                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00129-CV

                      IN RE THE COMMITMENT OF S.D.



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2016-1391-2


                          MEMORANDUM OPINION

      A jury found that Appellant Sylvester Dixon is a sexually violent predator, and the

trial court ordered Dixon civilly committed pursuant to the Civil Commitment of

Sexually Violent Predators Act (the SVP Act). See TEX. HEALTH & SAFETY CODE ANN. §§

841.003, 841.081. Dixon has appealed, contending in his sole issue that “[t]he trial court

committed reversible error by admitting evidence about [his] unadjudicated offenses.”

We will affirm.

                                      Background

      At Dixon’s civil-commitment trial, the State first offered, and the trial court

admitted as evidence, exhibits showing Dixon’s prior convictions for murder in 1972,

indecency with a child in 1980, indecency with a child in 1985, and indecency with a child
(habitual) in 1991. The State then called Dixon as its first witness. The State questioned

Dixon about the details of the 1972 murder. Dixon had pleaded guilty to the crime and

had been sentenced to thirty-five years’ imprisonment; however, Dixon acknowledged

that he had been released on parole in 1980. The State then questioned Dixon about the

details of the 1980 indecency-with-a-child offense. Dixon denied that he had committed

the crime; however, he acknowledged that he had pleaded guilty to the offense and that

he had been sent back to prison in 1980. Dixon had been sentenced to five years’

imprisonment for the 1980 indecency-with-a-child offense but had been released from

prison again in 1983.

          The State was thereafter questioning Dixon about whether he had committed

sexual offenses against C.D., the victim of the 1985 indecency-with-a-child offense, when

the State asked Dixon about whether he had also committed sexual offenses against W.,

C.D.’s brother. Dixon has never been convicted of committing any offense against W.,

and, at trial, Dixon denied having committed any offense against W. Dixon also denied

that he had committed any offense against C.D., but he stated that he had pleaded guilty

to the 1985 indecency-with-a-child offense1 and that he had been sent to prison for the

third time in 1985. Dixon had been sentenced to ten years’ imprisonment for the 1985

indecency-with-a-child offense but had been released again in 1988.

          The State then questioned Dixon about whether he had committed sexual offenses

against R. Like W., Dixon has never been convicted of committing any offense against




1   The trial court’s judgment indicates that Dixon actually pleaded nolo contendere.

In re Commitment of S.D.                                                                Page 2
R., and, at trial, Dixon denied having committed any offense against R. The State also

asked Dixon about whether he had committed sexual offenses against J. Like W. and R.,

Dixon has never been convicted of committing any offense against J., and, at trial, Dixon

denied having committed any offense against J. Dixon testified that he had, however,

remained in jail while the case regarding J. was pending.

       The State was thereafter questioning Dixon about whether he had committed

sexual offenses against A.B., the victim of the 1991 indecency-with-a-child offense, when

the State asked Dixon about whether he had also committed sexual offenses against L.,

A.B.’s sister. Like W., R., and J., Dixon has never been convicted of committing any

offense against L., and, at trial, Dixon denied having committed any offense against L.

Dixon also denied that he had committed any offense against A.B.; however, Dixon

admitted that he had pleaded guilty to the 1991 indecency-with-a-child offense, had been

sentenced to forty years’ imprisonment for the crime, and had returned to prison for the

fourth time in 1991.

       Dixon testified that while in prison for the fourth time, he had been in a sex-

offender treatment program for approximately sixteen months. Dixon stated that he had

then been released from prison again in May 2006, at which time he had moved into a

halfway house for about two years. Dixon said that he had participated in sex-offender

treatment at the halfway house as well. Dixon acknowledged, however, that his parole

had then been revoked and that he had been sent back to prison in May 2008. When the

State asked Dixon about whether his parole had been revoked because he had sexually

assaulted another resident in the halfway house, Dixon initially denied it, but, after

In re Commitment of S.D.                                                           Page 3
further questioning, Dixon acknowledged that he had committed a sexual offense against

another resident of the halfway house.

       Finally, at the time of his trial in January 2017, Dixon testified that he was set to be

released from prison again in early 2018. Dixon acknowledged that he was no longer in

sex-offender treatment. The State then asked Dixon, “But you do realize that you need

further help so you can avoid creating more victims?” Dixon replied, “Well, I don’t think

so, because when I - - because when I was out - - when I was out, I - - I didn’t mess

with no kids. I didn’t go around them.”

       After Dixon testified, the State called psychiatrist Dr. Michael Arambula as a

witness. Dr. Arambula testified that he was asked to evaluate Dixon to determine

whether Dixon has a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence.       Dr. Arambula explained that in conducting his

evaluation, he interviewed Dixon and also “looked at the investigative and legal records

associated with all of Mr. Dixon’s offenses,” including the investigative records for

offenses that did not lead to convictions. Based on his evaluation of Dixon and his review

of the records, Dr. Arambula opined that Dixon has a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. Dr. Arambula testified that the

clinical diagnosis that correlates to Dixon’s sexual deviance is pedophilia—a typically

chronic condition in which someone is sexually attracted to children and acts on his or

her urges and sexual preferences. Dr. Arambula further stated that he has also diagnosed

Dixon with a personality disorder with antisocial features.



In re Commitment of S.D.                                                                 Page 4
       Dr. Arambula then testified that the facts of each sexual offense were important in

helping him reach his opinion regarding Dixon. The State asserted that it therefore

wanted to ask Dr. Arambula about each of Dixon’s sexual convictions individually,

beginning with the 1980 indecency-with-a-child conviction. In response to the State’s

questioning, Dr. Arambula testified that the types of records that he reviewed and relied

upon with regard to the offense were investigative records, including statements taken

from the victim. When the State asked Dr. Arambula what the records said about the

offense, the following exchange took place:

                     [Dixon’s Counsel]: Objection, Your Honor. I’m going to
       object to hearsay. I’m also going to request - -

                      THE COURT: Overruled.

                   [Dixon’s Counsel]: Your Honor, I’m also going to request a
       running hearsay instruction regarding the information contained in Dr.
       Arambula’s records that he reviewed.

                      ....

                    THE COURT: Okay. I overrule the objection, give you a
       running objection.

                      [Dixon’s Counsel]: And may I request a limiting instruction?

                      THE COURT: Yes, you may.

                     Members of the Jury, hearsay is a statement the declarant does
       not make while testifying at the current trial and a party offers in evidence
       to prove the truth of the matter asserted in the statement. Generally,
       hearsay information is not admissible. Certain hearsay information
       contained in records reviewed by the expert may be admitted before you
       through the expert testimony. Such hearsay information is admitted only
       for the purpose of showing the basis of the expert’s opinion and to allow
       you to assess the weight and credibility of the expert’s opinion. However,


In re Commitment of S.D.                                                               Page 5
       this hearsay information cannot be considered as evidence to prove the
       truth of the matter asserted.

Dr. Arambula then testified about what the investigative records upon which he had

relied had said about the 1980 indecency-with-a-child offense, what Dixon had told him

about the 1980 indecency-with-a-child offense, and what significance Dixon’s

explanation of the offense had in light of the investigative records.

       The State then began questioning Dr. Arambula about Dixon’s 1985 indecency-

with-a-child conviction.   In response to the State’s questioning, Dr. Arambula first

explained the significance of the timing of this second sexual offense. Dr. Arambula then

stated that he had looked at the investigative records regarding the offense and that the

records indicated that there were two male victims in the case, C.D. and W. Like his

testimony regarding the 1980 indecency-with-a-child offense, Dr. Arambula thereafter

testified about what the investigative records upon which he had relied had said about

the 1985 indecency-with-a-child offense, what Dixon had told him about the 1985

indecency-with-a-child offense, and what significance Dixon’s explanation of the offense

had in light of the investigative records. Dr. Arambula’s testimony about the 1985

indecency-with-a-child offense also included testimony about an unadjudicated offense

that Dixon had allegedly committed against W.

       The State then questioned Dr. Arambula as follows:

              Q     Were there any other alleged victims that you read about from
       this same time period?

               A      Yes, ma’am.

               Q      And who was that?

In re Commitment of S.D.                                                            Page 6
                 A     Let’s see. There was another girl, uh, a 12 year old named
          “[A.S.];” somebody named “[R.],” who was five; and then [J.] who was
                   2

          nine.

               Q      And starting with [R.], what do the records indicated
          happened with her?

                       [Dixon’s Counsel]: Objection, Your Honor. Again, mention
          of these names, uh - - or alleged victims, these have not been substantiated.

                           THE COURT: Overruled.

                        THE WITNESS: The investigative records indicated that she
          complained that he, um, used two fingers to rub her bottom. He rubbed
          her privates and that it happened many times.

                       [Dixon’s Counsel]: Objection, Your Honor. Um, may I also
          request a running objection under 403?

                           THE COURT: I grant you a running objection.

                Q     (BY [State’s Counsel]) Now, as far as, uh, [W.] and [R.] goes,
          Mr. Dixon was not convicted of offending against them; is that right?

                   A       That’s correct.

                Q     Uh, but do you still take that information into account
          regarding your evaluation?

                   A    Well, I don’t disregard it. I don’t attach as much weight if
          somebody had not been convicted of it, uh, but I still - - it’s still there. And
          so it’s important to consider everything in a medical evaluation.

          The State then questioned Dr. Arambula about Dixon’s 1991 indecency-with-a-

child conviction. In response to the State’s questioning, Dr. Arambula first explained the

significance of committing another sexual offense after having spent time in prison twice




2   A.S. was the victim of the 1980 indecency-with-a-child offense.

In re Commitment of S.D.                                                                     Page 7
for similar offenses. When then asked whom the victim of this third sexual offense was,

Dr. Arambula replied that there were two victims indicated—A.B. and L. Like his

testimony regarding the 1980 and 1985 indecency-with-a-child offenses, Dr. Arambula

thereafter testified about what the investigative records upon which he had relied had

said about the 1991 indecency-with-a-child offense, what Dixon had told him about the

1991 indecency-with-a-child offense, and what significance Dixon’s explanation of the

offense had in light of the investigative records. Dr. Arambula’s testimony about the 1991

indecency-with-a-child offense also included testimony about an unadjudicated offense

that Dixon had allegedly committed against L.

       Finally, the State asked Dr. Arambula about J. Dr. Arambula testified about what

the investigative records upon which he had relied had said about what had taken place

with J. This included testifying that the investigative records showed that J. had alleged

that Dixon had committed a sexual offense against him and testifying about the

significance of J.’s allegations. Dr. Arambula acknowledged in his testimony, however,

that the charges against Dixon with regard to J. were ultimately dismissed.

       When then asked by the State if, other than committing the foregoing offenses

against children, Dixon had acted out sexually in any other way in recent years, Dr.

Arambula responded that during Dixon’s most recent time on parole, Dixon had been

sexually inappropriate at the halfway house where he had been living, which resulted in

the revocation of his parole. Dr. Arambula stated that the incident was significant

because Dixon had not accepted any responsibility for the incident even though, at the

time, he had been in a sex-offender treatment program for a year and a half. Dr.

In re Commitment of S.D.                                                            Page 8
Arambula further testified that the recent records that he had reviewed also showed that

Dixon still has fantasies of children, which is very recent evidence of Dixon’s chronic

pedophilia.

                                        Discussion

       As stated above, Dixon contends in his sole issue that the trial court committed

reversible error by admitting evidence about his unadjudicated offenses. We assume

without deciding that Dixon has preserved this issue for appellate review, and we review

the trial court’s evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas

Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

       Dixon first argues that the admission of evidence about his unadjudicated offenses

violated Rule of Evidence 404. Rule 404(b)(1) prohibits the admission of evidence of a

crime, wrong, or other act “to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.” TEX. R. EVID.

404(b)(1).    The evidence about Dixon’s unadjudicated offenses, however, was not

admitted to prove his character in order to show that, on a particular occasion, he acted

in accordance with that character.      Instead, as explained below, the evidence was

admitted to prove the allegations in the State’s petition that Dixon is a sexually violent

predator as defined by the SVP Act.

       Under the SVP Act, a person is a sexually violent predator if the person “(1) is a

repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes

the person likely to engage in a predatory act of sexual violence.” TEX. HEALTH & SAFETY

CODE ANN. § 841.003(a). Regarding the first element, a person is a repeat sexually violent

In re Commitment of S.D.                                                               Page 9
offender if, as relevant here, the person is convicted of more than one sexually violent

offense and a sentence is imposed for at least one of the offenses. Id. § 841.003(b).

Regarding the second element, 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). A

“predatory act” is defined as “an act directed toward individuals, including family

members, for the primary purpose of victimization.” Id. § 841.002(5).

       Evidence about the accused’s past sexual offenses, both adjudicated and

unadjudicated, assists in demonstrating whether the accused has a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence—the

ultimate issue that the jury must determine in an SVP Act case. See In re Commitment of

Miller, 262 S.W.3d 877, 894 (Tex. App.—Beaumont 2008, pet. denied). Such evidence

assists in demonstrating whether the accused has a behavioral abnormality even if the

evidence is presented through a witness other than an expert. Therefore, the trial court

did not abuse its discretion in allowing the State’s line of questioning to Dixon about the

unadjudicated offenses before Dr. Arambula had explained how he used the offenses in

forming his opinion. Nevertheless, having an expert in an SVP Act case explain the facts

he considered, including the accused’s past sexual offenses, both adjudicated and

unadjudicated, and how those facts influenced his evaluation, also assists the jury in

weighing the expert’s opinion on the ultimate issue. In re Commitment of Stuteville, 463

S.W.3d 543, 555 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).

In re Commitment of S.D.                                                            Page 10
       The evidence about Dixon’s unadjudicated offenses was therefore admitted to

prove the allegations in the State’s petition that Dixon is a sexually violent predator as

defined by the SVP Act—not admitted to prove Dixon’s character in order to show that,

on a particular occasion, he acted in accordance with that character. Thus, the admission

of evidence about Dixon’s unadjudicated offenses did not violate Rule of Evidence 404(b).

See TEX. R. EVID. 404(b)(1); cf. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991)

(“Circumstances of the offense which tend to prove the allegations in the indictment are

not extraneous offenses.”).

       Dixon next argues that in this case, the details of his unadjudicated offenses were

presented to inflame the passion of the jury and that the admission of such details caused

him substantial prejudice. Rule of Evidence 705(d) regarding expert testimony states that

“[i]f the underlying facts or data would otherwise be inadmissible, the proponent of [an

expert] opinion may not disclose them to the jury if their probative value in helping the

jury evaluate the opinion is outweighed by their prejudicial effect.” TEX. R. EVID. 705(d).

Rule of Evidence 403 further provides that relevant evidence may be excluded “if its

probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Id. R. 403. Factors considered when applying the Rule

403 balancing test “include the probative value of the evidence, the potential of the

evidence to impress the jury in some irrational way, the time needed to develop the

evidence, and the proponent’s need for the evidence.” See Stuteville, 463 S.W.3d at 555



In re Commitment of S.D.                                                              Page 11
(quoting In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.—Beaumont 2013,

pet. denied)).

       Dixon first contends that the evidence about his unadjudicated offenses had little

probative value because Dr. Arambula did not give much weight to the unadjudicated

offenses. Dixon argues that this case is therefore unlike other cases in which the expert

relied on the accused’s adjudicated and unadjudicated offenses to formulate the expert’s

opinion that the accused had a behavioral abnormality. But Dr. Arambula did not testify

that, in conducting his evaluation, he did not give much weight to unadjudicated

offenses. Instead, Dr. Arambula testified that, in conducting his evaluation, he gave less

weight to unadjudicated offenses than he did to convictions but that it was important to

consider everything in a medical evaluation.        Dr. Arambula’s testimony therefore

confirms that the evidence about Dixon’s unadjudicated offenses had probative value

and assisted the jury in understanding his opinion that Dixon suffers from a behavioral

abnormality. See id. at 556.

       Dixon next argues that the explicit details of the unadjudicated offenses had a

strong potential to impress the jury in an irrational way. Dixon asserts that this is

particularly true because the State was allowed to question, and Dr. Arambula was

allowed to testify, about Dixon’s unadjudicated offenses “as if they were reliable and

resulted in final convictions (of which Dixon disputed)” instead of as the “raw allegations

that they actually are.” However, the State’s line of questioning and Dr. Arambula’s

testimony made it clear that some of the offenses were adjudicated while others were

unadjudicated. Furthermore, to deter Dr. Arambula’s testimony about the offenses from

In re Commitment of S.D.                                                            Page 12
impressing the jury in an irrational way, the trial court gave a limiting instruction to the

jury after Dixon objected that Dr. Arambula’s testimony about the information contained

in his records was hearsay. An almost identical limiting instruction was then included in

the jury charge. It stated in relevant part, “[C]ertain 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 of the

expert’s opinion and cannot be considered as evidence to prove the truth of the matter

asserted.” We presume the jury followed the trial court’s limiting instructions. See In re

Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied).

       Dixon finally argues that the jury probably improperly based its decision on his

unadjudicated offenses given the amount of time that the State spent on its line of

questioning about the unadjudicated offenses. Dixon notes that, even during closing

arguments, the State showed the jury a PowerPoint slide that stated, “4 years free, 7 child

victims.” And the State declared: “So starting in 1966 up until, uh 2017, he has only been

four years free. Four years in the free world if you add it all up, from 1966 until 2017,

four years free. And we know at least seven child victims. Seven kids . . . .“ However,

given the purpose for admitting the evidence, as explained above, we conclude that the

admission of evidence about Dixon’s unadjudicated offenses was not unfairly prejudicial.

See In re Commitment of Winkle, 434 S.W.3d 300, 309 (Tex. App.—Beaumont 2014, pet.

denied) (“While Rule 403 of the Rules of Evidence allows the exclusion of relevant

evidence on special grounds, it should be used sparingly.”).



In re Commitment of S.D.                                                             Page 13
       In light of the foregoing, we conclude that the trial court did not abuse its

discretion in admitting evidence about Dixon’s unadjudicated offenses. We therefore

overrule Dixon’s sole issue.

                                      Conclusion

       We affirm the trial court’s judgment.




                                               REX D. DAVIS
                                               Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
[CV06]




In re Commitment of S.D.                                                     Page 14
