                                      In The

                                Court of Appeals
                      Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00607-CV
                            ____________________

         IN RE COMMITMENT OF RONALD KEITH MITCHELL
_______________________________________________________          ______________

                      On Appeal from the 435th District Court
                           Montgomery County, Texas
                         Trial Cause No. 12-03-02628 CV
________________________________________________________          _____________

                           MEMORANDUM OPINION

      The State filed a petition seeking the involuntary civil commitment of

Ronald Keith Mitchell as a sexually violent predator. See Tex. Health & Safety

Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (the SVP statute). A jury

found Mitchell suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. See id. § 841.003(a)(2) (West 2010).

The trial court signed an order of commitment, and Mitchell filed this appeal from

the final judgment.




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                                THE CONVICTIONS

      Mitchell was charged with aggravated sexual abuse and attempted capital

murder. The State abandoned the aggravated sexual abuse count and proceeded to

trial on the attempted capital murder, which was based on sexually motivated

conduct and constituted a sexually violent offense. In 1983, a jury found Mitchell

guilty of the offense and assessed punishment at fifty years of confinement. In

1992, while he was on parole, he pleaded guilty to sexual assault and received a

twenty-year sentence. He received sexual misconduct disciplinaries while he was

incarcerated.

                                   THE STATUTE

      The State was required to prove beyond a reasonable doubt that Mitchell is a

sexually violent predator. See id. § 841.062(a) (West 2010). The statute defines

“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

“behavioral abnormality” is a “congenital or acquired condition that, by affecting a

person’s emotional or volitional capacity, predisposes the person to commit a

sexually violent offense, to the extent that the person becomes a menace to the

health and safety of another person.” Id. § 841.002(2) (West Supp. 2012).

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                                EXPERT TESTIMONY

      In his first issue, Mitchell argues the trial court erred in denying Mitchell’s

motions to strike the testimony of the State’s expert witnesses. He argues that their

respective methodologies were flawed. The trial court denied the motions.

      We review a trial court’s decision concerning the admissibility of evidence

for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998). 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). We will reverse a judgment if an error by the trial court probably

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

from properly presenting the case on appeal. See Tex. R. App. P. 44.1(a). In

assessing the reliability of an expert’s opinion in fields of social science, we have

considered whether the field of expertise is a legitimate one, whether the subject

matter of the expert’s testimony is within the scope of that field, and whether the

expert’s testimony properly relies upon the principles involved in that field of

study. See In re Commitment of Polk, No. 09-10-00127-CV, 2011 WL 662928, at

*4 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied) (mem. op.).

                                         3
      Dr. Timothy Proctor, a forensic psychologist, testified for the State. When

performing a forensic evaluation, Proctor reviews records pertaining to the person

he is evaluating, attempts to interview him, and scores psychological instruments.

Proctor interviewed Mitchell and reviewed criminal records, medical records, court

records, prison records, depositions, and evaluations pertaining to Mitchell. Proctor

explained that his methodology for determining whether a person suffers from a

behavioral abnormality is the same methodology followed by other experts

performing the same types of evaluations in this field. He testified that the actuarial

tests he uses have been peer reviewed and are generally accepted as valid by

forensic psychologists for use in these types of evaluations. On cross-examination,

Proctor explained that there is no way to study the rate of error with respect to

these types of evaluations.

      Based on Proctor’s review of Mitchell’s records and his interview of

Mitchell, Proctor diagnosed Mitchell with “[p]araphilia not otherwise specified;

rule-out sexual sadism; alcohol abuse; rule-out alcohol dependence in sustained

full remission in a controlled environment; cannabis abuse; rule-out cannabis

dependence in sustained full remission in a controlled environment; [and]

antisocial personality disorder.” He concluded Mitchell suffers from a behavioral

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

                                          4
      Dr. David Self, a forensic psychiatrist, also testified for the State. In

determining whether Mitchell has a behavioral abnormality, Self employed a

methodology similar to that used by Dr. Proctor, but without the scoring of

actuarials. Self indicated that the methodology he employed is followed by other

experts in the field and that the records he relied on are the same types of records

relied on by experts in his field performing these types of evaluations. He

explained that his interview of Mitchell was done in accordance with the accepted

standards in forensic psychiatry. Self testified that the evaluative method he uses

has been tested (although not subjected to a controlled research group), and that it

is an accepted method in his field for these types of evaluations.

      Self diagnosed Mitchell with paraphilia, sexual deviance, antisocial

personality disorder, rule-out exhibitionism, and “alcohol and marijuana,

polysubstance abuse in sustained institutional remission.” Based on his education,

training, and experience, Self concluded Mitchell suffers from a behavioral

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

      The experts each testified regarding their training, experience, credentials,

and methodology used in evaluating Mitchell. They explained that their

methodologies are accepted methods in their respective fields for conducting

behavioral abnormality assessments. The trial court did not abuse its discretion in

                                          5
allowing the expert testimony. See In re Commitment of Hill, No. 09-11-00593-

CV, 2013 WL 772834, at *7 (Tex. App.—Beaumont Feb. 28, 2013, pet. denied)

(mem. op.). Issue one is overruled.

                      DETAILS OF PRIOR CRIMINAL OFFENSES

      In his second issue, Mitchell contends the trial court erred in overruling

Mitchell’s running Rule 705(d) objection to the underlying facts or data. See Tex.

R. Evid. 705(d). In issue three, Mitchell maintains the trial court erred by

overruling Mitchell’s “objections that the State’s attorney was arguing the

substantive value of the underlying facts or data” despite the “trial court’s limiting

instruction[.]” He argues that the trial court’s rulings resulted in an improper

judgment.

      Rule 705(a) of the Texas Rules of Evidence provides that 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); Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 602 (Tex.

App.—Fort Worth 1995, writ denied). Rule 705(d) provides:

            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

                                          6
      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); see In re Commitment of Day, 342 S.W.3d 193, 198-99 (Tex.

App.—Beaumont 2011, pet. denied).

      Mitchell concedes that under Rule 705(a), experts may disclose the

probative underlying facts or data relied on in forming their opinions. He argues

that under Rule 705(d) the trial court should have excluded some of the prejudicial

underlying facts and data.

      It was within the trial court’s discretion to admit the underlying facts or data

on which Proctor and Self based their opinions, and the trial court could have

reasonably concluded that the evidence would aid the jury in understanding how

the State’s experts formed their opinions regarding Mitchell’s behavioral

abnormality. See Tex. R. Evid. 705(a); Boswell, 910 S.W.2d at 602. Both Proctor

and Self presented the facts they considered in forming their opinions, and each

explained how the details of Mitchell’s offenses influenced those opinions

regarding the ultimate issue in the case. The trial court did not abuse its discretion

in allowing the State’s experts to explain the offense details that were contained in

the records they reviewed. See In re Commitment of Day, 342 S.W.3d at 198-99.

The trial court gave a limiting instruction explaining that the evidence was

admitted for the purpose of showing the basis of the expert’s opinions, and the
                                          7
limiting instruction was included in the jury charge. We presume the jury followed

the instruction. Id. The issues raised do not support a reversal of the trial court’s

judgment. See Tex. R. App. P. 44.1(a)(1). Issues two and three are overruled. The

trial court’s judgment is affirmed.

      AFFIRMED.

                                             ________________________________
                                                     DAVID GAULTNEY
                                                           Justice

Submitted on September 30, 2013
Opinion Delivered October 17, 2013

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




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