                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-15-00497-CV
                            ____________________

     IN RE COMMITMENT OF RICARDO RANGEL CARRISALEZ
_________________________________   ______________________

                On Appeal from the 435th District Court
                     Montgomery County, Texas
                   Trial Cause No. 15-05-05173-CV
____________________________________________                      ____________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit Ricardo Rangel Carrisalez as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2015). A jury found that Carrisalez is a sexually violent

predator, and the trial court rendered a final judgment and an order of civil

commitment. In two appellate issues, Carrisalez challenges the admission of

certain evidence regarding one of his child victims. We affirm the trial court’s

judgment and order of civil commitment.




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                                   BACKGROUND

        Before trial, Carrisalez’s counsel lodged a relevancy objection to any

testimony mentioning that one of Carrisalez’s victims suffered from a prolapsed

rectum because the victim did not accuse Carrisalez of an offense involving

penetration. Counsel contended that such evidence would “inflame the jury.” The

trial judge instructed counsel to not discuss such evidence during opening

statements, but noted that because the evidence was in the police records, “it’s

traditional hearsay which I often hear in relationship to the expert.”

        Psychiatrist Dr. Sheri Gaines testified that she was asked to testify regarding

whether Carrisalez has a behavioral abnormality, and she explained the statutory

meaning of the term “behavioral abnormality.” Gaines explained that she used the

standard methodology for forensic psychiatry cases in evaluating Carrisalez, and

that the methodology was in accordance with her training and the accepted

standards of forensic psychiatry. Gaines testified that she reviewed “hundreds of

pages     of   collateral   information[,]”       such   as   penitentiary   packets,   the

multidisciplinary report, police reports, Carrisalez’s deposition, and victim

statements, and she personally interviewed Carrisalez for approximately two hours

to form her opinion.



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      Gaines opined that Carrisalez has a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. She explained that she based

her opinion upon the fact that Carrisalez has deviant sexual interests and a poor

understanding of his condition, and she believes Carrisalez’s deviant sexual

interest remains unchanged. According to Gaines, Carrisalez’s deviant sexual

interests include “sexual thoughts, desires, behaviors, [and] actions towards

prepubescent girls and prepubescent boys.” Gaines explained that sexual deviance

“is one of the main risk factors for sexual recidivism.”

      Gaines testified that she diagnosed Carrisalez with pedophilic disorder, and

she explained that Carrisalez had offended against both a male child and a female

child. Gaines also diagnosed Carrisalez with cocaine use disorder and “alcohol use

disorder in remission in a controlled environment.” According to Gaines,

Carrisalez’s offenses are evidence of his sexual deviance. Gaines testified that,

during a period of over two months, Carrisalez offended against the female child

by touching her chest and anus, as well as by penetrating her vagina and anus with

his penis. Gaines testified that after being released from prison, Carrisalez offended

against a male child by grabbing the child’s “crotch area[.]” When asked whether

she saw any records indicating that the abuse of the male child might have been

more serious, defense counsel asked to approach the bench outside the jury’s

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hearing, and defense counsel indicated that the State was eliciting questions from

Gaines about the male child’s prolapsed rectum. Defense counsel objected, “This is

something the child never alleged Mr. Carrisalez did. . . . He definitely wasn’t

convicted of it. At this point, this is collaterally attacking the judgment and . . .

there’s absolutely no probative value. It’s not relevant and any probative value

would be substantially outweighed by the danger of unfair prejudice.” The trial

judge indicated that a predicate had not been laid and sustained the objection, and

the judge stated, “I’ll be able to rule on it when I have something that I know

about.”

      Gaines testified that when reviewing records regarding an individual, she

takes all available information into consideration because “there is oftentimes lots

of information that wasn’t charged, lots of information that wasn’t indicted,

especially in cases regarding sexual offenses.” Gaines explained that the records

included a statement from the male child victim’s mother that the victim suffered

from a prolapsed rectum. Carrisalez’s counsel obtained a running objection that

such evidence constituted a collateral attack on the judgment and violated Rule

403. Gaines then testified that the male child victim suffered from chlamydia and

post-traumatic stress disorder. Gaines explained that victims are often “reluctant to

outcry and disclose because of unwarranted self-shame, unwarranted self-

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accusation.” According to Gaines, she would have found that Carrisalez has a

behavioral abnormality even without the physical evidence regarding the male

victim. During cross-examination, Gaines testified that Carrisalez was convicted of

putting his hand over the male victim’s penis on top of his clothing, not penetrating

the male victim. Gaines explained that although discussing a child with a prolapsed

rectum and chlamydia is “[h]orrifying[,]” she testified about it because it is part of

the information she reviewed.

      According to Gaines, Carrisalez’s risk factors for recidivism include

multiple sex acts against his victims, the young age of his victims, the fact that he

has both male and female victims, the fact that the victims were unrelated to

Carrisalez, and the fact that Carrisalez re-offended after being caught the first time.

In addition, Gaines testified that Carrisalez’s nonsexual criminal history indicates

that he has some antisocial traits. Gaines also noted that there is no evidence that

Carrisalez has been cured of pedophilic disorder. Furthermore, Gaines testified that

Carrisalez has a poor understanding of what caused him to offend and that

Carrisalez blamed his offenses on alcohol. Gaines testified that the actuarial tests

performed on Carrisalez indicated a risk of reoffending that was almost four times

higher than the typical sex offender.



                                          5
      Carrisalez testified that he has two convictions for aggravated sexual assault

of a child and three convictions for indecency with a child by contact. Carrisalez

denied penetrating the female child victim and stated that he did not remember his

offense against the male child victim. Carrisalez also testified that he had been

arrested four times for driving while intoxicated.

                                CARRISALEZ’S ISSUES

      In his first issue, Carrisalez argues that the trial judge erred in overruling his

relevancy objection to evidence regarding the male child victim’s prolapsed

rectum. In his second issue, Carrisalez contends the trial judge erred by overruling

his Rule 403 objection regarding Gaines’s testimony that the male child victim

suffered from a prolapsed rectum, chlamydia, and post-traumatic stress disorder

because “the probative value of the evidence was minimal compared to the

prejudicial impact on the jury.” We address these issues together.

      “We review a trial court’s evidentiary rulings for abuse of discretion.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re

Commitment of Salazar, No. 09-07-345-CV, 2008 WL 4998273, at *2 (Tex.

App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A trial court abuses its

discretion when it acts without reference to any guiding rules and principles, or if it

acts arbitrarily and unreasonably. E.I. du Pont de Nemours & Co. v. Robinson, 923

                                          6
S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985). Error may not be predicated upon the admission of

evidence unless the party’s substantial rights are affected. Tex. R. Evid. 103(a). We

will not reverse a judgment based upon an error of law unless that error probably

caused the rendition of an improper judgment or probably prevented the appellant

from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a).

Excluding or admitting evidence is likely harmless if the evidence was cumulative

or the rest of the evidence was so one-sided that the error likely did not affect the

judgment. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.

2009).

      Assuming, without deciding, that the trial court abused its discretion by

admitting the testimony of which Carrisalez complains, we cannot say that

admission of the evidence caused the rendition of an improper judgment. The jury

heard Gaines testify regarding Carrisalez’s pedophilic disorder, cocaine use

disorder, and alcohol use disorder, as well as his antisocial traits and his risk of

recidivism. The jury heard evidence that Carrisalez has two convictions for

aggravated sexual assault of a child and three convictions for indecency with a

child by contact. The jury also heard evidence that Carrisalez was convicted of an

offense against the female child victim that involved penetration. The record does

                                         7
not indicate that the entire case turned on the complained-of evidence regarding the

male child victim. See Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 192

(Tex. App.—Corpus Christi 2002, no pet). Because we cannot conclude that any

error in the admission of the complained-of testimony caused the rendition of an

improper judgment, we overrule issues one and two and affirm the trial court’s

final judgment and order of civil commitment.

      AFFIRMED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on July 15, 2016
Opinion Delivered August 11, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.




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