Affirmed and Opinion filed August 23, 2018.




                                         In The

                        Fourteenth Court of Appeals

                                 NO. 14-17-00439-CV


           IN RE COMMITMENT OF WALTER PETER GRICE, JR.


                       On Appeal from the 212th District Court
                              Galveston County, Texas
                         Trial Court Cause No. 16-CV-0800


                                    OPINION

      Appellant Walter Peter Grice, Jr. appeals from his civil commitment as a
sexually violent predator. After the trial court directed a partial verdict that Grice is a
repeat sexually violent offender, a jury found that he is a sexually violent predator.
The trial court then entered a final judgment and an order of civil commitment. In two
issues, Grice contends that the trial court erred in (1) overruling his Texas Rule of
Evidence 705 objection to certain evidence of past charged crimes and (2) granting a
partial directed verdict on the issue of whether Grice is a repeat sexually violent
offender. We affirm.
                                     Background

      The SVP Act. The Civil Commitment of Sexually Violent Predators Act (SVP
Act) provides for the civil commitment of persons determined to be sexually violent
predators. Tex. Health & Safety Code §§ 841.001–.151. 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.” Id. § 841.003(a). A person is a repeat sexually
violent 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). The statute defines “behavioral abnormality” 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). The commitment of a person as a sexually violent predator is a civil
proceeding, see In re Commitment of Fisher, 164 S.W.3d 637, 645–53 (Tex. 2005),
and the SVP Act requires the State to prove a person is a sexually violent predator
beyond a reasonable doubt. Tex. Health & Safety Code § 841.062(a).

      Grice’s trial. The State’s expert psychologist, Dr. Stephen Thorne, evaluated
Grice and testified that in his opinion, Grice suffers from a behavioral abnormality
making him likely to engage in a predatory act of sexual violence. Thorne described
for the jury his training and experience, the legal definitions involved, and his
methodology. In forming his opinion, Thorne reviewed voluminous records,
including a deposition of Grice taken for purposes of the commitment proceedings,
and conducted an hour-long interview with Grice.

      Thorne discussed Grice’s relevant history in the criminal justice system,
including convictions for sexual assault against an adult female, for which Grice

                                           2
received a 20-year sentence, and for aggravated sexual assault of a child, for which
Grice was sentenced to 35 years in prison.1 Thorne explained that past sexual
convictions are important to the analysis because they are “confirmation of past
sexual deviancy.” He also stated that the facts underlying the convictions are very
relevant for determining the risk of reoffending in the future, and he described the
facts of the two offenses in some detail.

       Thorne additionally testified that in performing behavioral-abnormality
evaluations, allegations that did not result in convictions can also be considered.
When the State began to ask Thorne about charges that did not result in convictions
for sexual offenses, however, Grice objected pursuant to Rule of Evidence 705(d) and
argued that the probative value of the evidence was outweighed by its prejudicial
effect. The two charges that Grice complains about on appeal were an indictment for
aggravated sexual assault of a child that was subsequently reduced to assault causing
bodily injury and an indictment for indecency with a child that was reduced to injury
to a child.2

       Thorne diagnosed Grice with “non-parent/child sexual abuse,” “adult sexual
abuse by a non-spouse or partner,” and “other specified personality disorder,” which
Thorne described as a disorder that has all of the characteristics for “antisocial
personality disorder” except that Thorne could not verify Grice exhibited symptoms
       1
        Grice was originally placed on ten years’ deferred adjudication community supervision for
the sexual-assault charge, but his community supervision was subsequently revoked when he was
charged with aggravated sexual assault of a child.
       2
         In the two instances underlying these charges, Grice was alleged to have forced a child to
touch his genitals and to have touched a child’s genitals with his own. We assume without deciding
that Grice preserved his complaint regarding the testimony about these charges.
         In addition to the two reduced charges Grice mentions in his brief, Thorne additionally
testified about an aggravated sexual-assault charge that involved an adult female complainant and
was subsequently dismissed and a rape charge that was apparently dismissed after the complainant
said Grice was not the perpetrator. Grice does not challenge on appeal the admission of testimony
regarding these additional charges.

                                                3
before the age of 15. Grice’s antisocial behaviors included his “long time (sic)
involvement with the criminal justice system,” which included terroristic threats,
multiple assaultive-type offenses, drug possession charges, and unauthorized use of a
motor vehicle and his history of not following the rules in several different contexts.
Thorne noted that while incarcerated, Grice has had twelve disciplinary cases and he
committed a second sexual offense while on probation for another sexual offense.
Grice also suffers from “cocaine use disorder.”

       Thorne said that these diagnoses led him to conclude that Grice “has a
likelihood to engage in a sexually predatory violent act.” Thorne further explained
that these diagnoses fall within the “congenital or acquired condition” that “affect[s] a
person’s emotional or volitional capacity” as required under the SVP Act. See Tex.
Health & Safety Code § 841.002(2). He further said that Grice’s combination of
sexual deviancy and antisocial characteristics increased Grice’s risk of reoffending.
Other recidivistic risk factors Thorne identified included that Grice was impulsive
and an “aggressive narcissist,” he lacked remorse and lived an unstable lifestyle, he
had had multiple victims and “extrafamilial” victims, he reported using drugs or
alcohol while offending, and he had a large number of documented antisocial
behaviors, a history of violence, and unstable social relationships and employment
history. Grice further has “traits and tendencies” related to prototypical psychopaths
but is not a “true psychopath.” Grice’s score on the Static-99R actuarial test was a
positive two, placing him in the average range for future recidivism for sex
offenders.3 Thorne opined, however, that this score did not adequately reflect Grice’s
risk of reoffending because it did not take into account many of the factors that
Thorne felt were important.

       3
         Thorne explained that the Static-99R is an instrument used in assessing how likely it is for
a person to commit a sexual offense in the future. He said that it helps to organize some of the
relevant factors but not all of them.

                                                 4
      Grice also testified at trial. He confirmed several of the convictions discussed
above as well as a felony theft conviction, a burglary conviction, and several
misdemeanor convictions, including an incident in which he beat two people with a
baseball bat. He further acknowledged being convicted of injury to a child for hitting
a five-year old girl with an extension cord and that he killed someone in self-defense.
Grice stated that he got into fights in school and assaulted a vice principal. He
admitted that he has issues with controlling his anger and violence as well as drinking
and using and selling crack cocaine. He further acknowledged having disciplinary
issues in prison, including an assault on an officer.

      After the trial court granted a partial directed verdict that Grice was a repeat
sexually violent offender, the jury found Grice was a sexually violent predator. The
trial court then ordered Grice civilly committed upon his release from the Texas
Department of Criminal Justice and mandated various requirements of that
commitment. In its final judgment, the trial court recounted the prior findings and
stated that Grice’s commitment shall continue until his behavioral abnormality had
changed to the extent he is no longer likely to engage in a predatory act of sexual
violence.

                              Evidence of Prior Charges

      In his first issue, Grice contends that the trial court erred in admitting evidence
of two extraneous offenses during Thorne’s testimony over Grice’s Rule 705(d)
objection. Specifically, Grice asserts that the probative value of the evidence in
question was outweighed by its prejudicial effect. Trial courts have extensive
discretion in evidentiary rulings, and we will uphold such rulings if they are within
the zone of reasonable disagreement. Diamond Offshore Servs. Ltd. v. Williams, 542
S.W.3d 539, 545 (Tex. 2018).

      Rule 705 concerns the admissibility of the facts or data underlying an expert’s
                                            5
opinion, and subsection (d) specifically provides as follows:

       If the underlying facts or data would otherwise be inadmissible, the
       proponent of the 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. If the court allows the proponent to disclose
       those facts or data the court must, upon timely request, restrict the
       evidence to its proper scope and instruct the jury accordingly.4
Tex. R. Evid. 705(d) (emphasis added). On appeal, Grice has not cited any
evidentiary rule that would make Thorne’s testimony otherwise inadmissible and
specifically disclaims application of Texas Rule of Evidence 403.5

       Before Thorne began his testimony regarding the two reduced charges at issue
here—two offenses that were originally charged as sexual in nature but were
subsequently reduced to nonsexual offenses—Grice’s counsel objected only on the
basis of Rule 705, arguing that “the probative value doesn’t outweigh the prejudice.”
Evidence concerning the facts underlying alleged previous sexual assaults has been
ruled admissible in civil commitment cases when it assists the jury in understanding
an expert’s testimony that the person has a behavioral abnormality. See, e.g., In re
Commitment of Talley, 522 S.W.3d 742, 748–49 (Tex. App.—Houston [1st Dist.]
2017, no pet.); In re Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—
Beaumont 2011, pet. denied). As mentioned above, we assume without deciding that


       4
          At the request of Grice’s counsel, the trial judge gave the jury a limiting instruction that
hearsay statements admitted to show the basis for the expert’s opinion should not be considered as
proof of the matters asserted. See Tex. R. Evid. 705(d).
       5
          When Thorne began his testimony regarding the underlying facts of Grice’s convictions,
not at issue here, Grice’s counsel objected to the testimony as hearsay. The State argued that the
testimony was permitted under Rule 705. After the trial judge overruled the objection, Grice’s
counsel requested a running objection to Dr. Thorne’s testimony that “would otherwise be
inadmissible without 705.” The trial judge denied the request, but agreed to read Grice’s requested
hearsay and Rule 705(d) limiting instruction as tendered. Thorne then continued his testimony as to
the convictions. The limiting instruction Grice submitted stated that the “hearsay” was being
presented to the jury “only for the purpose of showing the basis of the expert’s opinion.”

                                                  6
Grice preserved his complaint regarding Thorne’s testimony about the reduced
charges. See supra n.2. We conclude that the trial court’s decision was within the
zone of reasonable disagreement and, even if the trial court had erred, the error would
be harmless.

       No error. Grice asserts that the probative value of the evidence in question was
outweighed by its prejudicial effect. Grice insists that Thorne testified that he did not
rely on the charges in question because he had so little information about them;
therefore, the testimony is of limited probative value.6 But Grice’s premise is not
entirely accurate. While Thorne acknowledged that he did not change Grice’s score
on the Static-99R test due to these charges, Thorne explained that he tended to score
that test conservatively and the test itself did not encompass all of the factors that he
believed were relevant in the behavioral-abnormality analysis. Thorne specifically
told the court that he considered the facts underlying the two reduced charges as
“additional antisocial behavior . . . that’s a risk factor in these evaluations.” The
evidence regarding these charges was therefore of some help to the jury in
understanding the basis for Thorne’s conclusions. See, e.g. Talley, 522 S.W.3d at
748–49; Day, 342 S.W.3d at 199.

       Moreover, the prejudice, if any, of this testimony was limited by the fact that
the jury was informed that the charges had been reduced and very little information
regarding the underlying facts was adduced. The charges were only briefly mentioned
in a trial that contained a litany of allegations of criminal and other antisocial
behavior against Grice.7 Under the circumstances, the trial court’s determination that

       6
         Grice argues that the State’s only reason to elicit the testimony was to use it for a purpose
other than an explanation or support of Thorne’s opinions, i.e., to inflame the jury. This argument
was not made below.
       7
        We further note that, as requested by Grice, the trial court instructed the jury to use this
evidence only for understanding Thorne’s conclusions, not for the truth of the matters asserted.
Absent evidence to the contrary, we presume the jury followed the trial court’s instructions. See In
                                                  7
the probative value of this evidence was not outweighed by its prejudicial effect was
within the zone of reasonable disagreement. Accordingly, we cannot say that the trial
court erred in admitting this evidence. See Diamond Offshore, 542 S.W.3d at 545.

      If error, harmless. Furthermore, even if the trial court’s admission of the
extraneous offense evidence was erroneous, we conclude that the error was harmless
under the circumstances of this case. We will reverse based on an erroneous
evidentiary ruling only if, after reviewing the entire record, we conclude that the
ruling probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1(a). A successful challenge to evidentiary rulings usually requires the
complaining party to show that the judgment turns on the particular evidence
excluded or admitted. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.
2000); Harrison v. Harrison, No. 14-15-00430-CV, 2018 WL 2926268, at *14 (Tex.
App.—Houston [14th Dist.] June 12, 2018, no pet. h.).

      Here, the charges in question were only briefly mentioned with few details
given and Thorne specifically noted that this evidence did not play a major role in his
analysis, which suggests the jury would have assigned it little value as well.
Additionally, as set forth in detail above, Thorne provided ample support for his
conclusion that Grice suffers from a behavioral abnormality making him likely to
engage in a predatory act of sexual violence. Thorne, and Grice himself, testified
regarding numerous criminal and other antisocial acts committed by Grice, including
two convictions for sexual assault. Thorne further explained his diagnoses of Grice’s
mental problems and how those diagnoses and numerous other specified factors led
Thorne to his conclusion.

      Based on the volume of evidence supporting Thorne’s conclusions and the

re Commitment of Stuteville, 463 S.W.3d 543, 555 (Tex. App.—Houston [1st Dist.] 2015, pet.
denied).

                                            8
relatively brief mention of these extraneous offenses, we conclude that the judgment
did not turn on the admitted evidence and that the trial court’s ruling did not probably
cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Able, 35
S.W.3d at 617; Harrison, 2018 WL 2926268, at *14.

       For the foregoing reasons, we overrule Grice’s first issue.

                                   Partial Directed Verdict

       In his second issue, Grice contends that the trial court erred in granting a
directed verdict on the repeat-sexually-violent-offender element.8 Grice points out
that although the Rules of Civil Procedure generally permit directed verdicts in civil
cases and generally apply in SVP Act cases, the SVP Act controls in the event of a
conflict between the Rules of Civil Procedure and the act. See Tex. Health & Safety
Code § 841.146(b). Grice then asserts that there is a conflict between Texas Rule of
Civil Procedure 268, which authorizes directed verdicts, and section 841.062 of the
SVP Act, which requires a jury (when one is demanded) to find beyond a reasonable
doubt that a person is a sexually violent predator. Tex. Health & Safety Code §
841.062; Tex. R. Civ. P. 268. Grice suggests that because the SVP Act requires a
criminal burden of proof, i.e., “beyond a reasonable doubt,” the Legislature did not
intend for trial courts to grant directed verdicts in SVP Act cases.

       We recently considered and rejected substantially the same argument in In re
Commitment of Harris, 541 S.W.3d 322, 330–31 (Tex. App.—Houston [14th Dist.]
2017, no pet.). In Harris, we explained that partial directed verdicts may be granted
on the question of whether a person is a repeat sexually violent offender because the
SVP Act is civil, not punitive and it is well established in civil matters that

       8
         As stated above, one of the elements for determining whether a person is a sexually violent
predator is whether the person is a repeat sexually violent offender. Tex. Health & Safety Code §
841.003(a).

                                                 9
uncontroverted questions of fact need not and should not be submitted to a jury for
determination. Id. at 330 (citing City of Keller v. Wilson, 168 S.W.3d 802, 815 & n.52
(Tex. 2005); In re Commitment of Fisher, 164 S.W.3d 637, 645–53 (Tex. 2005); and
Clark v. Nat’l Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 822 (1947)).
We further noted that when undisputed evidence demonstrates a person is a repeat
sexually violent offender, reasonable jurors can make only one finding as to that
element, regardless of whether the burden of proof is by a preponderance of the
evidence or beyond a reasonable doubt. Id. (citing City of Keller, 168 S.W.3d at 814).
We then concluded that a trial court may grant a partial directed verdict on the repeat-
sexually-violent-offender element if there is no probative evidence raising a fact issue
to the contrary. Id.

      Here, Grice has not challenged the evidence supporting the trial court’s grant
of a partial directed verdict. Indeed, Grice’s status as a repeat sexually violent
offender was undisputed in the trial court and is undisputed on appeal. The trial court
did not err in granting a partial directed verdict on this element. See id. at 331. We
overrule Grice’s second issue.

      We affirm the trial court’s judgment and order of civil commitment.




                                       /s/        Martha Hill Jamison
                                                  Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison.




                                             10
