                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-12-00452-CV
                              _________________

         IN RE COMMITMENT OF DANIEL MARTIN MARTINEZ

________________________________________________________________________
                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-01-00975 CV
________________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Daniel Martin Martinez as a

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

(West 2010 & Supp. 2012). A jury found Martinez to be a sexually violent

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

commitment. On appeal, Martinez contends (1) the judicial construction of the

SVP statute renders it unconstitutional; (2) the trial court erred in admitting

evidence of Martinez’s murder conviction; (3) the trial court submitted an

improper jury charge; and (4) the evidence is factually insufficient to support the

jury’s verdict. We affirm the trial court’s judgment.
                                          1
                     I. The Constitutionality of the SVP Statute

      In his first issue, Martinez argues that the Texas Supreme Court’s decision in

Bohannan interpreted portions of the SVP statute in such a way as to render the

statute facially unconstitutional and in violation of the Fourteenth Amendment’s

due process clause. See generally In re Commitment of Bohannan, 388 S.W.3d

296 (Tex. 2012), cert. denied, 133 S. Ct. 2746 (2013). We have previously rejected

a similar argument. See In re Commitment of Anderson, 392 S.W.3d 878, 885 (Tex.

App.—Beaumont 2013, pet. denied). In Anderson we explained that, “Bohannan

did not eliminate any proof required by the statute for a sexually-violent-predator

finding, nor did the Supreme Court change the statute or render it

unconstitutional.” Id. We overrule Martinez’s first issue.

             II. Admissibility of Evidence of 1975 Murder Conviction

      In three issues, Martinez contends the trial court committed reversible error

when it allowed evidence of a 1975 murder conviction before the jury. In his

second issue, Martinez complains that the trial court erred in admitting a

penitentiary packet (“pen packet”) and related testimony regarding Martinez’s

1975 murder conviction because the evidence was not relevant. In his third issue,

Martinez complains that the trial court erred in admitting testimony of the details

of the 1975 murder because that testimony is inadmissible hearsay. In his fourth

                                          2
issue, Martinez argues that the evidence should have been excluded because any

probative value was clearly outweighed by its prejudicial effect on the jury. We

address these issues together, and after reviewing the record, we conclude that the

trial court did not abuse its discretion when it admitted the pen packet and allowed

the testimony related to the 1975 murder conviction.

      We review the admission of evidence under an abuse of discretion standard.

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); In re

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

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

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

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

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

238, 241-42 (Tex. 1985). A judgment will not be reversed based on the admission

or exclusion of evidence unless the appellant establishes that the trial court’s ruling

was in error and that the error was reasonably calculated to cause and probably did

cause the rendition of an improper judgment. Salazar, 2008 WL 4998273, at *2;

see also Tex. R. App. P. 44.1. Evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action



                                          3
more probable or less probable than it would be without the evidence.” Tex. R.

Evid. 401. If evidence is not relevant, it is inadmissible. Tex. R. Evid. 402.

                   A. Relevance of the 1975 Murder Conviction

      During a pretrial hearing, the State sought to introduce Martinez’s pen

packet regarding a 1975 murder conviction and asserted it was relevant to establish

that Martinez suffers from a behavioral abnormality. Martinez objected that the

prejudicial effect of the 1975 murder conviction and surrounding details clearly

outweighed any probative value and was not relevant to show Martinez suffered a

behavioral abnormality. After performing a balancing test, the trial court admitted

the evidence over Martinez’s objections, and found the evidence could be relevant

to show that Martinez suffered from a behavioral abnormality. On admitting the

pen packet, the trial court informed Martinez that if the State’s expert failed to

show how the murder conviction supported his opinions, Martinez should reassert

his objection.

      The judgment in the pen packet revealed that in 1975, Martinez pled guilty

to a murder charge in Montgomery County and received punishment of twenty-six

years confinement. Over Martinez’s objections, the trial court also admitted into

evidence Martinez’s responses to the State’s requests for admission wherein

Martinez admitted that in 1975 he pled guilty to the charge of murder in

                                          4
Montgomery County and received a twenty-six year prison sentence.1 At trial,

Martinez further testified that he was convicted of murder. He then, in response to

the State’s questions, testified to the graphic details of the events leading up to and

following the murder.

      Dr. David Self, a forensic psychiatrist, testified on behalf of the State. Dr.

Self testified that he relied upon the information surrounding Martinez’s criminal

history in forming his opinion as to whether Martinez has a behavioral

abnormality. He testified that experts in his field of study routinely rely on an

individual’s criminal history, in addition to other information, to conduct this type

of evaluation. He testified that Martinez’s criminal history and criminality were

significant because when combined with Martinez’s sexual deviancy, they place

Martinez at a higher risk to recidivate. Martinez’s counsel did not reassert his

objection at any point during Dr. Self’s testimony. Martinez’s counsel cross-


      1
         In one portion of his brief, Martinez contends that the State shifted the
burden of proof by using Martinez’s own admissions and testimony to establish
prior convictions in violation of his constitutional rights. We note that the burden
of proof was properly explained to the jury. We have previously rejected this
argument and held that if the trial court finds the responses relevant to the disputed
issues, the trial court may allow a party’s responses to the opposing party’s request
for admission to be used as evidence in SVP cases. See In re Commitment of
Hernandez, No. 09-12-00329-CV, 2013 WL 5302615, at *3 (Tex. App.—
Beaumont Sept. 19, 2013, no pet.) (mem. op.); In re Commitment of Camarillo,
No. 09-12-00304-CV, 2013 WL 2732662, at **2-3 (Tex. App.—Beaumont, June
13, 2013, no pet.) (mem. op.).
                                           5
examined Dr. Self about the details surrounding the murder conviction and Dr. Self

explained “deviancy and the history of acting on deviancy is really the core of the

behavioral abnormality[,] [b]ut then the criminality, unstable lifestyle with all that

it entails, is certainly a related factor.”

       Dr. Marisa Mauro, a clinical and forensic psychologist, testified on behalf of

Martinez. She described Martinez’s nonsexual criminal history and testified about

his murder conviction. Both Drs. Self and Mauro diagnosed Martinez with

antisocial personality disorder. Like Dr. Self, she testified that these nonsexual

criminal offenses are significant to general criminality, and “lend support . . . for

the antisocial personality disorder diagnosis[.]” She agreed that an offender’s

criminal history or general criminality is important for evaluating an offender for a

behavioral abnormality. She also agreed that the details of the offenses and the

number of convictions are important in forming an opinion as to whether the

person has a behavioral abnormality. She further agreed that Martinez’s nonsexual

criminal history is a risk factor that must be considered. We therefore conclude

that the murder conviction and facts surrounding Martinez’s nonsexual criminal

history are relevant to the issue of whether Martinez suffers from a behavioral

abnormality that predisposes him to engage in a predatory act of sexual violence.

We overrule Martinez’s second issue.

                                              6
                                     B. Hearsay

      In his third issue, Martinez complains that the trial court erred in admitting

testimony from Martinez and Dr. Self regarding the details of the murder

conviction because it was inadmissible hearsay.

      As explained above, Martinez personally testified as to the details of his

murder conviction, and the actions he took after the murder. This testimony is not

hearsay. See Tex. R. Evid. 801(d). Dr. Self testified to many of the same details

that Martinez related to the jury.

      Under Rule 705 of the Texas Rules of Evidence, an expert may disclose on

direct examination, or be required to disclose on cross-examination, the underlying

facts or data on which the expert bases an opinion. Tex. R. Evid. 705(a); In re

Commitment of Yaw, No. 09–08–042 CV, 2008 WL 5096511, at *1 (Tex. App.—

Beaumont Dec. 4, 2008, no pet.) (mem. op.). “When an expert relies upon hearsay

in forming his opinion, and it is of a type reasonably relied upon by such experts,

the jury is generally permitted to hear it.” Salazar, 2008 WL 4998273, at *4. The

trial court provided the jury with a limiting instruction, which we presume the jury

followed.2 See Tex. R. Evid. 705 (d); see In re Commitment of Day, 342 S.W.3d


      2
        The trial court instructed the jury: “[H]earsay is normally not admissible;
however, certain hearsay information contained in records and reviewed by experts
is allowed into evidence through expert testimony. Such evidence is admitted only
                                          7
193, 199 (Tex. App.—Beaumont 2011, pet. denied) (When the trial court has given

the jury a limiting instruction, we presume the jury followed the court’s

instruction.). We overrule Martinez’s third issue.

                                 C. Balancing Test

      In his fourth issue, Martinez argues that even if the details of the murder

conviction were not admitted for their truth, the trial court should have excluded

that evidence under Rules 403 and 705(d) of the Texas Rules of Evidence. Rule

705 provides in part that inadmissible evidence relied upon by an expert shall be

excluded if the danger that it will be used for some purpose “other than as

explanation or support for the expert's opinion outweighs [its] value as explanation

or support or [is] unfairly prejudicial.” Tex. R. Evid. 705(d); see also In re

Commitment of Wilson, No. 09–08–00043–CV, 2009 WL 2616921, at *9 (Tex.

App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.).

      Dr. Self explained the facts he considered in forming his opinions and how

those facts affected his evaluation of Martinez. The trial judge performed a

balancing test and could have reasonably concluded the evidence assisted the jury


for the purpose of showing the basis of the expert’s opinion.” The trial court gave
the jury a similar limiting instruction, informing the jury that such information
“was admitted only for the purpose of showing the basis of the experts’ opinion[s]
and cannot be considered as evidence to prove the truth of the matter[s] asserted.”

                                          8
in weighing the testimony and was not unfairly prejudicial. The trial court gave the

jury a limiting instruction explaining that the information reviewed by the experts

was admitted only for the purpose of showing the basis of the expert’s opinion.

We overrule Martinez’s fourth issue.

                               III. Proper Jury Charge

      In his fifth issue, Martinez argues the trial court erred in failing to submit all

of the elements under Chapter 841 to the jury. He argues the trial court erred by

granting a partial directed verdict in favor of the State on the issue of whether

Martinez is a repeat sexually violent offender. Martinez argues that because he

requested a jury trial, he was entitled to have a jury determine this issue.

      The State submitted into evidence a pen packet containing a judgment

wherein Martinez was convicted of aggravated sexual assault in 2006 and

sentenced to an eight-year prison term. The pen packet also contained a judgment

indicating that Martinez was convicted of sexual assault in 2008 and received a

three-year sentence for his crime. Martinez admitted to both of these convictions

in his responses to requests for admissions and these responses were read to the

jury. In his testimony before the jury, Martinez admitted to having these two

convictions. He admitted that he pled guilty to the 2008 sexual assault charge. He



                                           9
also testified about and admitted to the facts surrounding his 2006 aggravated

sexual assault conviction.

      “A court may instruct a verdict if no evidence of probative force raises a fact

issue on the material questions in the suit.” Prudential Ins. Co. of Am. v. Financial

Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In considering a motion for a

directed verdict, the evidence must be evaluated in a light most favorable to the

nonmovant. Id. at 82.

      The SVP statute requires the State to prove beyond a reasonable doubt that

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

841.062(a). The statute defines a “sexually violent predator” as a person who “(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 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). “‘Sexually violent offense’”

includes, among other things, an offense of sexual assault or aggravated sexual

assault. See id. § 841.002(8); see also Tex. Penal Code Ann. §§ 22.011, 22.021

(West 2011).



                                         10
      We conclude that the evidence conclusively establishes the existence of

Martinez’s prior convictions and sentences for more than one sexually violent

offense. See Tex. Health & Safety Code Ann. § 841.003(b). Therefore, there was

no fact question for the jury to decide on this issue. The trial court did not err in

granting a directed verdict on this element. See In re Commitment of Scott, No. 09-

11-00555-CV, 2012 WL 5289333, at *2 (Tex. App.—Beaumont Oct. 25, 2012, no

pet.) (mem. op.). We overrule Martinez’s fifth issue.

      In his sixth issue, Martinez argues that the trial court erred in refusing to

subdivide the jury question into three parts. Martinez proposed that the first

question to the jury should be, “Do you find beyond a reasonable doubt that Daniel

Martin Martinez is a repeat violent sex offender, yes or no?” The second question

asked, “Do you find beyond a reasonable doubt that Daniel Martin Martinez

suffers from a behavioral abnormality, yes or no?”, and the third question “If a

behavioral abnormality does exist, do you find beyond a reasonable doubt that the

behavioral abnormality makes Daniel Martin Martinez likely to engage in a

predatory act of sexual violence, yes or no?” Martinez acknowledges that the trial

court should submit the questions in broad-form whenever feasible, but argues that

Martinez was entitled to have the questions subdivided to clarify the issues.



                                         11
       We have repeatedly addressed this issue and have held that the trial court

may, within its discretion, submit the controlling issue in a single question and

instruct the jury regarding “behavioral abnormality” in a definition. See In re

Commitment of Smith, No. 09-12-00001-CV, 2013 WL 4279647, at *4 (Tex.

App.—Beaumont Aug. 15, 2013, no pet.) (mem. op.); In re Commitment of Bath,

No. 09-11-00559-CV, 2012 WL 3860631, at *5 (Tex. App.—Beaumont Sept. 6,

2012, no pet.) (mem. op.); In re Commitment of Elkins, No. 09-10-00557-CV, 2012

WL 2849164, at *3 (Tex. App.—Beaumont July 12, 2012, no pet.) (mem. op.); In

re Commitment of Campbell, No. 09-11-00407-CV, 2012 WL 2451620, at **7-8

(Tex. App.—Beaumont June 28, 2012, pet. denied) (mem. op.); In re Commitment

of Reed, No. 09-11-00484-CV, 2012 WL 1072255, at *3 (Tex. App.—Beaumont

Mar. 29, 2012, no pet.) (mem. op.). In cases governed by a statute, the jury charge

should track the language of the statutory provision as closely as possible. See

Toennies v. Quantum Chem. Corp., 998 S.W.2d 374, 377 (Tex. App.—Houston

[1st Dist.] 1999), aff’d, 47 S.W.3d 473 (Tex. 2001). “[W]henever feasible,” the

trial court must “submit the cause upon broad-form questions.” Tex. R. Civ. P.

277.

       The Supreme Court has held that “[t]he condition and predisposition are one

and the same.” Bohannan, 388 S.W.3d at 302-03. “[W]hether a person ‘suffers

                                        12
from a behavioral abnormality that makes the person likely to engage in a

predatory act of sexual violence’ is a single unified issue.” Id. at 303. We do not

find the trial court erred in submitting the jury charge in this case when the charge

tracked the language of the statute and was submitted in a broad-form question

with definitions to assist the jury in answering the question of whether Martinez

suffers from a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. See Tex. Health & Safety Code Ann. §

841.003(a)(2). We overrule Martinez’s sixth issue.

                              IV. Factual Sufficiency

      In his seventh issue, Martinez complains that the evidence is factually

insufficient to support a finding beyond a reasonable doubt that he is a sexually

violent predator. As discussed above, the SVP statute requires the State to prove

beyond a reasonable doubt that the “person is a sexually violent predator[,]” which

is defined as a person who “(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);

841.062(a). According to the statute, a “‘[b]ehavioral 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

                                         13
the extent that the person becomes a menace to the health and safety of another

person.” Id. § 841.002(2). In evaluating whether the evidence is factually sufficient

in an SVP commitment case, we must weigh the evidence to determine if a verdict

that is supported by legally sufficient evidence nevertheless reflects a risk of

injustice that compels ordering a new trial. Day, 342 S.W.3d at 213. Conclusory or

speculative testimony is not relevant evidence because it does not tend to make the

existence of a material fact more or less probable. City of San Antonio v. Pollock,

284 S.W.3d 809, 816 (Tex. 2009). Additionally, “[b]are, baseless opinions will not

support a judgment[.]” Id.

      Martinez argues the State failed to present sufficient evidence that (1) his

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

violence; (2) he has a predisposition to re-offend or a serious difficulty controlling

his behavior; and (3) that he is likely to recidivate in the future. We disagree. As

explained above, the State conclusively proved that Martinez is a repeat sexually

violent offender. At trial Martinez testified to some of the details of his sexual

assaults. He admitted that the victim in his aggravated sexual assault charge was a

mentally ill woman. He admitted to the graphic details of this assault, including

that while he was in the middle of assaulting her, he told her that he had just gotten

out of prison and would probably go back to prison for life. He admitted to

                                         14
covering her face and mouth until she passed out, and then sexually assaulting her

while she was unconscious. He testified that up until a month before his trial, he

had never requested any kind of sex offender treatment. Dr. Self testified that it is

his opinion that Martinez has a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. His methodology included reviewing

records and conducting an interview with Martinez. He testified that Dr. Jason

Dunham assessed Martinez and reported that he too believed Martinez has a

behavioral abnormality and has a moderate to high level of risk for reoffending.

Based on his full assessment of Martinez, Dr. Self placed Martinez at high-

moderate to high risk of re-offense.

      Dr. Self diagnosed Martinez with paraphilia not otherwise specified, non-

consenting type; poly-substance abuse/dependence with focus on alcohol,

marijuana, cocaine, and crack cocaine; and a provisional diagnosis of major

depression that is recurrent with psychotic features. Dr. Self testified that

Martinez’s diagnoses increase his risk of recidivism.

      Dr. Self identified Martinez’s risk factors for reoffending. He testified that

Martinez is at greater risk because he had a stranger victim and his victim pool has

a broad range of ages. Dr. Self testified that Martinez’s sexual deviance increases

his risk of reoffending. He explained that his paraphilia is manifested by a “taste

                                         15
for coercive or nonconsenting sex[.]” This condition is a chronic lifelong

condition. Dr. Self explained that Martinez having this condition, coupled with the

fact that he has acted on his inappropriate sexual urges, demonstrates that he is

tolerant of sexual assault, which increases his risk for reoffending. Dr. Self also

identified lifestyle instability or criminality as another risk category. Dr. Self

explained that Martinez had severe childhood behavioral difficulties and a long list

of nonsexual offenses, including theft, burglary, drug crimes, DWI, and murder.

Dr. Self explained that Martinez has criminal versatility, which is a hallmark of a

psychopath. He testified that Martinez has fifteen or more arrests. Dr. Self

identified a study that indicated that anyone with five or more arrests is at very

high risk for recidivism. Dr. Self testified that Martinez told him he would only be

interested in sex offender treatment if it would help him with parole.

      Dr. Self also considered positive factors that might lower Martinez’s risk of

reoffending. He acknowledged that Martinez’s age diminishes his risk some, but

not very much. He explained that while Martinez is fifty-seven years old, he was

forty-eight when he committed his last serious offense. Dr. Self found no other

factors that lowered Martinez’s risk.

      Dr. Mauro also interviewed Martinez and reviewed records to aid her in

determining whether Martinez suffers from a behavioral abnormality. Dr. Mauro

                                         16
testified that she does not believe that Martinez suffers from a behavioral

abnormality or has a paraphilia. She testified that she does not see any evidence

that Martinez has had serious difficulty controlling his emotional or volitional

capacity. Instead of a pattern of sexually deviant behavior, Dr. Mauro testified that

Martinez’s crimes were just isolated incidents where Martinez was under the

influence of a substance. She did give him a diagnosis of antisocial personality

disorder, but she testified that she sees signs in Martinez that he is starting to age-

out of this disorder. She also testified that she did not find a significant relationship

between this diagnosis and committing sexually violent acts. She ruled out a

diagnosis of polysubstance dependence. Dr. Mauro tested Martinez with the PCL-

R to measure psychopathy and recalled that he scored twenty-seven which

indicates mixed psychopathy. Nevertheless, Dr. Mauro does not believe there is a

significant association between psychopathy and recidivism. To measure

recidivism of sexual offending, she performed the Static-99R and the Static-

2002R. On the Static-99R, she scored Martinez at a five, which places him in the

moderate to high range of recidivism. On the Static-2002R, she scored Martinez at

a four, which means his risk is low to moderate.

      Dr. Mauro identified some risk factors that elevate Martinez’s risk of

recidivism. She also identified some protective factors that might reduce his risk,

                                           17
including her opinion that he does not have a paraphilia, he is able to establish

long-term relationships, he has family support, he has some job skills, and he has

some education. She testified that these factors mitigate Martinez’s risk “[a] little

bit.” But, she also admitted that he has not had contact with his family in several

years, he has not had stable employment, he has quit a number of jobs, and at one

point he earned a living by selling crack. She acknowledged that Martinez has

exhibited sexually deviant behavior and agreed that Martinez is a pathological liar.

Finally, she too diagnosed him with antisocial personality disorder.

      The jury determines the credibility of the witnesses and the weight to be

given their testimony, and whether to believe some testimony and disbelieve other

testimony. In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—

Beaumont 2002, pet. denied) (mem. op.). The jury may draw reasonable inferences

from the evidence. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App.

2000). The jury can infer Martinez’s current difficulty controlling his behavior not

just from his past behavior, but also from his own testimony, and that of Dr. Self’s

testimony. See In re Commitment of Soto, No. 09-11-00600-CV, 2013 WL

2732082, at *3 (Tex. App.—Beaumont June 13, 2013, no pet.) (mem. op.); In re

Commitment of Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *4 (Tex.

App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.). The jury heard evidence of

                                         18
Martinez’s offenses, his testimony, and the expert’s testimony regarding his risk

for reoffending. Considering all the evidence, the record does not reflect a risk of

injustice that compels granting a new trial. See Day, 342 S.W.3d at 213. The

evidence is factually sufficient to support the jury’s verdict. We overrule

Martinez’s seventh issue.

       Having overruled all of Martinez’s issues, we affirm the judgment of the

trial court.

       AFFIRMED.

                                             ______________________________
                                                    CHARLES KREGER
                                                          Justice
Submitted on July 1, 2013
Opinion Delivered October 31, 2013

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




                                        19
