                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-13-00273-CV
                             ____________________

         IN RE COMMITMENT OF TIMOTHY EARL GREEN
_________________________________    ______________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-09-10092 CV
____________________________________________                         ____________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Timothy Earl Green as a

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

(West 2010 & Supp. 2013). A jury found that Green is a sexually violent predator

and the trial court rendered a final judgment and an order of civil commitment. In

three appellate issues, Green challenges the legal and factual sufficiency of the

evidence, the denial of his objections to the State’s request for admissions, and the

trial court’s failure to grant his motion to modify. We affirm the trial court’s

judgment and order of civil commitment.



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                            Legal and Factual Sufficiency

      In issue one, Green contends that the evidence is legally and factually

insufficient to support a finding that he suffers from a behavioral abnormality.

Under legal sufficiency review, we assess all the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could find,

beyond a reasonable doubt, the elements required for commitment under the SVP

statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont

2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in

the testimony, weigh the evidence, and draw reasonable inferences from basic facts

to ultimate facts. Id. at 887. Under factual sufficiency review, we weigh the

evidence to determine “whether a verdict that is supported by legally sufficient

evidence nevertheless reflects a risk of injustice that would compel ordering a new

trial.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied).

      In an SVP case, the State must prove, beyond a reasonable doubt, that a

person is a sexually violent predator. Tex. Health & Safety Code Ann. §

841.062(a) (West 2010). A person is a “sexually violent predator” if he is a repeat

sexually violent offender and suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. Id. § 841.003(a) (West

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Supp. 2013). A “behavioral abnormality” is “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 Supp.

2013). “A condition which affects either emotional capacity or volitional capacity

to the extent a person is predisposed to threaten the health and safety of others with

acts of sexual violence is an abnormality which causes serious difficulty in

behavior control.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex.

App.—Beaumont 2003, pet. denied).

      In this case, the jury heard evidence regarding Green’s criminal history,

including the details of his sexual offenses. Green testified that he has never

sexually assaulted a woman, but has been convicted of sexual offenses against

women. He testified that he has not received sex offender treatment, does not

believe he is a sex offender, and will not reoffend upon release. Dr. Marisa Mauro

diagnosed Green with a history of alcohol abuse and personality disorder not

otherwise specified with antisocial features. She testified that Green has some

psychopathic traits and that his scores on actuarial tests place him in the moderate

category for re-offense. She testified that Green does not have a behavioral

abnormality, she does not believe he is sexually deviant, he does not have serious

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difficulty controlling his behavior, and he is not likely to engage in a predatory act

of sexual violence.

      Dr. David Self testified that Green has a behavioral abnormality that makes

him likely to engage in predatory acts of sexual violence. Dr. Self identified

several factors that increase Green’s risk of re-offense, including sexual deviance,

and diagnosed Green with paraphilia not otherwise specified, personality disorder

not otherwise specified with antisocial traits, and history of polysubstance abuse.

He testified that paraphilia and personality disorders are chronic conditions, that

Green has some psychopathic traits, and that Green’s criminal history shows a

pattern of escalation.

      The jury was entitled to infer current serious difficulty controlling behavior

based on Green’s past behavior, Green’s testimony, and the expert testimony. See

In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930,

at *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); see also In re

Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at

*20 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem. op.). The jury could

reasonably conclude that Green is likely to commit predatory acts of sexual

violence directed toward individuals for the primary purpose of victimization. See

In re Commitment of Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681,

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at **6-7 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see also

Mullens, 92 S.W.3d at 887; Almaguer, 117 S.W.3d at 506; Burnett, 2009 Tex.

App. LEXIS 9930, at *13; Grinstead, 2009 Tex. App. LEXIS 228, at *16. Viewing

the evidence in the light most favorable to the verdict, a rational jury could have

found, beyond a reasonable doubt, that Green has a behavioral abnormality that

predisposes him to commit a predatory act of sexual violence; thus, the evidence is

legally sufficient. See Kansas v. Crane, 534 U.S. 407, 413 (2002); see also

Mullens, 92 S.W.3d at 885. Weighing all of the evidence, the verdict does not

reflect a risk of injustice that would compel ordering a new trial. See Day, 342

S.W.3d at 213. We overrule issue one.

                        The State’s Request for Admissions

      In issue two, Green argues that the trial court improperly overruled his

objections to the State’s request for admissions that inquired about his prior

offenses and lack of participation in sex offender treatment. At trial, the State read

Green’s responses into evidence. The State later moved for a directed verdict as to

whether Green is a repeat sexually violent offender. After noting that Green

admitted to having two convictions for sexual offenses, the trial court granted the

State’s motion.




                                          5
      “We review a trial court’s discovery rulings for abuse of discretion.” In re

Commitment of Perez, No. 09-12-00132-CV, 2013 Tex. App. LEXIS 1866, at *13

(Tex. App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.). “We will reverse a

judgment upon a challenge to that court’s discovery ruling when the appellant

shows that the trial court abused its discretion and the trial court’s error probably

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

properly presenting the case on appeal.” Id. at *17; Tex. R. App. P. 44.1(a).

      Pen packets were admitted into evidence, without objection, that show

Green’s convictions for attempted sexual assault, aggravated sexual assault, and

aggravated kidnapping. During his own testimony, Green admitted to these

convictions (as well as other convictions), admitted to having been arrested for

drug possession, and admitted that he does not believe he is a sex offender. Self

and Mauro also testified regarding Green’s criminal history. Additionally, the

record contains other evidence by which the trial court could grant a directed

verdict and by which the jury could reasonably conclude that Green is a sexually

violent predator. Even the erroneous admission of evidence is harmless when it is

cumulative. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.

2004). Because the admission of Green’s responses to request for admissions was

not error, we overrule issue two.

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                                 Motion to Modify

      In issue three, Green challenges the trial court’s failure to grant his motion to

modify the civil commitment order. The record does not indicate that the trial court

ruled on Green’s motion. Because Green failed to obtain a ruling on his motion,

issue three is not preserved for appellate review and is overruled. See Tex. R. App.

P. 33.1(a); see also Finley v. May, 154 S.W.3d 196, 199-200 (Tex. App.—Austin

2004, no pet.) (To preserve error for appeal, a party complaining of a trial court’s

ruling on a motion must show that the motion was presented to the trial court and

acted upon by the trial court.). We affirm the trial court’s judgment and order of

civil commitment.

      AFFIRMED.



                                              ________________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on November 20, 2013
Opinion Delivered December 12, 2013

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




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