Affirmed; Opinion Filed October 16, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01202-CV

            IN RE THE COMMITMENT OF STEVEN EDWARD MENDOZA

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. CV-17-70003

                              MEMORANDUM OPINION
                        Before Justices Pedersen, III, Reichek, and Carlyle
                                    Opinion by Justice Carlyle

       A jury found appellant Steven Edward Mendoza is a sexually violent predator as defined

in the Texas Civil Commitment of Sexually Violent Predators Act (the Act). See TEX. HEALTH &

SAFETY CODE §§ 841.001–.151. The trial court rendered judgment on the jury’s verdict and

ordered him civilly committed for treatment and supervision under the Act. In five issues on

appeal, Mendoza contends the evidence is legally and factually insufficient to support the jury’s

sexually violent predator finding and the trial court erred by admitting hearsay testimony into

evidence and disallowing certain other trial testimony. We affirm the trial court’s judgment in this

memorandum opinion. See TEX. R. APP. P. 47.4.

                                          I. Background

       In August 2017, the State of Texas filed a petition alleging Mendoza (1) meets the Act’s

definition of sexually violent predator, i.e., “a repeat sexually violent offender who suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual violence,” and

(2) therefore should be civilly committed under the Act. At that time, Mendoza was serving a ten-

year prison sentence for two sexually violent offenses he committed on the same evening and to

which he had pleaded guilty. He was scheduled for release from prison on or before May 4, 2019.

        At the April 2018 trial in this case, Mendoza testified that after graduating high school in

2005, he lived at his father’s home in Dallas. He was employed for several short periods, but “just

walked off” those jobs because he preferred to “stay at home and chill.” He regularly “borrowed”

money from his grandmother and used that money to buy marijuana, which he smoked daily, and

cocaine, which he used on weekends.

        The two offenses for which Mendoza was convicted occurred on a Saturday in 2009. That

morning, he drank alcohol and smoked marijuana. In the evening, he attended a barbeque at his

cousin Leticia’s home, where he used cocaine, drank more alcohol, and smoked more marijuana.

Near the end of the barbeque, the only guests still awake were Mendoza, a male cousin, and a

neighbor’s wife. The three of them talked and drank in the dining room, which was adjacent to the

living room. Two of Leticia’s daughters, ages eleven and eight, were asleep on the living room

sofa.

        Mendoza testified he was “feeling drunk” and “started feeling on the neighbor’s wife,”

who then left. Mendoza and his male cousin went into the living room, where the cousin fell asleep

on the floor. Mendoza stated he was “feeling aroused” and his plan “was to like take care of my

arousal.” He approached Leticia’s sleeping eleven-year-old daughter, removed her panties, then

took off his pants and underwear and began “to try to penetrate her.” The eleven-year-old awoke

when he started removing her panties and he “saw fear in her face” but “didn’t stop.” As Mendoza

attempted to penetrate her, she pushed him away, screamed, and ran to her room. Mendoza

testified:
       Q. She ran to her room. Okay. What did you think about that when you saw her do
       that?

       A. Well, I wasn’t satisfied because I didn’t get—I didn’t accomplish what I was
       trying to get accomplished.

       Q. And nothing in that moment said, “Oh, my God, what have I done? Let me go—
       If I’m horny just go masturbate”? Nothing said that to you?

       A. No, ma’am.

       Q. So what did you do?

       A. I went to her sister.

Mendoza stated he took off the eight-year-old’s pants and “was gonna do the same thing,” but she

“got up and ran to her room.” At that point, Mendoza “just decided to just forget about it” and fell

asleep on the sofa.

       The next morning, Leticia confronted Mendoza about what happened and her brother-in-

law threatened him. Mendoza “took off” and “went into hiding.” About a month later, he turned

himself in to police at his family’s request. Initially, Mendoza told police Leticia’s brother-in-law

had committed the assaults, but “[the police] had all the facts so, you know, I just went ahead and

confessed.” He pleaded guilty to one count of aggravated sexual assault of a child under fourteen

and one count of attempted aggravated sexual assault of a child under fourteen.

       Approximately two years into his ten-year prison sentence, Mendoza “caught a Code 20,”

which meant he was disciplined for exposing himself in a public setting. As a result, he was

“locked down like 23 hours a day.” About three years later, he was caught tampering with a lock

and his restriction was increased to “closed custody,” which meant he was “locked down 24 hours

a day.” While in closed custody, Mendoza committed at least seventy additional Code 20

violations by exposing himself to female prison guards. He stated (1) he used a contraband “peep

mirror” obtained from another inmate to see when female guards “were coming down the run” so
he could masturbate and expose himself to them, and (2) this was called “the jack game” and was

something other inmates told him about after he began serving his sentence.

        Mendoza testified he knows he “needs treatment.” He stated he (1) “just can’t stop”

exposing himself to women and (2) has “an anger or temper problem” that “causes me to explode.”

His plan upon release from prison was to stay with his sister, but he had no plans regarding

treatment or employment.

        On cross-examination, Mendoza stated (1) the assaults on Leticia’s daughters would not

have happened if he had been sober; (2) he realizes his behavior “traumatized them” and “messed

up” their lives; and (3) he prefers “to have sex with a person that’s, you know, around my age or

older” and does not want to have sex with children. On redirect examination, he stated that in a

February 2018 deposition in this case, he testified the assaults on Leticia’s daughters were “an

impulse.”

        Dr. Randall Price, a board-certified forensic psychologist, testified the State retained him

to conduct a behavioral abnormality evaluation of Mendoza. Price has performed approximately

175 to 200 such evaluations. He interviews the subject face-to-face and reviews all available

records, including previous behavioral abnormality evaluations. Then, he completes “actuarial

instruments,” arrives at a diagnosis, identifies “what the risk factors are and what the protective

factors are,” and determines whether the subject has a behavioral abnormality.

        Price stated the Act defines behavioral abnormality as “a congenital or acquired condition

that, by affecting a person’s emotional or volitional capacity predisposes that person to commit a

sexually violent offense to the extent that the person becomes a problem for the public.” Further,

he testified:

        Q. . . . How would you describe—define predatory offense?

        A. If it’s predatory, it means the person is seeking to exploit or injure another person
        for their pleasure, profit or gain in some way.
       Q. So to victimize someone?

       A. It involves creating a victim that they offend against.

       Q. You mentioned the Health and Safety Code. Is that where you derive your
       definitions from of behavioral abnormality?

       A. Yes.

       Price stated he has “never seen a file with this many Code 20s in it.” He diagnosed Mendoza

with (1) a substance abuse disorder that was “in partial remission secondary to a controlled

environment”; (2) “exhibitionist disorder,” which is “where the person repeatedly exposes

themselves to a non-consenting person for their own psychological gratification and sexual

gratification . . . , sometimes while they’re engaging in the act of masturbation, sometimes not”;

and (3) an unspecified “paraphiliac disorder,” or “sexual deviance,” based on his “history of

offending against two children.” According to Price, (1) Mendoza did not meet the criteria for a

pedophilic disorder because there was no evidence he had repeatedly offended against children

over a time period of at least six months, and (2) there was “not enough information about

[Mendoza’s] sexual conduct prior to that offense and prior to coming to prison to go any further

on a sexual deviance diagnosis.” Further, Price stated (1) “there’s two major pathways to having a

behavioral abnormality”; (2) “one is sexual deviance and the other is what we call anti-social

behavior and attitudes”; (3) “[Mendoza’s] is more of the sexual deviance”; and (4) although

substance abuse contributes to “lack of volitional control,” it “doesn’t create any new sexual

interest or sexual deviance.”

       One of the actuarial measures Price used in evaluating Mendoza was the Psychopathy

Checklist Revised (PCLR), which contains questions designed to assess whether the subject is “a

psychopath who has that anti-social attitude and history of behaviors of a wide variety that
increases the chance of reoffending.” Mendoza’s score showed he “does not meet the PCLR

diagnostic criteria for being a psychopath.”

       Another actuarial measure Price used was the Static 99-R, which evaluates “risk of

reoffending” by “looking at empirical or quantify verified factors that contribute to sexual

reoffending.” Price testified (1) Mendoza’s score of five on that evaluation “puts him in the above

average risk category to reoffend”; (2) in a “routine sample” of other sex offenders with a score of

five, approximately 15% of those offenders committed another sex offense of any type within five

years; (3) in a sample of sex offenders with a score of five who “have already been identified as

being high risk and need intervention,” 21% reoffended within five years; and (4) in a sample of

Texas sex offenders with a score of five, 7.4% reoffended within five years.

       Additionally, Price identified and considered (1) “other Non-Static 99 risk factors,”

including Mendoza’s substance abuse, “[p]roblems with employment,” impulsivity, “high sex

drive,” “hypersexualities,” “sexual preoccupation,” and lack of completion of sex offender

treatment; and (2) “protective factors,” including “no evidence that [Mendoza] has ever had a male

victim” and no “major mental illness” or psychopathy. Also, Price stated it’s “a pretty big thing”

that Mendoza admits and takes responsibility for his offenses, because “[a] lot of sex offenders

don’t.” Based on his evaluation, Price determined Mendoza has a behavioral abnormality as

defined in the Act.

       On cross-examination, Price stated (1) although substance abuse can “impair analytical

thinking” and “increase impulsivity and acting without thinking,” those effects decrease after the

substance is out of the user’s system, and (2) although Mendoza’s exhibitionist disorder diagnosis

shows “sexual lack of volitional control,” his “exposure offenses” in prison are not considered

sexually violent offenses under the Act. Also, Price testified:

       Q. . . .[Y]ou are aware that the standard is the person must be likely to commit a
       predatory act in the future, correct?
       A. I am aware of that.

       Q. How does the statute define the term predatory act?

       A. The statute defines predatory act as an act directed towards individuals,
       including family members, for the primary purpose of victimization.

       Q. Has that always been the definition of predatory act?

       A. No, that was one of the amendments to this law, I believe, that—I don’t think it
       was in the original law. I don’t know for sure, though. And I certainly don’t know
       what year it was added if it was added.

       Q. Do you put any emphasis on the wording that the act must be for the primary
       purpose? Do you put any emphasis on the word “primary”?

       A. Yeah. Primarily, in this case, in my opinion, means important. It means of chief
       importance and it’s an essential component, fundamental. It does not, in my
       opinion, first or only purpose. It means that is an important—it’s of importance that
       there is a victim involved in sexual offenses for the offender.

       Q. Did the definition, if you recall, used to be that it was for the purpose of—

               [COUNSEL FOR STATE]: Judge, I’m going to object to anything that used
               to be. We’re here—

               THE COURT: Sustained. . . . It’s not relevant. What’s relevant today is the
               law that’s in effect today, not yesterday or 10 years ago.
       ....
       Q. . . . Do you assign a numerical value to what likely is or isn’t?

       A. I do not.

       Q. But you do conceptualize the term “likely” in order to evaluate an individual?

       A. Yes.

       Q. How do you conceptualize it?

       A. As is the practice in forensic psychology, we not only base our opinions on
       statutes, but we also utilize case law. In Texas, the case law tells us that in these
       cases, likely means beyond a mere possibility. That’s the way I conceptualize likely
       for these cases.

       On redirect examination, Price testified it is “fair to say that all sex crimes are predatory in

nature, particularly those committed against children.” Also, he stated the records he reviewed in
conducting Mendoza’s evaluation included a prior behavior abnormality evaluation by Dr. Jorge

Varela. Price testified:

        Q. And what was Dr. [V]arela’s opinion?

                 [COUNSEL FOR MENDOZA]: Objection; relevance, hearsay.

                 [COUNSEL FOR STATE]: I’ll withdraw the question, Your Honor.

        Q. Did you rely on Dr. [V]arela’s opinion to form your opinion?

        A. No.

        Q. Did your opinion agree with Dr. [V]arela’s—

                 [COUNSEL FOR MENDOZA]: Objection; relevance.

                 THE COURT: Overruled.

        A. Yes, my opinion that he has a behavioral abnormality was consistent with Dr.
        [V]arela’s.

        Outside the jury’s presence, Mendoza made an offer of proof regarding Price’s knowledge

of the legislature’s 2005 addition of the word “primary” to the Act’s definition of “predatory act.”

Price stated he did not know the legislature’s purpose in adding the word “primary.” Counsel for

Mendoza argued “we believe that the question with respect to the primary purpose is relevant in

that it was placed in there for a specific reason to be considered by experts and by the jury.”

        The charge of the court included (1) the Act’s definitions of “sexually violent predator,”

“behavior abnormality,” and “predatory act,” and (2) a definition of “hearsay.” The charge

instructed the jury,

        Base your answer only on the evidence admitted in court and on the law that is
        contained in these instructions and questions. Do not consider or discuss any
        evidence that was not admitted in the courtroom.
                . . . You are the sole judges of the credibility of the witnesses and the weight
        to be given to their testimony, but on matters of law, you must follow the court’s
        instructions.
                . . . If the instructions use a word in a way that is different from its ordinary
        meaning, use the legal definitions given in this charge.
        ....
              . . . Hearsay normally is not admissible. In this case, certain 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.

       Following the verdict and judgment described above, Mendoza filed a timely motion for

new trial, which was overruled by operation of law.

                                 II. Legal and factual sufficiency

       In enacting the Act, the Texas Legislature made findings “that a small but extremely

dangerous group of sexually violent predators exists and that those predators have a behavioral

abnormality that is not amenable to traditional mental illness treatment modalities and that makes

the predators likely to engage in repeated predatory acts of sexual violence.” HEALTH & SAFETY

§ 841.001. Thus, the legislature found, “a civil commitment procedure for the long-term

supervision and treatment of sexually violent predators is necessary and in the interest of the state.”

Id.

       In a suit to commit a person as a sexually violent predator under the Act, the State must

prove beyond a reasonable doubt that 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.” Id. §§ 841.003(a), 841.062(a). A person is a repeat sexually violent

offender if he has been convicted of more than one sexually violent offense and a sentence was

imposed for at least one of the offenses. Id. § 841.003(b); see also id. § 841.002(8) (defining

“sexually violent offense”). 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). Predatory act means “an act directed toward individuals,

including family members, for the primary purpose of victimization.” Id. § 841.002(5).
        In reviewing civil commitments under the Act, we use the criminal test for legal

sufficiency. In re Commitment of Brown, No. 05-16-01178-CV, 2018 WL 947904, at *8 (Tex.

App.—Dallas Feb. 20, 2018, no pet.) (mem. op.). Thus, we review all admitted evidence in the

light most favorable to the verdict to determine whether any rational factfinder could have found

the required elements beyond a reasonable doubt. Id. It is the factfinder’s responsibility to resolve

conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic to

ultimate facts. Id.

        Although factual sufficiency has been abandoned in criminal cases, as an intermediate

appellate court with final authority over factual sufficiency challenges in civil cases, we will

perform a factual sufficiency review in civil commitment cases when the issue is raised on appeal.

Id. In our factual sufficiency review, we consider whether the verdict, though supported by legally

sufficient evidence, nevertheless reflects a risk of injustice that compels a new trial. Id. We view

all the evidence in a neutral light and determine whether the jury was rationally justified in finding

the required elements beyond a reasonable doubt. Id. We reverse only if the risk of an injustice is

too great to allow the verdict to stand. Id.; see also In re Commitment of Johnson, No. 05-17-

01171-CV, 2019 WL 364475, at *2 (Tex. App.—Dallas Jan. 30, 2019, no pet.) (mem. op.); In re

Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston [1st Dist.] 2015, pet.

denied). The jury is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. Brown, 2018 WL 947904, at *9.

        We begin with Mendoza’s second issue, in which he contends the evidence is “legally and

factually insufficient to prove beyond a reasonable doubt that [he] suffers from a behavioral

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

evidence showed [he] would not commit an act directed toward individuals, including family

members, for the primary purpose of victimization.” Mendoza asserts (1) the Act’s definition of
predatory act “focuses not just on victimization, but requires that victimization be the primary

purpose”; (2) he “chose his victims because they were there and female, not because victimizing

them was his highest priority”; (3) although “[his] masturbatory habits in prison could be said to

involve victimization,” “indecent exposure is not a sexually violent offense”; and (4) he “should

be granted a new trial where the State must present sufficient proof that he fits this necessary

prerequisite to finding him a Sexually Violent Predator.”

       Mendoza’s position has been rejected by several of our sister courts. In In re Commitment

of Sternadel, appellant Sternadel argued the evidence was legally and factually insufficient to

support a sexually violent predator finding because there was “no evidence that he would commit

an act directed toward individuals ‘for the primary purpose of victimization.’” No. 14-17-00051-

CV, 2018 WL 1802151, at *4 (Tex. App.—Houston [14th Dist.] Apr. 17, 2018, no pet.) (mem.

op.). The court of appeals noted the supreme court has concluded that “whether a person suffers

from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual

violence is a single, unified issue.” Id. (citing In re Commitment of Bohannan, 388 S.W.3d 296,

303 (Tex. 2012)). The court of appeals stated that based on Bohannan, it had “expressly rejected

the premise that whether an act was performed for the primary purpose of victimization ‘is a

separate issue from whether he suffers from a behavioral abnormality that predisposes him to

commit a sexually violent offense.’” Id. (quoting In re Commitment of Harris, 541 S.W.3d 322,

328 (Tex. App.—Houston [14th Dist.] 2017, no pet.)). Thus, that court reasoned (1) “[t]hat an act

would be ‘for the primary purpose of victimization’ is not a separate element that must be proved,”

and (2) to prove that a person “is likely to engage in a predatory act of sexual violence for the

primary purpose of victimization,” “it is sufficient if the evidence shows the ‘person’s

predisposition to commit a sexually violent offense to the extent that he becomes a menace to the

health and safety of another person.’” Id. (quoting Harris, 541 S.W.3d at 329). The court of appeals
concluded the State was “not required to independently show that the person’s predation would be

‘for the primary purpose of victimization.’” Id.; see also In re Commitment of Colantuono, 536

S.W.3d 549, 557 (Tex. App.—San Antonio 2017, no pet.) (same); In re Commitment of Hayes,

No. 02-18-00018-CV, 2018 WL 4627064, at *3 (Tex. App.—Fort Worth Sept. 27, 2018, no pet.)

(mem. op.) (same). Based on the same reasoning, we conclude the State was not required to

independently show Mendoza’s predation would be for the primary purpose of victimization.

Therefore, we overrule his second issue.

       Next, we address Mendoza’s fourth issue, in which he challenges the legal sufficiency of

the evidence. Mendoza argues Price’s opinion “amounts to no evidence” and “without [Price’s]

misleading, conclusory, and speculative testimony, no rational factfinder could have found,

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

According to Mendoza, (1) Price “misrepresented the status of the law regarding the term ‘likely,’

misinforming the jury that ‘more than a mere possibility’ had been adopted by the courts and was

the law that the jury must follow, as opposed to merely his opinion of what the term meant”;

(2) “[Price’s] definition of ‘predatory offense’ did not come from the statute”; and (3) Price’s

actuarial tools predicted the likelihood of Mendoza committing “another sexual offense, but not

another sexually violent offense.”

       In In re Commitment of Rollings, the testifying expert defined “likely” as “more than a

mere possibility.” No. 05-17-00938-CV, 2018 WL 6695731, at *5 (Tex. App.—Dallas, Dec. 20,

2018, no pet.) (mem. op.). On appeal, Rollings asserted error, suggesting “likely” “must mean at

least ‘more likely than not.’” This court concluded the expert’s definition did not “in and of itself,

render the evidence insufficient to support a jury’s finding that a person suffers from a behavioral

abnormality.” Id. (citing In re Commitment of Terry, No. 09-15-00500-CV, 2016 WL 7323299, at

*13 (Tex. App.—Beaumont Dec. 15, 2016, no. pet.) (mem. op.) (concluding expert’s working
definition of “likely” as “more than a mere possibility” does not render evidence in sexually violent

predator civil commitment case legally or factually insufficient)). Based on Rollings, we conclude

Price’s explanation of how he “conceptualizes” the term “likely” did not render the evidence in

this case legally or factually insufficient. See id.

        As to Mendoza’s argument regarding the definition of “predatory offense,” the record

shows that when Price was asked how he would “describe” that term, he did not use language from

the Act. But elsewhere in his testimony, Price defined “predatory act” for the jury using the Act’s

exact language and testified he derived his definition of “behavioral abnormality” from the Act.

We disagree with Mendoza’s position that Price’s description of “predatory offense” rendered his

testimony misleading, conclusory, or speculative. See In re Commitment of Sawyer, No. 05-17-

00516-CV, 2018 WL 3372924, at *7 (Tex. App.—Dallas July 11, 2018, pet. denied) (mem. op.)

(concluding expert’s opinion based on standard methodology was not conclusory).

        Additionally, as to Mendoza’s argument that Price’s actuarial tools did not predict the

likelihood of Mendoza committing another sexually violent offense, the record shows those tools

were not the sole basis for Price’s conclusions. See Rollings, 2018 WL 6695731, at *6 (rejecting

argument that evidence was legally insufficient because actuarial scores did not show another

offense would be committed). At trial, the jury heard (1) expert testimony about actuarial tools and

other risk factors; (2) the expert’s opinion that Mendoza has a behavioral abnormality as defined

in the Act; and (3) Mendoza’s testimony about his criminal history, the details of his offenses, and

his victims. Viewing all the evidence in the light most favorable to the jury’s finding, we conclude

a rational jury could have concluded beyond a reasonable doubt that Mendoza has a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence. See id. Thus,

the evidence is legally sufficient to support the jury’s sexually violent predator finding.
       In his fifth issue, Mendoza asserts a factual sufficiency challenge. He contends his

conviction “cannot stand against a neutral appraisal” because (1) his offenses “were strongly tied

to his use of drugs and alcohol and he has not been accused of any violent sexual offenses outside

of that context”; (2) “[h]e did not sexually offend until he was almost twenty-one years of age”;

(3) his “episodes of exhibitionism” are not “sexually violent” under the Act; and (4) “[a]s

disturbing as [his] crimes were, they were not considered so heinous at the time that he was

prevented from getting a sentence that was much closer to the minimum of five years than the

maximum of ninety-nine years each that he could possibly have received for his crimes.” Further,

Mendoza asserts that “[w]hile reprehensible, [his] attempted attacks on a single night hardly

constitute ‘a history of multiple sexual offenses over an extended period of time’ or a pattern of

well-ingrained offending behavior.” (quoting In re Commitment of Stoddard, No. 02-17-00364-

CV, 2019 WL 2292981 (Tex. App.—Fort Worth May 30, 2019, pet. filed) (mem. op.)).

       Stoddard involved a sex offender with two aggravated-assault-of-a-child convictions who

had also committed other aggravated assaults of children under fourteen. See 2019 WL 2292981,

at *1. At Stoddard’s civil commitment trial, the testifying expert explained that his diagnosis of

Stoddard “was centered upon” Stoddard’s two offenses for which he had been convicted. Id. at *5.

The court of appeals concluded the evidence was factually insufficient to support the jury’s

sexually violent predator finding. That court stated, “To hold that [the expert’s] testimony—which

by his own admission centered primarily upon the 2003 offenses themselves—provided the

necessary evidence to show, beyond a reasonable doubt, that Stoddard should be considered one

of the small but extremely dangerous sex offenders for which civil commitments are warranted,

would open the door to civil commitment of most—if not all—sex offenders who are currently

incarcerated and serving the sentences imposed upon them for their crimes.” Id. at *16.
        Mendoza contends that “unlike Stoddard, who there was found to be insufficient evidence

to civilly commit—Mr. Mendoza was not even alleged to have committed other sexually violent

offenses.” This court recently addressed the same Stoddard-based factual insufficiency argument

in In re Commitment of Joiner, No. 05-18-01001-CV, 2019 WL 4126602, at *9 (Tex. App.—

Dallas Aug. 30, 2019, no pet.) (mem. op.). We concluded,

       The statute defines “sexually violent predator,” in part, as “a repeat sexual
       offender.” With his two convictions, Joiner is a “repeat sexual offender.” To find
       the evidence factually insufficient because he did not have more than two sexual-
       assault convictions would constitute adding an element to the sexually violent
       predator statute, which courts may not do.

Id. Likewise, we reject Mendoza’s argument that his total of two sexually violent offenses rendered

the evidence factually insufficient. See id. Further, this court stated in Joiner that absent expert

testimony to the contrary, the length of an offender’s sentences and alleged “lack of heinousness”

of the underlying offenses “are not relevant to whether the defendant meets the statutory definition

of sexually violent predator.” Id. The record in this case contains no expert testimony that would

make such considerations relevant.

       Price testified (1) he diagnosed Mendoza with a substance abuse disorder that was “in

partial remission secondary to a controlled environment,” “exhibitionist disorder,” and an

unspecified “sexual deviance” based on his “history of offending against two children”;

(2) although substance abuse contributes to “lack of volitional control,” it “doesn’t create any new

sexual interest or sexual deviance”; (3) Mendoza’s score of five on the Static 99-R “puts him in

the above average risk category to reoffend”; and (4) Mendoza’s “other Non-Static 99 risk factors”

include substance abuse, “[p]roblems with employment,” impulsivity, “high sex drive,”

“hypersexualities,” “sexual preoccupation,” and lack of completion of sex offender treatment.

Mendoza testified (1) he knows he “needs treatment”; (2) he “just can’t stop” exposing himself to

women; (3) he has “an anger or temper problem” that “causes me to explode”; and (4) he has no
plans regarding treatment upon his release from prison. The jury was the sole judge of the

witnesses’ credibility and the weight to be given their testimony. See Brown, 2018 WL 947904, at

*9. Viewing all the evidence in a neutral light, we conclude (1) the jury was rationally justified in

finding beyond a reasonable doubt that Mendoza is “a repeat sexually violent offender who suffers

from a behavioral abnormality that makes him likely to engage in a predatory act of sexual

violence,” see HEALTH & SAFETY § 841.003(a), and (2) the jury’s verdict does not reflect a risk of

injustice too great to allow the verdict to stand, see Brown, 2018 WL 947904, at *8. Therefore, the

evidence is factually sufficient to support the jury’s finding that Mendoza is a sexually violent

predator. See Joiner, 2019 WL 4126602, at *9.

                              III. Trial court’s evidentiary rulings

       We review a trial court’s evidentiary rulings for abuse of discretion. In re Commitment of

Browning, 113 S.W.3d 851, 865 (Tex. App.—Austin 2003, pet. denied). A trial court abuses its

discretion when it acts without regard for guiding rules or principles. U-Haul Int’l, Inc. v. Waldrip,

380 S.W.3d 118, 132 (Tex. 2012). Even if a trial court abused its discretion in making an

evidentiary ruling, reversal is appropriate only if the error probably resulted in an improper

judgment. Id.; TEX. R. APP. P. 44.1.

       In his first issue, Mendoza contends the trial court erred by admitting into evidence

“hearsay testimony regarding a non-testifying expert’s opinion . . . where the testifying expert

denied that he had relied on the other opinion in forming his own opinion.” According to Mendoza,

“the prosecution elicited testimony regarding Dr. Varela’s conclusions for no other reason than to

lend support to its case” and such testimony “was hearsay and not relevant and therefore was

unfairly prejudicial to [Mendoza].”

       Assuming without deciding the complained-of testimony was hearsay, the jury charge

included an instruction that “certain hearsay information contained in records reviewed by an
expert or experts was admitted before you through expert testimony hearsay” and “cannot be

considered as evidence to prove the truth of the matter asserted.” Absent record evidence to the

contrary, we presume the jury followed the trial court’s limiting instructions. In re Commitment of

Millar, No. 05-18-00706-CV, 2019 WL 3162463, at *2 (Tex. App.—Dallas July 16, 2019, no pet.)

(mem. op.); Johnson, 2019 WL 364475, at *7; In re Commitment of Day, 342 S.W.3d 193, 199

(Tex. App.—Beaumont 2011, pet. denied). Mendoza has not directed this court to any record

evidence that the jury ignored the trial court’s limiting instruction. Therefore, we conclude any

error in admitting the complained-of testimony was harmless.

       In his third issue, Mendoza asserts the trial court abused its discretion by “prohibit[ing]

questioning of the prosecution’s expert on his understanding of the legislature’s addition of the

word ‘primary’ to the SVP statute’s definition of ‘predatory act.’” Specifically, Mendoza’s

complaint pertains to the following portion of Price’s cross-examination:

       A. The statute defines predatory act as an act directed towards individuals,
       including family members, for the primary purpose of victimization.

       Q. Has that always been the definition of predatory act?

       A. No, that was one of the amendments to this law, I believe, that—I don’t think it
       was in the original law. I don’t know for sure, though. And I certainly don’t know
       what year it was added if it was added.

       Q. Do you put any emphasis on the wording that the act must be for the primary
       purpose? Do you put any emphasis on the word “primary”?

       A. Yeah. Primarily, in this case, in my opinion, means important. It means of chief
       importance and it’s an essential component, fundamental. It does not, in my
       opinion, first or only purpose. It means that is an important—it’s of importance that
       there is a victim involved in sexual offenses for the offender.

       Q. Did the definition, if you recall, used to be that it was for the purpose of—

               [COUNSEL FOR STATE]: Judge, I’m going to object to anything that used
               to be. We’re here—

               THE COURT: Sustained. . . . It’s not relevant. What’s relevant today is the
               law that’s in effect today, not yesterday or 10 years ago.
Mendoza argues (1) his attorney “was prevented from asking a follow up question regarding Dr.

Price’s knowledge that ‘primary’ was a deliberate addition to the statute and not some sort of

oversight on the part of the legislature”; (2) “[w]hether Dr. Price did or did not know why the word

was there was a [sic] relevant to his interpretation of its meaning, which was in turn relevant to the

credibility of his opinion”; and (3) “[h]ad the jury been permitted to witness the expert’s

examination on this issue, it likely would have undermined Dr. Price’s credibility and resulted in

a different verdict.”

        Immediately prior to the complained-of evidentiary ruling, Price testified he did not “know

for sure” whether the legislature had changed the Act’s original definition of “predatory act.” Also,

during the offer of proof, Price stated he did not know the legislature’s purpose in adding the word

“primary.” Therefore, we conclude the trial court did not abuse its discretion by not permitting

further questioning about Price’s knowledge of the legislature’s revisions and intent. See TEX. R.

EVID. 611(a) (“The court should exercise reasonable control over the mode and order of examining

witnesses and presenting evidence so as to . . . avoid wasting time . . . .”). Further, for the same

reason, any error was harmless. See U-Haul, 380 S.W.3d at 132; TEX. R. APP. P. 44.1.

        We decide Mendoza’s five issues against him and affirm the trial court’s judgment.



                                                      /Cory L. Carlyle/
                                                      CORY L. CARLYLE
                                                      JUSTICE



181202F.P05
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN RE THE COMMITMENT OF STEVEN                     On Appeal from the 363rd Judicial District
 EDWARD MENDOZA                                     Court, Dallas County, Texas
                                                    Trial Court Cause No. CV-17-70003.
 No. 05-18-01202-CV                                 Opinion delivered by Justice Carlyle.
                                                    Justices Pedersen, III and Reichek
                                                    participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.



Judgment entered this 16th day of October, 2019.
