                                    NO. 12-18-00207-CV

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

 IN RE                                              §      APPEAL FROM THE 3RD

 COMMITMENT OF                                      §      JUDICIAL DISTRICT COURT

 JUSTIN RAY HEBERT                                  §      ANDERSON COUNTY, TEXAS

                                    MEMORANDUM OPINION
       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




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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 weighing the
evidence, that the risk of injustice is too great to permit the verdict to stand. See id.
         To meet its burden of proof in a sexually violent predator civil commitment case, the State
must prove beyond a reasonable doubt that a person is a sexually violent predator. See TEX. HEALTH
& SAFETY CODE ANN. § 841.062 (West 2017). A person is considered a “sexually violent predator”
if he (1) is a repeat sexually violent offender, and (2) suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. Id. § 841.003(a) (West 2017). A
“behavioral abnormality” is defined as a congenital or acquired condition that, by affecting a
person’s emotional or volitional capacity, predisposes the person to commit a sexually violent
offense, to the extent that the person becomes a menace to the health and safety of another person.
Id. § 841.002(2) (West 2017). If, after a trial, a trial court or jury determines that a person is a
sexually violent predator, the judge must commit him for treatment and supervision. See id.
§ 841.081(a) (West 2017).
The Evidence at Trial
         In the instant case, Hebert testified that he currently is serving sentences on two convictions
for indecency with a child by contact.                The trial court admitted a judgment into evidence
demonstrating Hebert’s convictions for indecency. Therefore, the record reflects that Hebert is a
repeat sexually violent offender. See id. § 841.002(8)(A); TEX. PENAL CODE ANN. § 21.11(a)(1)
(West Supp. 2018) (indecency with child by contact is sexually violent offense).
         Self testified that he is a medical doctor who is specialty trained in psychiatry and
subspecialty trained in forensic psychiatry. He also testified that he is board certified in general
psychiatry and has practiced forensic psychiatry for over twenty years. Self discussed the legal
definition of “behavioral abnormality”1 and explained his understandings of its components. He
stated that he has conducted evaluations for behavioral abnormalities since 1999, and estimated that


         1
          Self described it as a “[c]ongenital or acquired condition that by virtue of affecting a person’s volitional or
emotional capacity, predisposes them to commit acts of sexual violence to the extent that they put other people at risk.”


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he has performed between eighty and one hundred such evaluations. Self further stated that he used
a standard methodology for medical inquiries because there is no specific test for a behavioral
abnormality. Self testified that he reviewed records pertaining to Hebert and met with him in
person. Ultimately, he based his opinion about Hebert on certain risk factors.
       History of Prior Sexually Violent Crimes
       Self discussed his review of Hebert’s records as they pertained to past offenses he
committed. Self noted that Hebert was placed on probation for committing an offense against a
four-year-old girl by penetrating her vagina with his finger when he was eleven-years-old. He
further noted that Herbert later committed an offense against a four-year-old boy and again was
placed on probation. Self described Hebert’s recounting of this offense as “glib” and lacking in
empathy and remorse. He testified that people like Hebert, who lack empathy and remorse, are
more likely to commit bad acts.
       Self also noted that at eighteen years of age, Hebert committed an offense against his five-
year-old stepsister. Self stated that, according to the records he reviewed, there were multiple
occasions when Hebert attempted to penetrate his stepsister while simulating sexual intercourse.
Specifically, Hebert told Self that the two of them were playing house and he could not penetrate
her vagina or anus because they were too small.
       Based on Hebert’s history of offenses, Self identified the following risk factors: (1) sexual
deviance; (2) victims of young ages; (3) victims who are both male and female; (4) victims who
were strangers; (5) being tolerant of sexual assaults; (6) using force and a weapon; and (7) beginning
to commit offenses at such a young age. Self stated that selecting a stranger to victimize speaks of
an inability to control behavior. He further stated that the earlier a person begins committing
offenses, the greater the risk is that that person will reoffend. With regard to Hebert, Self testified
that having both male and female victims gives him a very large pool of victims from which to
choose, which further increases his risk for reoffending. He also testified that Hebert’s current
attitude about his past crimes shows that he has no shame or remorse. Additionally, Self noted that
Hebert regrets going to prison, but does not regret committing the offenses.
       Lifestyle Instability
       Self testified that another major risk factor is an antisocial orientation. Self further testified
that Hebert has limited intellect, no job experience, and no support system. He noted that Hebert’s
criminality is confined to sexual offenses. But, according to Self’s testimony, the earlier a person



                                                   4
begins to break rules, the more likely that person is to continue breaking them for the rest of his life.
Self noted that Hebert twice was adjudicated delinquent in the juvenile system. Self further noted
that Hebert’s antisocial traits and borderline personality traits are among his risk factors.
        IQ and Age Correlation with Reoffending
        Self also discussed the fact that Hebert’s low IQ categorizes him just above what once was
referred to as mentally retarded. According to Self, Hebert’s low IQ adds to his inability to cope
with stress and is a clear risk factor for his reoffending.
        Self explained that reoffending after treatment is a significant risk factor, as is persistent bad
behavior after punishment. Self noted that Hebert reoffended twice after punishment and once after
treatment. Thus, Self opined that Hebert’s reoffending demonstrates his inability to control his
behavior. Indeed, Hebert expressed concern about his reoffending.
        Self also noted that Hebert is twenty-eight-years-old. His age, according to Self, places him
at a peak time sexually and aggressively. He noted that pedophiles who like little boys are the most
likely to offend the longest.
        Lack of Protective Factors
        Self testified that protective factors generally include successful treatment, insight, remorse,
employability, and social support. Self also testified that Hebert has no such protective factors. Self
stated that Hebert definitely needs sex offender treatment, but it will be difficult because of his low
intellect.
        Pedophilia
        Using the Diagnostic and Statistical Manual, Self diagnosed Hebert with pedophilic
disorder. According to Self, Hebert is attracted to males and females and has recurrent sexual urges,
fantasies, or attraction to prepubescent children, which Hebert has experienced for years. Self stated
that Hebert’s sexual criminal history is evidence of his disorder. Self further stated that Hebert
admitted to him that he has some attraction to children. Self testified that Hebert said he used to
masturbate to thoughts of children, but had not done so since 2014. However, Self also testified
that Hebert stated he still is sexually attracted to children and adults.
        Self stated that pedophilic disorder is a chronic, lifelong condition. He explained that it is a
congenital or acquired condition, which has affected Hebert’s emotional and volitional capacity to
the degree that he has serious difficulty controlling his behaviors. Self noted that Hebert repeatedly




                                                    5
reoffended, even after he was caught, was punished, and received treatment. Self opined that Hebert
always will be sexually attracted to children.
       Self testified that Hebert is sexually preoccupied. He noted that Hebert stated that he
masturbated five times per day. Self further testified that even though it is against prison rules to
have a sexual relationship, Hebert has had seven sexual partners while incarcerated. Self explained
that sex is Hebert’s coping mechanism when he becomes bored. He concluded that Hebert “can’t
abstain from sexual behavior[.]”
       Personality Disorder
       Self stated that Hebert has a nonspecific personality disorder. He elaborated that Hebert has
antisocial traits, but those traits do not rise to the level that would support his being diagnosed with
an antisocial personality disorder. Self also described Hebert as having traits of a borderline
personality such as rage, self-harm, and an unstable identity. Self noted that in 2015, Hebert carved
the letters “FTW” into his thigh.2
       High Risk to Reoffend
       Hebert was given an actuarial test called “Static-99R.” This test takes into account historical
facts, which have been determined to be risk factors for reoffending sexually. Self testified that
Hebert scored a 6, which places him in the high-risk group of offenders. According to Self, Hebert’s
score indicates that he is three times more likely to reoffend than the typical sex offender who has
been released from prison. But Self noted that Hebert’s score does not mean that he has a behavioral
abnormality. Nonetheless, based on his review of the information in his possession, Self agreed
that the risk of Hebert’s reoffending is high.
       Behavioral Abnormality
       Ultimately, Self testified that based on his training, experience, and the methodology he
employed, it is his expert opinion to a reasonable degree of medical certainty that Hebert has a
behavioral abnormality, which makes him likely to engage in a predatory act of sexual violence.
Self elaborated that Hebert’s sexual deviance and his antisocial lifestyle form his behavioral
abnormality.
Discussion
       Hebert argues, among other things, that the evidence establishes that he is not a psychopath.
However, a person’s psychopathy is not a requisite finding that must be made in support of his


       2
           According to Self, “FTW” is an acronym for “F*ck the World.”


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commitment as a sexually violent predator. See In re Commitment of H.L.T., 549 S.W.3d 656,
660 (Tex. App.–Waco 2017, pet. denied) (“The only part of the SVP statute that calls for
psychopathy testing is [S]ection 841.023(a), which applies only to the expert retained to assist TDCJ
in its determination of whether to refer the person to the attorney for the State”).
         Hebert further argues that his score on the Static-99R test is not indicative that he is at the
highest risk for reoffending. However, Self testified that Hebert’s score places him in the high-risk
group of offenders and he is three times more likely to reoffend than the typical sex offender who
has been released from prison. See, e.g., In re Commitment of Harris, 541 S.W.3d 322, 326 (Tex.
App.–Houston [14th Dist.] 2017, no pet.) (evidence supported finding that the appellant is sexually
violent predator in spite of low score on Static-99R test).
Summation
         After reviewing the evidence in the light most favorable to the verdict, we conclude that a
rational trier of fact could find the statutory elements required for commitment beyond a reasonable
doubt. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.002(2), 841.003(a); Stuteville, 463 S.W.3d
at 551. We further conclude, after weighing all the evidence, that the risk of injustice is not too
great to allow the verdict in this case to stand. See Stuteville, 463 S.W.3d at 551. Accordingly, we
hold that the evidence is legally and factually sufficient to support the trial court’s judgment.
Hebert’s second and third issues are overruled.


                                                   DISPOSITION
         Having overruled Hebert’s first, second, and third issues, we affirm the trial court’s
judgment.
                                                                    BRIAN HOYLE
                                                                       Justice


Opinion delivered April 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 10, 2019


                                         NO. 12-18-00207-CV


                     IN RE COMMITMENT OF JUSTIN RAY HEBERT


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

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
