                                      In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-11-00593-CV
                              _________________


                    IN RE COMMITMENT OF SETH HILL

________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 08-01-00790 CV
________________________________________________________________________

                           MEMORANDUM OPINION

      The State of Texas petitioned for Seth Hill‟s commitment after it received a

psychologist‟s report that Hill is a sexually violent predator. See Tex. Health &

Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP Statute).

Following a trial, a jury found that Hill suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. The trial court

rendered a final judgment and an order of civil commitment. On appeal, Hill raises

14 issues challenging the judgment. We find Hill‟s issues are without merit and

affirm the trial court‟s judgment.

                                         1
                        I.     Admissibility of Testimony

      The State designated three experts to testify at trial: A.P. Merrillat, a

fingerprint analyst; Dr. Timothy Proctor, a board-certified forensic psychologist

and a licensed sex offender treatment provider; and Dr. Michael R. Arambula, a

board-certified forensic psychiatrist. Hill designated Dr. John Tennison, who is a

licensed psychiatrist. Hill raises issues related to each expert‟s testimony, as well

as issues related to his own testimony. We address the issues as they correspond to

each witness below.

A. Testimony of A.P. Merrillat

      In issue one, Hill argues that the trial court erred in refusing to allow him to

cross-examine the State‟s fingerprint expert, A.P. Merrillat, on the prison

conditions Merrillat observed while working for the Special Prosecution Unit

investigating crimes that occur within prisons. The State called Hill as its first

witness and questioned him extensively regarding his sexual activity and numerous

sexual misconducts during his term of imprisonment. In an attempt to rebut this

evidence, Hill‟s counsel attempted to cross-examine Merrillat “about conditions

that [Hill] would have faced inside the prison system, his access to various

temptations, stressors, triggers[.]” The State objected and argued that this

testimony was not relevant, and that Merrillat was only designated as a fingerprint

                                          2
expert. The trial court ruled that Hill‟s counsel could ask foundational questions as

to whether Merrillat had dealings with Hill personally, and if so, Merrillat could

testify as to the things he personally witnessed. The trial court allowed counsel to

pursue the matter with Merrillat in an offer of proof.

      In the offer of proof, Merrillat testified generally regarding the availability

of drugs and alcohol in prison, as well as the types of sexual activities that occur in

the prison environment. He testified that it is a violation of prison policy for

inmates to engage in sexual activity. He agreed that the disciplinary process in

prison is dependent on guards making allegations, which are sometimes untrue or

exaggerated.    He also testified that inmates make false accusations.         At the

conclusion of Hill‟s offer, the trial court sustained the State‟s objection.

      We review the trial court‟s determination to exclude Merrillat‟s proffered

testimony for an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537-38

(Tex. Crim. App. 2002). Rule 701 of the Texas Rules of Evidence provide the

guidelines for opinion testimony by lay witnesses. Tex. R. Evid. 701. It requires

opinion testimony to be rationally based on the witness‟s perception and helpful to

a clear understanding of the witness‟s testimony or the determination of a fact in

issue. Id. “Both lay and expert witnesses can offer opinion testimony.” Osbourn,

92 S.W.3d at 535. “A person with specialized knowledge may testify about his or

                                           3
her own observations under Rule 701 and may also testify about the theories, facts

and data used in his or her area of expertise under Rule 702.” Id. at 536. An expert

may provide testimony under Rule 701 “„if the witness‟s testimony and opinion are

based upon firsthand knowledge.‟” Id. at 536 (quoting Texas Rules of Evidence

Manual art. VII-6-7 (6th ed. 2002)).

      The trial judge ruled that Merrillat‟s testimony regarding the prison

environment and the propensity of false allegations of crimes and other violations

committed therein, were not based on Merrillat‟s personal knowledge, but rather

were based on hearsay. Because Merrillat‟s observations about the types of

activities that occur in the prison environment are not based on a scientific theory,

his testimony is admissible only as a lay opinion, if it meets the requirements of

Rule 701. If Merrillat perceived the events and then formed an opinion that a

reasonable person could draw from the facts, the first part of Rule 701 is satisfied.

See Tex. R. Evid. 701.

      It is not entirely clear from Merrillat‟s testimony or the offer of proof

whether he personally perceived the events forming the basis of his opinions, or

whether he obtained information regarding the events second hand. Regardless,

what is clear is that Merrillat‟s testimony did not relate specifically to the prisons

in which Hill had been incarcerated. Therefore, Merrillat‟s testimony does not

                                          4
meet this requirement of Rule 701. Moreover, the same testimony defense counsel

sought to elicit from Merrillat regarding the prison conditions, defense counsel was

able to ask without objection of Dr. Proctor, therefore any error would be harmless.

See Tex. R. App. P. 44.1(a). Finding no abuse of discretion, we overrule this issue.

B. Testimony of Dr. Thomas Proctor

      In two issues, Hill claims the trial court abused its discretion in denying him

the right to fully cross-examine Proctor. In his second issue, Hill claims that he

was denied the right to cross-examine Proctor regarding his understanding of the

law as it informs his opinion that Hill suffers from a behavioral abnormality. In his

fourth issue, Hill argues the trial court denied him the right to cross-examine

Proctor on the rate of error for his methodology in determining whether a person is

likely to sexually recidivate.

      Rule 702 of the Texas Rules of Evidence provides that “[i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form

of an opinion or otherwise.” Tex. R. Evid. 702. An expert may base his or her

opinions or inferences on facts or data that are of a type reasonably relied upon by

experts in the particular field. Tex. R. Evid. 703. An expert may be required to

                                         5
disclose on cross-examination the underlying facts or data that support his or her

opinions or inferences in a case. Tex. R. Evid. 705(a). The trial court has discretion

to restrict cross-examination to matters shown to be relevant, as well as to avoid

the needless consumption of time. See Tex. R. Evid. 611(a)(1)(2), (b).

1. Cross-Examination Regarding the SVP Statute and Case Law

      Hill‟s counsel sought to specifically question Proctor about his

understanding and familiarity with the SVP statute and the case law applying the

statute. Hill‟s purpose in pursuing this line of questioning appears to be to

determine the extent to which Proctor‟s understanding of the SVP statute and case

law formed the basis of his opinions in this case. In his second issue, Hill argues

the trial court abused its discretion when it failed to allow him to question Proctor

on the court of appeals‟ opinions interpreting the statute.

      Proctor testified that he is familiar with the definition of behavioral

abnormality as the term is used in Texas law. He further explained:

      [A] behavioral abnormality is not a medical term or a psychological or
      psychiatric term. It doesn‟t come out of our books as mental health
      professionals or health care professionals. It is something that is
      defined in the Health and Safety Code, which is part of the law in
      Texas. And it is defined as a congenital or acquired condition that, by
      affecting a person‟s emotional or volitional capacity, predisposes a
      person to [] commit a sexually violent act to the extent that they
      become a menace to the health and safety of another person.


                                          6
Essentially, a person with a behavioral abnormality places or potentially places

other people‟s health and safety at a significant risk.     Proctor testified that a

“[p]redatory act is also defined within the Health and Safety Code as an act

directed toward individuals, including family members, for the primary purpose of

victimization.” See Tex. Health & Safety Code Ann. §841.002(5).

      Proctor testified that in formulating his determination that Hill had a

behavioral abnormality, he considered the SVP statute.         He testified that he

believed that someone who meets the statutory definition of having a behavioral

abnormality would typically be different from the routine sex offender. Proctor

fully explained his methodology. Proctor explained that to him the word likely

means “probable . . . something . . . beyond a mere possibility or potential for

harm.”

      Hill later made an offer of proof with Proctor regarding those questions the

trial court refused to allow him to ask concerning specific appellate court opinions.

However, Proctor‟s answer to each question he was asked during the offer of proof

indicated that he did not know the details related to those court opinions. The offer

of proof does not provide us with “what was expected to be proved by those

answers.” See In re Commitment of Day, 342 S.W.3d 193, 199-200 (Tex. App.—

Beaumont 2011, pet. denied). Hill‟s offer of proof does not persuade us that the

                                         7
information he sought to develop before the jury was significant to Proctor‟s

opinions on the dispositive issue of whether Hill has a behavioral abnormality and

is likely to reoffend. Proctor fully explained the bases for his opinion that Hill has

a behavioral abnormality that makes him likely to commit a predatory act of sexual

violence. The questions Hill was not allowed to ask do not address a fact of

consequence that would have made Proctor‟s prognosis more or less probable. See

generally Tex. R. Evid. 401 (“„Relevant evidence‟ means evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.”); Tex. R. Evid. 402 (“Evidence which is not relevant is

inadmissible.”). Therefore, we conclude the trial court did not abuse its discretion

and overrule issue two as it concerns the testimony of Proctor.

2. Cross-Examination Regarding Rate of Error

      In issue four, Hill argues that the trial court abused its discretion when it

denied him the right to cross-examine Proctor on the rate of error for his

methodology in determining whether a person is likely to sexually recidivate.

Hill‟s counsel did not make an offer of proof or identify what evidence he would

have offered. Preservation of a complaint is a prerequisite for appellate review.

Tex. R. App. P. 33.1(a). Error may be predicated on a ruling that excludes a party‟s

                                          8
evidence only if the substance of the evidence was made known to the court by

offer. Tex. R. Evid. 103(a)(2); Ludlow v. DeBerry, 959 S.W.2d 265, 269-70 (Tex.

App.—Houston [14th Dist.] 1997, no writ). Without an offer of proof, we are

unable to determine whether the trial court‟s exclusion of this testimony was

erroneous and harmful. See Tex. R. App. P. 44.1(a); see also Bobbora v. Unitrin

Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.). Because Hill

has failed to make an offer of proof regarding Proctor‟s rate of error, his complaint

has been waived.

C. Testimony of Dr. Michael Arambula

      Hill raises a number of challenges related to Arambula‟s testimony. In his

seventh issue, Hill challenges the reliability of Arambula‟s testimony. In Hill‟s

second, third, fourth, fifth and sixth issues, he argues that the trial court abused its

discretion when it denied him the right to fully cross-examine Arambula.

1. Motion to Strike Arambula‟s Testimony

      In his seventh issue, Hill challenges the trial court‟s denial of his motion to

strike the testimony of Arambula. Hill moved to strike Arambula‟s testimony

because “he testified that it is not possible for a person to have a behavior[al]

abnormality without being likely to engage in a predatory act of sexual violence”

and that “behavior[al] abnormality and likelihood to reoffend are not separate

                                           9
issues in the Health & Safety Code.” Hill‟s counsel argued that these “two things

establish that [Arambula] does not understand the statute and, therefore, his

opinions are unreliable.” The trial court overruled Hill‟s request.

      Arambula testified that an evaluation to determine the presence of a

behavioral abnormality is a sexual dangerousness evaluation. He explained that he

looks at a “multitude of records . . . from which [he] determine[s] whether

someone has a mental condition that poses sexual dangerousness to the

community.” He looks at risk factors that are present within the records he reviews

and his interview of the person, and then determines whether the individual is

“significantly sexually dangerous to meet the definition of behavioral

abnormality.” Arambula uses the statutory definition of behavioral abnormality in

conducting his assessments. He diagnosed Hill with paraphilia, not otherwise

specified with features of sadism and exhibitionism; polysubstance abuse in

remission; and personality disorder, not otherwise specified with antisocial

features. He explained that Hill‟s paraphilia NOS diagnosis was significant in his

assessment of Hill because it is a deviant sexual condition, at the core of which is

sexual dangerousness. He explained that Hill‟s polysubstance condition combines

badly with paraphilia NOS because substance abuse impairs a person‟s judgment.




                                          10
Arambula testified that in his opinion, Hill has a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence.

      Hill argues that the trial court should have stricken Arambula‟s testimony

because Arambula misunderstands the SVP statute. Hill advocates for an

interpretation of the statute that the Texas Supreme Court expressly rejected in In

re Commitment of Bohannan, No. 10-0605, 2012 WL 3800317 (Tex. Aug. 31,

2012) (not yet released for publication). Hill argues that Arambula‟s testimony is

not reliable because “Arambula improperly conflated the „behavioral abnormality‟

and „propensity‟ inquiries into one[.]” However, in Bohannan, the Supreme Court

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.” Bohannan, 2012 WL 3800317 at *5 (footnote omitted).

      During its closing argument, the State argued to the jury that this case was

about whether “Hill suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence[]” and the State defined “behavioral

abnormality” as it is written in the statute.      Additionally, the definition of

“behavioral abnormality” and “predatory act” contained in the trial court‟s charge

to the jury tracked the SVP statute. See Tex. Health & Safety Code Ann. §

841.002(2), (5). The jury charge is consistent with the Supreme Court‟s ruling in

                                         11
Bohannan and we presume the jury followed the trial court‟s instructions. See

Bohannan, 2012 WL 3800317, at *4-5; see also Golden Eagle Archery, Inc. v.

Jackson, 116 S.W.3d 757, 771 (Tex. 2003). We conclude the trial court did not err

in denying Hill‟s motion to strike Arambula‟s testimony and overrule issue seven.

2. Cross-Examination Regarding the SVP Statute and Case Law

      In his second issue, Hill argues that he was denied the right to cross-examine

Arambula regarding his understanding of the SVP statute as it informs his opinion

that Hill suffers from a behavioral abnormality. Hill‟s counsel specifically sought

to question Arambula regarding his understanding of the opinions that the courts of

appeals have written concerning the SVP statute.         The trial court ruled this

testimony was inadmissible.

      Arambula testified that he was familiar with the law governing sexually

violent predators. He explained that he understands the rulings made by the courts

of appeals as a doctor, but not as an attorney. He agreed with Hill‟s counsel that it

was important for him to understand the relevant statutes and court rulings so he

would know when he needed the assistance of an attorney for a better

understanding. Arambula testified that he understands “behavioral abnormality” as:

      essentially a sexual dangerousness evaluation where it is [his] job to
      accumulate information and determine if somebody has a mental
      condition which makes them sexually dangerous, and then to further
      collect more information about their history and look at risk factors
                                         12
      that have emerged from research in the literature. And then overall to
      determine whether that person is significantly dangerous to commit
      another sexually violent act.

He explained that behavioral abnormality is not a medical term or diagnosis, but a

legal term. He testified that using his medical expertise, he translates his clinical

findings into the statutory definition of behavioral abnormality. He stated that he

stays up-to-date on the standards for behavioral abnormality evaluations by

looking at some Texas case law. He described the process he generally uses in

evaluating individuals for a behavioral abnormality, and specifically explained

what he considered in determining Hill had a behavioral abnormality.

      Hill‟s counsel failed to make an offer of proof with Arambula on this issue.

The State argues that Hill did not preserve this issue for review. Hill responds that

he did not need to make an offer of proof to preserve error because the substance

of the testimony he sought was apparent from the context of his questions.

      Error may not be based on a ruling that excludes evidence unless, “the

substance of the evidence was made known to the court by offer, or was apparent

from the context within which questions were asked.” Tex. R. Evid. 103(a)(2);

Tex. R. App. P. 33.1(a)(1). “To preserve error concerning the exclusion of

evidence, the complaining party must actually offer the evidence and secure an

adverse ruling from the court.” Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El

                                         13
Paso 2002, no pet.). An appellate court may be able to “discern from the record

the nature of the evidence and the propriety of the trial court‟s ruling,” but without

an offer of proof, the reviewing court cannot determine whether exclusion of the

evidence was harmful. Id. Hill‟s counsel did not make an offer of proof with

Arambula regarding this issue, nor did he identify the answers he expected to

receive from Arambula. Without an offer of proof, we cannot determine whether

the trial court excluded relevant examination or whether the exclusion of the

evidence was harmful. See id.

3. Cross-Examination Regarding Hill‟s Sex-Offender Treatment

      In his third issue, Hill argues that the trial court abused its discretion and

committed reversible error when it excluded testimony from Arambula regarding

Hill‟s sex-offender treatment. The State argues that Hill failed to preserve error for

review of this issue by failing to make an offer of proof showing how Arambula

would have answered the proffered questions.

      Hill‟s counsel sought to ask Arambula whether he knew if Hill had spoken

to Dr. Edd about continuing treatment in the event Hill was no longer compelled to

be in mandatory treatment. The trial court sustained the State‟s relevance objection

to these questions. Without an offer of proof, we cannot determine whether the

exclusion of the evidence was harmful. See id.

                                         14
4. Cross-Examination Regarding Rate of Error

      In issue four, Hill argues that the trial court abused its discretion when it

denied him the right to cross-examine Arambula on the rate of error for his

methodology in determining whether a person is likely to sexually recidivate. Hill

made an offer of proof.

      Hill made an offer of proof during which he questioned Arambula about

statistics published on a website regarding the rate of recidivism of those

individuals civilly committed as a sexually violent predators. Arambula testified

that he would not be surprised if the statistics indicated that no person in the State

of Texas who has been judicially determined to be a sexually violent predator has

engaged in a predatory act of sexual violence after commitment. Arambula

explained that this is possible because of the structured environment that those

committed are required to reside in as part of their continued treatment. At the

conclusion of the offer of proof, the trial court sustained the State‟s objections.

      We review the exclusion of expert testimony for an abuse of discretion. Day,

342 S.W.3d at 218 (citing K-mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.

2000)). A trial court abuses its discretion by excluding expert testimony that is

relevant to the issues in the case and is based on a reliable foundation. State v.

Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). The trial court‟s

                                          15
erroneous exclusion of evidence constitutes reversible error when the complaining

party shows that the trial court committed error and the error probably caused the

rendition of an improper judgment. Id.; see also Tex. R. App. P. 44.1(a). “[T]he

exclusion or admission [of evidence] is likely harmless if the evidence was

cumulative, or the rest of the evidence was so one-sided that the error likely made

no difference in the judgment.” Id.

      We conclude that the proffered testimony was relevant, but that it goes to the

weight to be given Arambula‟s opinion and not to the admissibility of his

testimony. However, Hill has not shown that such error was harmful. Arambula

testified regarding his training, experience and credentials. He testified that his

methodology in evaluating Hill was in accordance with his training and experience

as a psychiatrist and is the accepted method for conducting a behavioral

abnormality assessment in his field.      Arambula testified that the records he

reviewed in this case are typically relied on by experts in his field for conducting

this type of assessment. While Hill proffered the post-commitment statistics in an

attempt to discredit Arambula‟s reliability, Arambula explained that the

circumstances in which committed individuals are placed minimizes their

opportunities for reoffending. Given Arambula‟s extensive testimony regarding his

credentials, coupled with his testimony supporting his methodology, assuming

                                        16
error, we conclude the error likely made no difference in the jury‟s verdict. See id.

We overrule this issue.

5. Cross-Examination of Alleged Incident of Bad Behavior

      Hill argues the trial court abused its discretion in refusing to allow him to

cross-examine Arambula “regarding an incident at the office of [Hill]‟s sex-

offender treatment provider.” The State responds that Hill failed to preserve this

issue for review.

      During direct examination, the State asked Proctor about an incident

involving Hill. Proctor explained that Hill‟s treatment provider noted an incident

where Hill was supposed to be at his office, but the provider could not locate him.

Hill was missing for about 15 minutes. When Hill eventually arrived, he explained

that he had gone to smoke a cigarette and wait for his fiancée. However, the

provider had previously looked outside for Hill and had not seen him. Defense

counsel chose not to question Proctor about this matter.

      During cross-examination, Arambula testified that he did not believe that

Hill had been able to control his behavior for the last two-and-a-half years. He

explained that Hill had not followed the rules. Arambula testified that Hill had

been “missing in action” at his treatment provider‟s office earlier in the year, had

taken off his ankle monitor, and had been caught with contraband.           Defense

                                         17
counsel questioned Arambula regarding his knowledge of Hill‟s treatment

provider‟s concern for his patients‟ activities inside his building when they are not

in his office receiving treatment. The State objected based on relevance, and the

trial court sustained the objection. Hill‟s counsel failed to make an offer of proof,

and did not identify the answers he expected to receive from Arambula to the

proffered questions. Without an offer of proof, we cannot determine whether the

exclusion of the evidence was harmful. Perez, 74 S.W.3d at 66-67. We overrule

this issue with regard to testimony from Arambula.

6.   Cross-Examination     Regarding     Arambula‟s     Opinions     of   Tennison‟s

Methodology

      Hill argues that the trial court abused its discretion in refusing to allow him

to cross-examine Arambula on the methodology used by Hill‟s psychiatric expert,

Tennison.   Hill‟s counsel attempted to question Arambula regarding case law

referenced in Tennison‟s report that Tennison relied on in conducting his analysis.

The State argues that these questions did not address Tennison‟s methodology, that

Hill‟s offer of proof was unrelated to the excluded testimony, and the trial court did

not err by refusing to allow appellant to cross-examine Arambula regarding

appellate law.




                                         18
      During Hill‟s offer of proof, Arambula acknowledged that one page of

Tennison‟s report referenced case law from the Ninth Court of Appeals and the

United States Supreme Court. Nothing else asked during the offer of proof related

to Tennison‟s report or his methodology. The offer of proof fails to establish that

Hill was harmed by the trial court‟s refusal to allow Hill to cross-examine

Arambula on Tennison‟s methodology. We overrule this issue.

D. Testimony of Dr. John Tennison

1. Exclusion of Testimony Related to Methodology

      In issue eight, Hill argues that the trial court committed reversible error in

not allowing Tennison to fully explain his methodology to the jury, which includes

his analysis of appellate court opinions. Hill‟s counsel made an offer of proof.

While the trial court did not allow Tennison to discuss specific court opinions,

Tennison did testify at length about his methodology.

      Tennison testified that “[f]orensic psychiatry is simply a term that applies to

any form of psychiatry that interacts with the legal system in some way.” He

testified that he is qualified to determine whether Hill has a behavioral abnormality

through his general training, his ability to read the sexually violent predator statute,

and his ability to apply a legal definition to an individual whom he is evaluating.

Tennison testified that he has extensively studied the methodology used in

                                          19
conducting these types of evaluations from various journals and manuals. He also

indicated that he has had training in the Static-99 and the PCL-R. He testified he

has also received training in applying legal definitions to psychiatrically relevant

forensic questions. He clarified that he is not an attorney. However, he testified

that it is necessary for him to be able to read and understand the SVP statute

because he is “being asked to give a professional opinion as to whether [Hill]

fulfills a statutory definition[.]” He explained that if an expert could not read a

statute and make sense of what it says, then the expert would be unable to give an

opinion as to whether the statute applies to the individual he is evaluating. He

further testified that it is important for a forensic psychiatrist to be able to follow

and understand changes in statutes and that “[c]ase law constrains the way that [a

forensic psychiatrist] can understand the statute.”

      He explained that as part of his methodology he analyzes a statute “piece-

by-piece[.]” He then described in detail the steps he took in evaluating Hill. He

reviewed Hill‟s legal records, his TDCJ records, and other evaluations that had

been done on Hill. He testified that he relied on the information in these records.

He then evaluated Hill in person.

      During his Static-99 training in 2009, he received the new sexual recidivism

risk tables, which Tennison testified demonstrate that Hill is not likely to engage in

                                          20
a predatory act of sexual violence. He testified that the Static-99 scoring calculates

probabilities of risks. He explained:

      In the case of [Hill], those are all--you have to use your clinical
      judgment to decide where along a range of risk probabilities someone
      falls. But whether you look at the least risky or all the way up to the
      most risky, [Hill‟s] rate of recidivism based on the Static-99--not even
      considering the law requirements, which are over and beyond that--
      just looking at the Static-99 and doing a generic risk assessment--even
      if there wasn‟t a behavior[al] abnormality would show that his risk of
      recidivism is well below 50 percent or at a level that could be
      considered more likely than not.

Tennison testified that based on the legal definitions of behavioral abnormality and

sexually violent predator, his education, training, and research, Hill‟s records, and

his interview with Hill, Tennison does not believe that Hill has a behavioral

abnormality.

      Given our review of the entire record, Hill‟s offer of proof does not persuade

us that the information he sought to develop before the jury relating to the specifics

of case law was significant to Tennison‟s opinions on the dispositive issue of

whether Hill has a behavioral abnormality. Tennison was able to explain his

analysis, and he fully explored why he felt that Hill does not have a behavioral

abnormality and is not likely to commit a predatory act of sexual violence. We

further note that an expert witness generally may not testify regarding his opinion

on a pure question of law. Upjohn Co. v. Rylander, 38 S.W.3d 600, 611 (Tex.

                                         21
App.—Austin 2000, pet. denied) (stating that matters of statutory construction are

questions of law for the Court to decide and an expert witness may not testify

regarding an opinion on a pure question of law). We conclude the trial court did

not abuse its discretion and overrule issue eight as it concerns the testimony of

Tennison.

2. Exclusion of Testimony Related to Hill‟s Ability to Control His Behavior

      In issue nine, Hill argues that the trial court committed reversible error by

excluding Tennison‟s testimony regarding Hill‟s ability to control his behavior.

Specifically, Hill complains that the trial court erred when it excluded Tennison‟s

testimony which compared Hill‟s relative ability to control his behavior to that of a

typical repeat offender.

      On redirect, Hill‟s counsel continued to pursue this line of questioning, but

the trial court again sustained the State‟s objection, indicating that the comparisons

were not relevant. Hill made an offer of proof:

      Q.     Okay. When you were considering whether [Hill] has a
             significant difficulty controlling his behavior, did you make a
             comparison between his ability to control his behavior and the
             ability of a typical repeat offender‟s ability to control their
             behavior?

      A.     Yes. That was a serious part of my consideration.

      Q.     Did you find a difference?

                                          22
      A.     Well, yes. I regard Mr. Hill as having the ability to control his
             behavior based on his innate condition. He does not--not only
             does he not have a chance of recidivism in the general sexual
             sense, he also doesn‟t have a high probability or likelihood of
             recidivism from a behavior[al] abnormality as defined by the
             statute.

Hill argues that this testimony directly addresses one of the prerequisites for

involuntary civil commitment. The State argues that Tennison never explained in

the offer of proof what distinguishes Hill from a typical repeat offender, other than

that Tennison believed Hill could control his behavior. The State explains that it is

the existence of the behavioral abnormality that makes Hill different.

      The record demonstrates that Tennison testified that he believed that Hill did

not have a behavioral abnormality and that Hill could control his behavior. The

record further reflects that Tennison was able to support his opinions through

testimony explaining his basis. We are not persuaded that Hill was harmed by the

trial court‟s ruling excluding the testimony at issue. We find that the proffered

testimony was cumulative and, therefore, its exclusion would be harmless error.

See Tex. R. App. P. 44.1, see Cent. Expressway Sign Assocs., 302 S.W.3d at 870.

E. Exclusion of Testimony of Respondent Seth Hill

      In issue ten, Hill argues that the trial court committed reversible error by

excluding Hill‟s testimony explaining why he was required to reside at the Ben

Reid Facility. Hill argues that under Rule 107 of the Texas Rules of Evidence, he
                                         23
“had the right to explain the circumstances surrounding the requirement that he

reside at the Ben Reid Facility as part of his involuntary participation in the State-

mandated sex-offender treatment program.” Rule 107 provides in part:

       When part of an act, declaration, conversation, writing or recorded
       statement is given in evidence by one party, the whole on the same
       subject may be inquired into by the other, and any other act,
       declaration, writing or recorded statement which is necessary to make
       it fully understood or to explain the same may also be given in
       evidence[.]

Tex. R. Evid. 107. Hill made an offer of proof. In relevant part, Hill‟s counsel

stated to the trial court:

               [Defense Counsel]: I would expect him to testify that the reason
       that he has been residing at Ben Reid since March of 2009, is that he
       was tried in this courtroom for a determination of whether he was a
       sexually violent predator and that he was taken directly from prison to
       the Ben Reid Facility after that trial, that the same issues tried in that
       case were tried in this case, and that we were having this trial again
       because the Texas Supreme Court reversed the decision of the first
       trial, that the Texas Supreme Court reversed the decision on the first
       trial in April of this year.

              ....

             That he was not released from the Ben Reid Facility after the
       Texas Supreme Court reversed the decision of the first trial in which
       he was determined to be a sexually violent predator, that he thinks that
       he should have been released, that he experienced deep dissatisfaction
       and disappointment that he wasn‟t released, but that he reacted to that
       appropriately and managed to control his behavior with respect to that
       disappointment; that that response would have been different when he
       was younger and abusing drugs and alcohol.

                                          24
      Hill essentially argues that when he tried to explain to the jury that he

entered the program involuntarily, the trial court erroneously ruled this testimony

was irrelevant. However, the trial court had previously admitted testimony of this

nature. Hill testified that he was released from prison March 11, 2009. Hill testified

that in 2007-2008 two doctors determined that he was a high-risk sex offender and

as a result, he began State-mandated treatment in March 2009. Hill testified that

he has resided at the Ben Reid Facility since his release from prison. As noted

above, the fact that Hill was labeled a high-risk sex offender and placed in State-

mandated treatment informs the jury that his treatment was involuntary.

      The decision to admit or exclude evidence is within the trial court‟s

discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.

1995). The trial court could reasonably view the testimony at issue as cumulative

of other information showing that Hill had not made the choice to live at the

facility and that he was required to remain there. Because the testimony at issue

was not necessary for the jury to understand that Hill was required to live at the

facility, the trial court did not abuse its discretion by excluding it. See id. We

overrule Hill‟s tenth issue.




                                         25
                               II. Motion for Mistrial

      In his eleventh issue, Hill argues the trial court erred in denying his motion

for a mistrial. Hill specifically complains about comments made by the prosecuting

attorney during her cross-examination of Tennison. Tennison testified that his

methodology had been published only on his blog. The State then asked, “Is that

the same blog where you have pictures of, like, dildos and talk about weapons of

mass destruction?” Defense counsel objected on the grounds that the question was

not relevant. The trial court sustained Hill‟s objection and then instructed the jury

to disregard the State‟s question, but denied Hill‟s request for a mistrial.

      We review a trial court‟s ruling on a motion for mistrial for an abuse of

discretion. In re J.A., 109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied).

An abuse of discretion occurs if the trial court acts without reference to any

guiding rules and principles. Id. We presume the jury followed the trial court‟s

instruction to disregard the objectionable matter, unless there is evidence to the

contrary. Id.

      Hill contends that throughout the trial the State‟s attorney portrayed

Tennison as a “rogue psychiatrist” and that the State‟s proffered question was

intended to taint the jury into believing that Hill‟s “expert witness is a kook[.]”

Hill complains about the State‟s opening argument wherein, the prosecutor argued

                                          26
that Tennison has “flawed methodology and bias.” Next, Hill complains about

Proctor‟s testimony that he has not heard of anyone else using or teaching

Tennison‟s methodology. Proctor also noted that Tennison‟s methodology is

organized differently than what is typical in the field. Hill complains that

Arambula testified that he has not seen a methodology wherein the psychiatrist

does not look for a mental condition; Arambula agreed that Tennison‟s approach is

not typical. In rebuttal, Arambula testified that he was present during Tennison‟s

testimony and that he found most of Tennison‟s testimony troubling. Arambula

went on to explain to the jury why he disagreed with Tennison‟s assessment of

Hill. Hill notes that during the State‟s closing argument, the prosecutor argued that

“Dr. Tennison is the outlier here[,] [n]ot Dr. Proctor, not Dr. Arambula.”

      Reviewing the record as a whole, we are not persuaded that the jury failed to

disregard the questions as instructed. We conclude the trial court did not abuse its

discretion in denying Hill‟s motion for mistrial. We overrule Hill‟s eleventh issue.

                                 III. Jury Charge

      We review the trial court‟s decision to refuse a particular instruction for an

abuse of discretion. In re Commitment of Miller, 262 S.W.3d 877, 891 (Tex.

App.—Beaumont 2008, pet. denied) (quoting In re V.L.K., 24 S.W.3d 338, 341

(Tex. 2000)). A trial court must “submit such instructions and definitions as shall

                                         27
be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. However, the

trial court is given considerable discretion in determining whether jury instructions

are necessary and proper. Miller, 262 S.W.3d at 891 (quoting V.L.K., 24 S.W.3d at

341). A trial court‟s instruction is proper if it assists the jury, accurately states the

law, and has support in the pleadings and evidence. In re Commitment of

Almaguer, 117 S.W.3d 500, 502 (Tex. App.—Beaumont 2003, pet. denied). For an

appellant to obtain a reversal of a judgment based on jury charge error, the

appellant must show that the claimed error “probably caused the rendition of an

improper judgment” or “probably prevented the appellant from properly presenting

[his] case to the court of appeals. Tex. R. App. P. 44.1(a).

A. Limiting Instruction on Hearsay Evidence

      In his twelfth issue, Hill argues that the trial court committed reversible error

by denying his limiting instruction on hearsay evidence. Hill argues that Proctor

and Arambula testified extensively from hearsay data and “[w]ithout a precise

instruction, the jury could not distinguish which evidence it could consider for its

substantive value and which evidence it could not. During trial, defense counsel

objected to Proctor‟s testimony relating what the records showed about Hill‟s

convictions, as inadmissible hearsay. The trial court overruled Hill‟s objection, but

granted Hill a running objection and instructed the jury as follows:

                                           28
            . . . Hearsay normally is not admissible; however, certain
      hearsay information contained in records reviewed by experts is
      allowed into evidence through the expert's testimony. Such evidence
      is admitted only for the purpose of showing the basis of the expert's
      opinion.

Later, during Arambula‟s testimony, defense counsel objected to Arambula‟s

testimony related to hearsay contained in the records. The trial court overruled the

objection and again instructed the jury on the proper use of hearsay information:

            THE COURT: Okay. As I have told you once already, when
      experts testify, hearsay normally is not admissible. However, certain
      hearsay information contained in records and used by experts is
      allowed into evidence through the expert‟s testimony. Such evidence
      is admitted only for the purpose of showing the basis of the expert‟s
      opinion.

Additionally, the trial court submitted the following limiting instruction to the jury

in the charge:

            Hearsay is a statement, other than one made by the declarant
      while testifying at the trial or hearing, offered to prove the truth of the
      matter asserted. Certain hearsay information contained in records
      reviewed by the experts was admitted before you through expert
      testimony. Such hearsay was admitted only for the purpose of
      showing the basis of the experts‟ opinion and cannot be considered as
      evidence to prove the truth of the matter asserted.

During the charge conference, Hill requested the court‟s instruction be amended to

read as follows:

             Hearsay is a statement other than one made by the declarant
      while testifying at the trial or hearing, offered in evidence to prove the
      truth of the matter asserted.
                                          29
             Testimony by experts: If scientific, technical, or other
      specialized knowledge will assist the trier of fact to understand the
      evidence or to determine a fact in issue, a witness qualified as an
      expert by knowledge, skill, experience, training or education may
      testify thereto in the form of an opinion or otherwise.

             Hearsay is not admissible as evidence in trial except as
      provided by narrow and specific hearsay exceptions. Certain evidence
      was admitted before you in the form of statements found in various
      records reviewed by expert witnesses. The evidence contained in the
      records about the respondents underlying sex offenses or the opinions
      of other witnesses who did not testify would ordinarily be hearsay
      evidence and thus would not be admissible in this trial, but because
      the expert witnesses relied upon the records in forming the bases of
      their opinions, this particular evidence was admitted for the narrow
      purpose of explaining the bases of their opinion testimony, but not for
      any other purpose, including whether the facts alleged in the records
      are true. You will therefore consider this evidence only for the narrow
      purpose for which it was admitted and for no other purpose.

Hill argues that he was entitled to this instruction under Rule 705(d) of the Texas

Rules of Evidence.1

      1
          Rule 705, in pertinent part, states:

            (d) Balancing test; limiting instructions. When the underlying
      facts or data would be inadmissible in evidence, the court shall
      exclude the underlying facts or data if the danger that they will be
      used for a purpose other than as explanation or support for the expert's
      opinion outweighs their value as explanation or support or are unfairly
      prejudicial. If otherwise inadmissible facts or data are disclosed before
      the jury, a limiting instruction by the court shall be given upon
      request.

Tex. R. Evid. 705(d).
                                            30
         The record reflects that the trial court gave a limiting instruction in response

to Hill‟s request during Proctor‟s testimony. Additionally, in the jury charge, the

court instructed that hearsay information contained in records reviewed by the

experts had been admitted only for showing the basis of the experts‟ opinions. Hill

argues this instruction was insufficient, but cites no appropriate legal authority in

support of this contention.

         We conclude the trial court did not abuse its discretion in denying Hill‟s

requested instruction. We conclude the alleged error did not cause the jury to reach

an improper judgment. See Tex. R. App. P. 44.1(a). We overrule Hill‟s twelfth

issue.

B. Instruction on the Burden of Proof

         In his thirteenth issue, Hill argues that the trial court erred in refusing his

instruction on the burden of proof. Specifically, Hill complains that the trial court

refused to give a written instruction on reasonable doubt. Hill complains that the

jury was not adequately apprised of the allocation of the burden of proof. Hill

alleges that while the State‟s attorney informed the jury-selection panel that the

State bore the burden of proof, “the trial court read a rather Spartan charge to the

jury, entirely silent as to the placement of the burden of proof.” Hill requested an

instruction that stated:

                                            31
      In order to find Respondent to be a sexually violent predator,
you must find beyond a reasonable doubt that the Respondent is (l) a
repeat sexually violent offender; and (2) suffers from a behavioral
abnormality that makes a person likely to engage in a predatory act of
sexual violence.

       All persons are presumed to not be a sexually violent predator
and no person may be found to be a sexually violent predator unless
the Petitioner proves each element beyond a reasonable doubt. The
fact that the Respondent has been sued and required to answer gives
rise to no inference at his trial that he is a sexually violent predator.

       The law does not require the Respondent to prove he is not a
sexually violent predator or produce any evidence at all. The
presumption that he is not a sexually violent predator alone is
sufficient to answer Respondent is not a sexually violent predator,
unless the jurors are satisfied beyond a reasonable doubt of the [sic]
Respondent is a sexually violent predator after careful and practical
consideration of all of the evidence in the case.

      The Petitioner has the burden of proving the Respondent is a
sexually violent predator and it must do so by proving each and every
element beyond a reasonable doubt. If the Petitioner fails to do so, you
must answer no.

      It is not required that Petitioner prove its case beyond all
possible doubt; it is required that the petitioner‟s proof excludes all
“reasonable doubt” concerning the Respondent's status.

      In the event you have a reasonable doubt as to whether the
Respondent is a sexually violent predator after considering all the
evidence before you, and these instructions, you will find that he is
not and so say by your verdict, “NO.”

      You are further instructed as a part of the law in this case that
the petition filed against the Respondent is not evidence in the case,
and that the true and sole use of the petition is to allege that

                                   32
      Respondent is a sexually violent predator and to inform the
      Respondent of the allegations against him.

The trial court denied Hill‟s requested instruction.

      The jury instructions provided that a “yes” answer must be based on a belief

beyond a reasonable doubt. Further, the charge submitted by the trial court placed

the burden on the State by stating the question as follows: “Do you find beyond a

reasonable doubt that SETH HILL suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence?” However, Hill

complains that this language was insufficient to adequately apprise the jury as to

the allocation of the burden of proof.

      Rule 277 of the Texas Rules of Civil Procedure states that “[t]he placing of

the burden of proof may be accomplished by instructions rather than by inclusion

in the question.” Tex. R. Civ. P. 277. “[T]he Rules of Civil Procedure contemplate

that the jury can be instructed about applying the burden of proof in one of two

ways: an admonitory instruction or by placement of the burden through the

question.”   In re Commitment of Beasley, No. 09-08-00371-CV, 2009 WL

3763771, at *7 (Tex. App.—Beaumont Nov. 12, 2009, pet. denied) (mem. op.).

Like in Beasley, the phrasing of the question in this case placed the burden of proof

on the State, since an affirmative answer to the question required the State to

prove, beyond a reasonable doubt, that Hill suffers from a behavioral abnormality
                                          33
that makes him likely to engage in a predatory act of sexual violence. See id. We

conclude that the question the trial court posed to the jury in the charge properly

placed the burden of proof on the State. See id. We overrule issue thirteen.

C. Definition of Behavioral Abnormality

      In his fourteenth issue, Hill argues that the trial court erred in refusing to

include his definition of behavioral abnormality in the charge to the jury. Hill

requested an instruction that stated, “„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.‟”     The trial court denied Hill‟s

request. Instead, the trial court submitted a definition of behavioral abnormality

that tracked the language of the statute: “„[behavioral abnormality]‟ means 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.‟” See Tex. Health & Safety Code Ann. § 841.002(2).

      When a case is governed by a statute, as it is here, the jury charge should

track the statutory language as closely as possible. Almaguer, 117 S.W.3d at 502.




                                         34
Because the definition of behavioral abnormality substituted by the court tracked

the language of the statute, we overrule Hill‟s fourteenth issue.

      Having overruled Hill‟s fourteen issues, we affirm the trial court‟s judgment.

      AFFIRMED.

                                                   ___________________________
                                                         CHARLES KREGER
                                                               Justice

Submitted on August 20, 2012
Opinion Delivered February 28, 2013

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




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