

that the variance in Alvarez’s account regarding the offense was significant,

Alvarez objected, complaining that Dr. Self’s response represented “an improper

comment on the truthfulness of another person.” Subsequently, Dr. Self added,

without objection, that the conflict raised in his mind the “possibility of a

conflation of events, I mean, that there may have been more than one occasion in

which this sort of thing happened and that he tells it differently.” Even later, Dr.

Self explained that Alvarez had not shared the thoughts that Alvarez had regarding

his prior offense, a circumstance that Dr. Self believed was important in his

evaluation of the extent to which Alvarez could control his condition.

      In his appeal, Alvarez argues that Dr. Self’s testimony regarding Alvarez’s

truthfulness was not admissible as expert testimony. Compare Tex. R. Evid. 702

(An expert witness “may testify in the form of an opinion or otherwise if the

expert’s scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue.”) with Yount v.

                                         10
State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993) (“Rule 702 does not permit an

expert to give an opinion that the complainant or class of persons to which the

complainant belongs is truthful.”). But, we have previously explained that

      [W]here the expert’s testimony concerns a mental condition, the
      understanding of which is beyond the comprehension and
      understanding of the average person, it does not invade the province
      of the jury for the expert to use the facts and the defendant’s relation
      to them in pursuing and determining the medical diagnosis and
      explaining that diagnosis to the jury.

In re Commitment of Pettis, No. 09-15-00173-CV, 2016 WL 3356569, at *2 (Tex.

App.—Beaumont June 16, 2016, no pet. h.) (mem. op.). In this case, Dr. Self’s

testimony concerns his explanation of the role that the inconsistency in Alvarez’s

account had on his opinions. Given the context of Dr. Self’s testimony, the trial

court did not abuse its discretion by ruling that the testimony would be helpful to

the jury’s understanding of Dr. Self’s testimony. See Tex. R. Evid. 702. Issue three

is overruled.

                        Authentication of Juvenile Records

      In issue four, Alvarez complains the trial court erred in admitting into

evidence various records that related to matters that occurred when Alvarez was a

juvenile. During a pretrial hearing, records that the trial court preadmitted included

various judgments in cases filed against Alvarez when he was a juvenile. During

the pretrial hearing, Alvarez objected that the documents evidencing his
                                         11
adjudications as a juvenile were not properly authenticated. In response, the State

argued that the documents included proper certifications, although it is apparent

from the record before us in the appeal that the State and the trial court were

looking at copies of documents in the clerk’s records, as those are the documents

that contain the certifications that the parties were discussing in the hearing. See

generally Tex. R. Evid. 902(4). During the pretrial hearing, Alvarez admitted that

some of the documents contained the district clerk’s certification. At that point,

Alvarez’s argument changed, and he claimed that in addition to the district clerk’s

certification, authenticating the records required the State to produce a business

records affidavit to prove that the documents were business records. See Tex. R.

Evid. 902(10) (allowing a business record to be admitted as a self-authentication

document when accompanied by an affidavit that is in the form identified in the

rule).

         In the appeal, Alvarez argues the exhibits containing his juvenile records did

not include a proper certification by the clerk indicating they were true and correct

copies of records from the clerk’s file. However, even if we assume the trial court

erred in admitting the juvenile adjudications that did not have a certification by the

district clerk into evidence, those records were merely cumulative of other

testimony that revealed the offenses Alvarez committed when he was a juvenile.

                                           12
For example, Dr. Self testified in the trial without objection that: (1) he examined

Alvarez’s juvenile records; (2) that he relied on the information in the records in

forming his opinion in the case; (3) that Alvarez’s juvenile history included a

robbery, a burglary of a habitation, and a burglary of a motor vehicle; and (4) that

Alvarez was placed on probation and placed in a treatment-center-like environment

on two occasions, and placed in a juvenile incarceration facility before being

paroled. In summary, the records that Alvarez complains about on appeal are

consistent with the information the jury heard regarding Alvarez’s history of

committing a variety of offenses while he was a juvenile. Since substantially

similar evidence regarding Alvarez’s juvenile history was admitted without

objection during the trial, we hold the errors, if any, in admitting the adjudications

themselves were harmless. See Tex. R. App. P. 44.1(a)(1). We overrule issue four.

                     Impeachment with Juvenile Adjudications

      In issue five, Alvarez contends that his juvenile records were improperly

used as impeachment evidence in violation of Rule 609(d) of the Texas Rules of

Evidence. Rule 609(d) generally prohibits the use of juvenile adjudications in civil

cases. See Tex. R. Evid. 609(d). In response, the State argues that the records were

admissible for a proper purpose other than impeachment, contending that the

records were relevant to proving that Alvarez has a behavioral abnormality. In the

                                         13
pretrial hearing, the State represented that it would not use the records of the

juvenile proceedings as impeachment evidence.

      During the trial, when the State questioned Alvarez, the State’s attorney

asked Alvarez questions about his criminal history as a juvenile. Alvarez objected

that the State was improperly questioning Alvarez about his juvenile history to

impeach him. Given the information the trial court was given in the pretrial hearing

about the relevance of Alvarez’s juvenile history to the diagnosis that the State

intended to elicit from its expert, Dr. Self, the trial court overruled the objection,

advising Alvarez to renew his objection if Dr. Self failed to connect the testimony

to his opinions in the case. When the State’s attorney asked Alvarez about his

juvenile history, Alvarez did not request that the court give the jury a limiting

instruction to restrict the jury from using the evidence to impeach Alvarez’s

credibility as a witness. See Tex. R. Evid. 105(b)(1); Tex. R. Evid. 705(d).

      According to Alvarez, because he took the stand, his credibility was

inherently at issue and the State attacked it by asking him about his juvenile record.

Alvarez suggests that the facts surrounding the conduct disorder that he had when

he was a juvenile were not probative of whether he currently has a behavioral

abnormality, and he suggests that the evidence about his criminal behavior while a




                                         14
juvenile led the jury to commit him based on his record of bad conduct as a

juvenile.

      The record in this case shows that the experts who testified on the issue of

whether Alvarez has a behavioral abnormality considered Alvarez’s juvenile

history in forming their opinions. See generally Tex. R. Evid. 702-705. For

example, Dr. Self testified that lifestyle instability and criminality is one of the

factors he considers in assessing a person’s risk of committing new sexual

offenses. According to Dr. Self, early onset of criminal behavior is a factor that

affects recidivism. Dr. Self explained that a history of juvenile delinquency is a

risk factor to be regarded in assessing a person’s risk of reoffending, explaining

that bad behavior before a person is fifteen years old is indicative of a condition

that he identified as a conduct disorder. Dr. Self explained that Alvarez had been

diagnosed with having a conduct disorder in his youth. Dr. Self also diagnosed

Alvarez with antisocial personality disorder, another factor that he indicated that

research showed resulted in an increase in the risk of recidivism. According to Dr.

Self, Alvarez’s history showed Alvarez has disorders that had historically caused

him to habitually violate the rights of others due to his inability to conform his

behavior to ordinary standards.




                                        15
      Dr. Marisa Mauro, a psychologist called by Alvarez, used an actuarial

approach in assessing risk in Alvarez’s civil commitment case. According to Dr.

Mauro, a diagnosis of antisocial personality disorder in an adult requires that the

adult have a history indicating signs of conduct disorder prior to age fifteen. In

cross-examination by the State, Dr. Mauro agreed that Alvarez has a juvenile court

adjudication for robbery, that juvenile adjudications count in scoring actuarial

instruments that measure risk of recidivism, and that because Alvarez had multiple

juvenile adjudications, she should have scored him differently on two of the

actuarial tests that he took, the Static 99R and the Static 2002R.

      When evidence that a party tenders can be properly considered only for a

limited purpose, but it is inadmissible for other purposes, the party opposing the

introduction of the evidence has the burden of securing a limiting instruction so the

jury will not consider the evidence improperly for the wrong purpose. Larson v.

Cactus Util. Co., 730 S.W.2d 640, 642 (Tex. 1987). In Alvarez’s case, Alvarez’s

juvenile adjudications could not properly be used as impeachment evidence. See

Tex. R. Evid. 609(d). Nonetheless, the experts properly relied on Alvarez’s

juvenile cases in forming their opinions, and the testimony admitted in the trial

indicates that those cases were relevant to the opinions expressed by both of the

experts who testified during the trial. See Tex. R. Evid. 702-705. Alvarez did not

                                          16
request an instruction that the juvenile adjudications should not be considered

when the jury assessed the credibility of Alvarez’s testimony. See Tex. R. Evid.

105(a).

      In closing argument, the State did not suggest that Alvarez was not a

credible witness because he had engaged in delinquent behavior as a youth.

Instead, the State confined its closing remarks about the juvenile adjudications at

issue to the purposes for which the adjudications had properly been admitted. See

Tex. R. Evid. 105(b)(1). In the absence of Alvarez having requested a limiting

instruction, and assuming without deciding that Alvarez did not waive his

objection to the State asking Alvarez about his juvenile history, the alleged error

was not harmful when substantially all of the matters relevant to the juvenile

adjudications were addressed by the experts during the course of the trial. See Tex.

R. App. P. 44.1(a)(1). We overrule issue five. Having overruled all of Alvarez’s

issues, we affirm the trial court’s judgment and order of civil commitment.

      AFFIRMED.
                                     ________________________________
                                                  HOLLIS HORTON
                                                        Justice


Submitted on December 4, 2015
Opinion Delivered August 25, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.
                                        17
