Opinion issued March 10,2015




                                     In The

                              ~ourt    of ~peals
                                     For The




                              NO. 01-13-00921-CV


            IN RE COMMITMENT OF DENNIS RAY STUTEVILLE



                    On Appeal from the 435th District Court
                          Montgomery County, Texas
                     Trial Court Case No. 12-12-13060-CV


                                 OPINION
      This case involves a civil commitment pursuant to the Sexually Violent

Predator Act ("the SVP Act"). 1 A jury found that Dennis Ray Stuteville is a

sexually violent predator as defined in the SVP Act, and the trial court rendered a

fmal judgment and an order of civil commitment. In seven appellate issues,

      See   TEX. HEALTH & SAFETY CODE ANN.     §§ 841.001-.151 (West 2010 & Supp.
      2014).
Stuteville argues that: ( 1) there is legally insufficient evidence that he has "serious

difficulty controlling his behavior"; (2) there is factually insufficient evidence that

he has "serious difficulty controlling his behavior"; (3) the trial court abused its

discretion when it denied his request for a separate jury instruction on "serious

difficulty controlling behavior''; (4) the trial court abused its discretion by

admitting evidence of uncharged offenses allegedly committed by Stuteville for the

limited purpose of explaining the basis of the State's expert's opinion; (5) the trial

court abused its discretion by admitting evidence of details of these uncharged

offenses, as well as details of the charged offenses for the limited purpose of

explaining the basis of the expert's opinion; (6) the trial court etred when it

granted the State's motion for a directed verdict on the issue of whether he is a

"repeat sexually violent offender"; and (7) the trial court improperly commented

on the weight of the evidence during voir dire.

      We affirm the trial court's judgment and order of civil commitment.2

                              Background Summary

      On June 7, 2004, Stuteville pleaded guilty to two charges of indecency with

a child by sexual contact, and three charges of indecency with a child by exposure.

The court assessed Stuteville's punishment at ten years' confinement in the


2
      This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was
      transferred to the First Court of Appeals, Houston, Texas. See TEX. Gov'T CODE
      ANN. § 73.001 (West 2013) (authorizing transfer of cases).


                                           2
Institutional Division of the Texas Department of Criminal Justice ("TDCJ") with

respect to each of the two charges of indecency with a child by sexual contact, and

five yeats' confinement in TDCJ with respect to each of the three charges of

indecency with a child by exposure. The sentences in all five cases ran

concurrently.

      Stuteville was scheduled to be released from IDC1 on December 23, 2013.

On December 14, 2012, the State filed a petition in the 435th District Court in

Montgomery County to civilly commit Stuteville as a sexually violent predator

under the SVP Act, 3 alleging that he was a repeat sexually violent offender who

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

predatory act of sexual Violence. See TEX. HEALTH & SAFETY CODE ANN.

§ 84L003(a) (West Supp. 2014). While at TOCJ, Stuteville was evaluated by

forensic psychologist Dr. Jason D. Dunham, who concluded that Stuteville met the

statutory requirement of behavioral abnormality.

      The trial court determined that Stuteville was indigent and appointed him

counsel who filed an answer. Two witnesses testified at the jury trial: Dr. Lisa

Clayton, the State's expert witness, and Stuteville.




3
      The SVP Act requires that a petition for civil commitment of a sexually violent
      predator be filed in Montgomery County. See TEX. HEALTH & SAFETY CODE ANN.
      § 84L041(a) (West 2010).


                                          3
A.    Dr. Clayton

      Dr. Clayton, who is board certified in both general and forensic psychiatry,

was retained by the State to evaluate Stuteville and determine whether be has a

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

violence. Dr. Clayton testified that she has evaluated approximately 135 sex

offenders for behavioral abnormalities during the past thirteen years and testified

as an expert witness in civil commitment trials arising from approximately half of

those cases.

      Dr. Clayton testified that when she evaluates someone for a behavioral

abnormality, she begins by compiling and reviewing any available records on that

individual and then meets with the person and performs a face-to-face interview

and evaluation. Dr. Clayton explained that this is the methodology relied upon by

forensic psychiatrists when formulating an opinion in such cases.

      Dr. Clayton testified that she reviewed police reports from two different

jurisdictions, victim statements, indictments, plea bargain forms, Stuteville's

penitentiary packets, sex offender treatment records, and medical records, and

spoke With a witness in one case. She also reviewed prior psychological

evaluations by the sex offender treatment program ("SOTP") and forensic

psychologist Dr. Dunham. After reviewing these records, Dr. Clayton met with

Stuteville for three hours in February 2013. After her interview, she reviewed



                                        4
Stuteville's most recent medical history and his deposition testimony in this civil

commitment proceeding. Dr. Clayton testified that based on her education,

training, experience, and the methodology she employed, she believed, to a

reasonable degree of scientific certainty, that Stuteville suffers from a behavioral

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

      Dr. Clayton testified that Stuteville had somewhere between twenty-seven

and forty-three victims going back to 1987, apart from ''the ones he was charged

with," and she described various details of these charged and uncharged offenses

for the jury. Stuteville objected to Dr. Clayton testifying about the charged and

uncharged offenses based on hearsay and argued that the evidence was more

prejudicial than probative pursuant to Rules of Evidence 403 and 705( d). The trial

court overruled Stuteville's objections, granted him a running objection, and, at

Stuteville's request, gave the jury the following oral instruction:

      [H]earsay normally is not admissible. However, certain hearsay
      infonnation contained in records reviewed by experts is allowed into
      evidence through expert testimony. Such evidence is admitted only for
      the purpose of showing the basis of the expert's opinion.

Stuteville did not object or request a different instruction.

      1.     Charged Offenses

      Dr. Clayton testified that Stuteville pleaded guilty to two charges of

indecency with a 10-year-old girl by sexual contact in 2004 for which he received

prison sentences.


                                           5
         According to Dr. Clayton, Stuteville befriended the mother of two girls, and

eventually began babysitting for them. One of these girls was the named

complainant in the two indecency-by-contact convictions. Stuteville paid the girls

to perform chores around his home, and he bought them toys, clothing, and

jewelry. He would also let the girls swim and play naked in his hot tub. Dr.

Clayton described Stuteville's conduct as "groorning," and explained to the jury

that ''grooming" is something sophisticated pedophiles do in order to offend

against children while lessening the chances of the child telling someone about the

abuse.

         The ten-year old complainant told law enforcement that she spent many

months with Stuteville, swimming naked in his hot tub, giving and receiving naked

massages with oil, mutual masturbating, and watching pornography. The girl

claimed that Stuteville threatened that she would be taken away from her mother if

she told anyone. After a visit to the school nurse's office in 2002, the nurse

contacted CPS due to a suspicious yeast infection. CPS's investigation culminated

in the two charges of indecency with a child by sexual contact that Stuteville

pleaded guilty to in 2004. Stuteville denied the allegations against him and blamed

the gitl' s rnother.

         Dr. Clayton testified that Stuteville's house was "kind of like the

neighborhood Disneyland, where lots of little kids wanted to come over."



                                           6
Stuteville had a bicycle, go-cart, hot tub, and a constant Christmas tree with

hundreds of wrapped presents. Ac.cording to Dr. Clayton, Stuteville told her his

house was "a kid magnet."

      Dt. Clayton testified that Stuteville also pleaded guilty to three charges of

indecency with a child by exposure in 2004. According to Dr. Clayton, those

charges involved three sisters (ages 5, 9, and 12) who lived down the street from

Stuteville. The girls began going over to Stuteville's house after they saw other

children there. The girls told law enforcement that they swam naked in the hot tub

with Stuteville and that Stuteville exposed himself to thel11 on other occasions,

masturbated and ejaculated in front of them, and tried to get them to watch

pornography with him. Stuteville also tried to convince the girls to let him fondle

their breasts and "lick their middles" (i.e., "their vaginal area without clothes on")

and told them that other little other girls had let him touch them in that way before.

Stuteville, who warned the girls not to tell anyone, showed them a gun and a large

knife that he kept by his bed. Stuteville pleaded guilty to three counts of indecency

by exposure involving these girls and was sentenced to five years' imprisonment in

each case.

      Dr. Clayton testified that Stuteville told her that he did not commit any of

these crimes even though he had pleaded guilty and that he had been kicked out of




                                          7
sex offender treatment for not admitting the offenses. His denial and his lack of sex

offender treatment are risk factors for him reoffending sexually.

      2~     Uncharged Offenses

      Dr. Clayton testified that although he had only been convicted of offending

against these four prepubescent girls in 2004, the police records and victim

statements that she had reviewed indicated that Stuteville had committed many

other offenses against many other victims beginning as early as 1987. Based on her

review of the records, Dr. Clayton testified that Stuteville had somewhere between

twenty-seven and forty-three       victims, including his      own daughter and

granddaughter. Dr. Clayton also testified that several of the girls reported to law

enforcement that Stuteville had told them that he had "43 adopted daughters.''

According to Dr. Clayton, this number referred to Stuteville's count of the girls he

had sexually assaulted.

      In particular, Dr. Clayton testified that Stuteville's teenage daughter made an

outcry in 1987, claiming that her father had masturbated in front of her, and made

her sit naked while he fondled her breasts and genitals. Although the girl was

removed from the home and charges were filed against Stuteville, the girl died in

an automobile accident and the charges were later dismissed.

      Dr. Clayton also testified that after the charges that resulted in Stuteville's

2004 plea bargain became public, another young woman came forward and said



                                         8
that he had done the same things to her when she was young. She also named five

other girls that she had seen Stuteville sexually offend against.

      According to Dr. Clayton, all of the children interviewed by law

enforcement knew that no one was allowed to wear clothing in the hot tub, and

many acknowledged either swimming naked with Stuteville in the hot tub or

seeing Stuteville swimming naked with other children-including Stuteville's

seven-year old granddaughter. The children also reported that Stuteville gave gifts

and toys to thetn, and even tried to pay some ofthe little girls to do housework in

the nude.

      3.      "Risk factors"

      Dr. Clayton testified that "risk factors" are broad characteristics based on

research, and identified by forensic psychology and forensic psychiatry, which

offenders have in common. In this evaluation, Dr. Clayton used risk factors to

fortify her medical opinion that Stuteville suffers from a behavioral abnormality

that makes him likely to engage in a predatory act of sexual violence. In particular,

Dr. Clayton testified that Stuteville has a sexual deviancy (i.e., pedophilia non-

exclusive type, to both males and females) and a personality disorder not otherwise

specified with antisocial and narcissistic traits. Sexual deviancy and antisocial

personality disorders are risk factors for reoffending sexually.




                                          9
      The records Dr. Clayton reviewed indicated that Stuteville is a

"sophisticated devious pedophile" who is very stimulated by children and has

created a child-friendly home and befriended the children and their mothers in

order to act out his sexual deviancy. Pedophilia is a lifelong, chronic condition that

does not go away.

      Dr. Clayton explained that pedophiles have difficulty controlling their

emotional, and sometimes volitional, capacity and that sex offender treatment can

"help the person realize ... learn ways that they can try to control it so that they

don't act on it." Dt. Clayton further opined that Stuteville had not "had enough

treatment to control his" behavior.

      Dt. Clayton testified that the past behavior of pedophiles is often indicative

of what they will do in the future because "sexual deviation and [sexual attraction

does not] change over time." A person's past behavior must be studied in order to

determine whether he has a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence in the present. Dr. Clayton explained

that she considered the facts of Stuteville's charged and uncharged offenses and

relied on them in forming her expert opinion in this case. According to Dr.

Clayton, the facts of the underlying offenses were necessary for purposes of her

evaluation of Stuteville because they showed her the depth and breadth of the acts

he committed while acting out on his sexual deviancy.



                                         10
      Dr. Clayton also reviewed actuarial tests given to Stuteville by earlier

evaluators which calculated Stuteville's risk to reoffend as average, but the test

reassessed his risk at the low-to-moderate range when Stuteville's advanced age

was taken into consideration. Dr. Clayton explained that the first test is more

accurate in this case because Stuteville committed the charged offenses in his eatly

to mid-fifties, which is well beyond the age of forty-five, where sex offenders

usually offend less often. Dr. Clayton further explained that the actuarial tests

underestimated Stuteville's risk of reoffending because Stuteville is ''kind of an

aberration" because he began offending at a much later age than most pedophiles.

He also had a much longer offending history and "wider victim pool" than the

actuarial tests considered.

      In addition to Stuteville's sexual deviancy and personality disorder, Dr.

Clayton also identified numerous other risk factors indicating that Stuteville posed

a high risk of reoffending, These other risk factors include the fact that Stuteville

(1) has a lengthy offending history which spans more that fifteen years, (2) has a

large number of victims, (3) has both male and female victims, (4) actively

recruited his victims, (5) offended after the age of forty-five, (6) attempted to hide

his crirnes and avoid detection, (7) was kicked out of sex offender treatment after a

couple of months because he denied needing treatment, (8) continues to deny any




                                         11
wrongdoing, and (9) lacks any insight into the danger of him being around

children.

      Although prison authorities attempted to provide Stuteville with sex offender

treatment, Stuteville repeatedly denied needing treatment and did "everything he

[could] do to avoid it," including faking an illness in order to avoid attending

treatment sessions. Dr. Clayton further testified that Stuteville had not "had enough

treatment to control his behavioral abnormality." According to Dr. Clayton,

Stuteville's denial of any wrongdoing and his lack of sex offender treatment are

risk factors for him reoffending sexually.

      Dr. Clayton testified that based on her interview and her revtew of

Stuteville's records, she believed that Stuteville posed a high risk of reoffending

sexually.

B.    Stuteville

      At trial, Stuteville was questioned extensively about the facts and details of

the charged and uncharged sexual offenses that Dr. Clayton had previously

testified about. He admitted to some of the facts (e.g., babysitting for and buying

gifts for some of the children, allowing neighborhood children into his home,

having a playset in his backyard and a playroom in his house "for the younger

ones"). Stuteville also admitted to telling the children who visited his home that

they had to be naked in order to swim in his bot tub, but he claimed that it "was



                                         12
just an excuse to keep people out of it." He acknowledged that some of the

children got in the hot tub anyway (some of whom were clothed while others were

naked), but he denied being in the hot tub with any ofthe children.

      Stuteville testified that he was charged with sexually offending against his

teenage daughter in 1990, but he denied any wrongdoing. Although he admitted

that he had been previously convicted of two counts of indecency with a child by

sexual contact and three counts of indecency with a child by exposure in 2004, he

denied committing any offenses. According to Stuteville, three other charges of

indecency with a child were also filed against him, but those were dismissed before

his plea bargain because the girl admitted that she lied.

       He also testified that he was not aware that he had been accused in the

twenty-seven to forty-three uncharged cases that Dr. Clayton talked about until his

deposition in this civil commitment case. When asked if any of the children

allegedly involved in the charged and uncharged sexual offenses were his

"victims," Stuteville responded, "No. And I'm not in denial either." Stuteville

testified that he attended the SOTP while incarcerated at TDCJ because he was

forced to do so, but that he did not believe that he needed such treatment.

C.    Motions for Directed Verdict and the Jury Cbarge

      After both sides rested, Stuteville moved for a directed verdict and argued

that that there was legally insufficient evidence that he currently suffers from a



                                          13
behavior abnormality that makes him likely to engage in a predatory act of sexual

violenc.e. Stuteville's motion was denied.

      The State moved for a directed verdict on the issue of whether Stuteville was

a "repeat sexually violent offender," based upon Stuteville's testimony, as well as

his penitentiary packet which was admitted into evidence without objection. See

TEX. HEALTH & SAFETY CODE ANN. § 841.003(b) (West Supp. 2014) (defining

"repeat sexually violent offender" as person who has been convicted of more than

one sexually violent offense and sentenced for at least one such offense). The

State's motion was granted.

      During the charge conference, Stuteville requested a separate instruction on

the issue of "serious difficulty in controlling behavior." The trial court denied the

request after noting that the court's charge tracked the language of the SVP Act

and had been "approved by the Court of Appeals."

      The submitted charge, which tracked the language of the SVP act, included

the statutory definitions of "sexually violent predator,'' "behavioral abnottnality,"

and "predatory act." The charge also instructed the jury that the trial court had

granted a directed verdict on the issue of whether Stuteville is a repeat sexually

violent offender. As a result, the jury was asked to decide only one question: "Do

you find beyond a reasonable doubt that DENNIS RAY STUTEVILLE is a




                                         14
sexually violent predator?" The jury answered, "yes." The trial court also included

the following written limiting instruction in the jury charge:

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

Stuteville did not object ot request a different instruction.

      B~sed   on the jury's finding that Stuteville is a sexually violent predator, the

trial court signed a judgment and order of commitment, ordering Stuteville to

undergo outpatient treatment and to be subject to certain terms of supervision.

This appeal followed.

                            Sufficiency of the Evidence

      In his first and second issues, Stuteville argues that there is legally and

factually insufficient evidence supporting the jury's finding that he has "serious

difficulty controlling his behavior."

A.    Standar4 of Review

      This is a civil proceeding but because the State's burden of proof is the same

as in a criminal case, we review SVP cases for legal sufficiency of the evidence

using the appellate standard of review applied in criminal cases. See In re

Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.-Beaumont 2002, pet.



                                           15
denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789

(1979)). Under this standard of review, we assess the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could find,

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

statute. See Mullens, 92 S. W.3d at 885; see also In re Commitment ofHatchell, 343

S.W.3d 560, 563 (Tex. App.-Beaumont 2011, no pet.). It is the fact finder's

responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and

draw reasonable inferences from basic to ultimate facts. Mullens, 92 S.W.3d at

887.

       When reviewing a challenge to the factual sufficiency of the evidence in a

SVP case, we weigh all of the evidence to determine "whether a verdict that is

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

would compel ordering a new trial." In reCommitment of Day, 342 S.W.3d 193,

213 (Tex. App.-Beaumont 2011, pet. denied). We "view all of the evidence in a

neutral light and ask whether a jury was rationally justified in finding guilt beyond

a reasonable doubt." !d. at 206. We will only reverse if, after weighing the

evidence, we determine that "the risk of an injustice remains too great to allow the

verdict to stand." !d. at 213. In conducting our review, we may not substitute our

judgment for that of the jury which is the sole judge of the credibility of witnesses




                                          16
and the weight to be given to their testimony. Golden Eagle Archery, Inc. v.

Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

B.    Applicable Law

      In an SVP case, the State must prove beyond a reasonable doubt that a

person is a sexually violent predator. TEX. HEALTH & SAFETY CODE ANN.

§ 84L062(a) (West 2010). A person is a "sexually violent predator" if he is a

repeat sexually violent offender and suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. !d. § 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. 2014).

      The U.S. Supreme Court requires the State to prove that a respondent has

"serious difficulty in controlling [his] behavior" in order to civilly commit hirn

under any SVP statute. See Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867,

870 (2002). The inability to control one's behavior "must be sufficient to

distinguish the dangerous sexual offender whose serious mental illness,

abnormality; or disorder subjects him to civil commitment from the dangerous but

typical recidivist convicted in an ordinary criminal case." Id




                                         17
      With regard to Texas's SVP statute, the Beaumont Court of Appeals has

repeatedly held that a "behavioral abnormality" is considered "an abnormality

which causes serious difficulty in behavior control," In re Commitment of

Almaguer, 117 S.W.3d 500, 506 (Tex. App.-Beaumont 2003, pet. denied). When

a jury finds that a person is a sexually violent predator, that finding entails an

implicit determination that the respondent has serious difficulty controlling

behavior. See id. at 505-06. Further, a jury may infer that a respondent has serious

difficulty controlling his current behavior based on his past behavior. 4 See In re

Commitment of Washington, No. 09-11-00658-CV, 2013               WL 2732569, at *5-6
(Tex. App.-Beaumont June 13, 2013, pet. denied) (mem. op.).

C.    Analysis

      Stuteville argues that there is legally and factually insufficient evidence

supporting the jury's finding that he bas "serious difficulty controlling his

behavior." The evidence in this case consists primarily of the testimony of

Stuteville and Dr. Clayton, and Stuteville's penitentiary packet which reflects that

he pleaded guilty to sexually offending against four prepubescent girls in 2004.

      At trial, Stuteville admitted that he had been convicted of two coUI1ts of

indecency with a child by sexual contact and three counts of indecency with a child

4
      Stuteville argues on appeal that evidence that he committed past crimes does not
      by itself, or in combination with Dt. Clayton's testimony, support a finding that he
      has serious difficulty controlling his behavior. His only source for this claim,
      however, is an article that was never offered or admitted into evidence at trial.

                                           18
by exposure in 2004, and charged with sexually offending against his teenaged

daughter in 1990, but he denied any wrongdoing and testified that he only pleaded

guilty to the five offenses because his lawyer told him to do so. Stuteville testified

that he was not sexually attracted to children, denied that he ever had "a problem

with sexually offending against children," and claimed that the children's families

fabricated all of the sexual allegations against him because they were mad at him.

He also denied being a sex offender or needing sex offender treatment, and he

testified that he only attended TDCJ's SOTP because he was forced to do so.

      Dr. Clayton testified that, in her expert medical opinion, Stuteville has a

behavioral abnormality as defined by the SVP Act that makes him likely to engage

in a predatory act of sexual violence. In particular, Dr. Clayton testified that

Stuteville has been diagnosed with pedophilia and a personality disorder with

antisocial and narcissistic traits. She explained that Stuteville had not "had enough

treatment to control his behavioral abnormality."

      In addition to Stuteville's sexual deviancy (pedophilia) and personality

disorder, Dr. Clayton also identified numerous other risk factors that increase

Stuteville's likelihood of reoffending sexually, including, his advanced age when

he offended, his lengthy offending history, his large victim pool that includes both

male and female children, and the fact that he actively recruited his victims and

attempted to hide his crimes and avoid detection. Dr. Clayton testified that



                                         19
Stuteville's denial of any wrongdoing, his lack of sex offender treatment, and his

lack of any insight into the danger of him being aroUild children placed him at high

risk for reoffending sexually.

      The jury could reasonably infer that Stuteville has senous difficulty

controlling his behavior based on the evidence presented to them. See Washington,

2013 WL 2732569, at *5-6 (stating that jury may infer that respondent currently

has serious difficulty controlling his behavior based on respondent's past behavior,

respondent's testimony, and expert testimony}; cj In reCommitment of Moss, No.

09-12-00599-CV, 2014 WL 580694, at * 1-2 (Tex. App.-Beaumont Feb. 13,

2014, pet. denied) (tnem. op.) (holding expert testimony that respondent had

multiple convictions for sexual offenses was sufficient to distinguish him from "a

typical recidivist because his multiple convictions evidence that his behavioral

abnormality affects his ability to control his sexual behavior"). Dr. Clayton's

opinion that Stuteville has a behavioral abnormality, as defined by the SVP Act,

necessarily entails a related finding that he has ''serious difficulty controlling his

behavior.'' See Almaguer, 117 S.W.3d at 505-06; see also In re Commitment of

Browning, 113 S.W.3d 851, 862-63 (Tex. App.-Austin 2003, pet. denied).

      Examining all of the evidence in a light most favorable to the verdict, itt

reviewing legal sufficiency, we hold that a rational jury could have found beyond a

reasonable doubt that Stuteville has serious difficulty controlling his behavior. See



                                         20
Mullens, 92 S.W.3d at 885; see also In reCommitment of Chappell, No. 09-13-

00130-CV, 2014 WL 346090, at *1-2 (Tex. App.-Beaumont Jan. 23, 2014, no

pet.) (mem. op.). Further, weighing all of the evidence in a neutral light and

applying the factual sufficiency standard, we hold that a rational jury could have

found beyond a reasonable doubt that Stuteville has serious difficulty controlling

his behavior. See Day, 342 S.W.3d at 206. Such a finding is implicit in the jury's

express finding that Stuteville suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. See Almaguer, 117

S.W.3d at 505-06; see also Browning, 113 S.W.3d at 862--63.

      Because the evidence is both legally and factually sufficient to support the

jury's verdict and implicit finding that Stuteville has "serious difficulty m

controlling [his] behavior," we overrule Stuteville's first and second issues.

                                    Jury Charge

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

when it denied his request to include a separate jury instruction on "serious

difficulty controlling behavior."

      A trial court's decision to refuse a particular instruction in its charge is

reviewed fot an abuse of discretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex.

20 12). A trial court may refuse to give a requested instruction or definition that is

not necessary to enable the jury to render a verdict, even if the instruction or



                                         21
definition is a correct statement of the law. In re Commitment of Taylor, No. 09.....

10-00231-CV, 2010 WL 4913948, at *1-3 (Tex. App.-Beaumont Dec. 2, 2010,

no pet.) (mem. op.).

      Here, the trial court's charge tracks the language of the SVP Act and

contains the applicable statutory definitions, including the statutory definition of

behavioral abnormality. Stuteville requested a separate instruction on the issue of

whether he has serious difficulty in controlling his behavior. The Beaumont Court

of Appeals has consistently held that a trial court's refusal to include a separate

instruction on the issue of "serious difficulty controlling behavior" does not

constitute an abuse of discretion because the lack-of-control question "is implicitly

included within the issue submitted to the jury." Almaguer, 117 S.W.3d at 502,

505-06; In re Commitment of Taylor, 2010 WL 4913948, at *3. Although

Stuteville's requested instruction is a proper statement of case law, see Almaguer,

117 S.W.3d at 505-06, it is not statutory law and was not necessary to enable the

jury to render a verdict in this case. See Taylor, 2010 WL 4913948, at *1-3. The

trial court did not abuse its discretion in denying Stuteville's requested instruction.

      We overrule Stuteville's third issue.

                               Admission of Evidence

      In his fourth and fifth issues, Stuteville contends that the trial court abused

its discretion by admitting evidence of uncharged offenses that he allegedly



                                          22
committed, details of these uncharged offenses, and details of his charged offenses

for the limited purpose of explaining the basis of Dr. Clayton's expert medical

opinion. Stuteville argues that the admission of this evidence was unfairly

prejudicial and that the jury must have considered the evidence for the truth of the

matter asserted, despite the trial court's instructions to the contrary.

A~    Standard of Review

      "We review a trial court's evidentiary rulings for abuse or discretion."

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,906 (Tex. 2000); see Day,

342 S.W.3d at 218. We will not reverse unless the error probably caused the

rendition of an improper judgment. TEx. R. APP. P. 44.1(a)(l).

      An expert in a SVP Act civil commitment proceeding may disclose details

regarding the underlying facts or data that the expert relied on in arriving at her

opinion. See In reCommitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.-

Beaumont 2013, pet. denied); TEX. R. Evm. 705(a) (stating "expert may ...

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

underlying facts or data"). In 311 SVP case, having an expert explain the facts he

considered, including past sexual offenses, and how those facts influenced his

evaluation, assists the jury in weighing the expert's opinion on the ultimate issue.

See In re Commitment of Young, 410 S.W.3d 542, 557 (Tex. App.-Beaumont

2013, no pet.).



                                           23
      Rule of Evidence 403 also provides that relevant evidence may be excluded

"if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or needless presentation of cumulative evidence.''   TEx. R. EVID. 403.
Factors considered when applying the Rule 403 balancing test "include the

probative value of the evidence, the potential of the evidence to impress the jury in

some irrational way, the time needed to develop the evidence, and the proponent's

need for the evidence." Anderson, 392 S.W.3d at 882.

B.    Sufficiency of Limiting Instructions

      In this case, Stuteville objected to Dr, Clayton testifying about the uncharged

offenses and the details of the chatged and uncharged offenses based on hearsay

and argued that the evidence Was mote prejudicial than probative pursuant to Rules

of Evidence 403 and 705(d). The trial court overruled Stuteville's objections,

granted him a running objection, and, at Stuteville's request, gave the jury the

following limiting instruction:

      [H]earsay normally is not admissible. However, certain hearsay
      information contained in records reviewed by experts is allowed into
      evidence through expert testimony. Such evidence is admitted only for
      the purpose of showing the basis of the expert's opinion.

      Stuteville did not object to the contemporaneous limiting instruction that

was given or to the limiting instruction included in the jury charge, or request a

different or additional instruction. Absent record evidence to the contrary, we


                                         24
presume that the jury followed the court's limiting instructions. See Golden Eagle

Archery, 116 S.W.3d at 771; see also Day, 342 S.W.3d at 199. Stuteville has not

directed this court to any te.cord evidence that the jury actually ignored the trial

court's oral and written limiting instructions. Stuteville has failed to rebut the

presumption that the jury followed the trial court's instructions.

C.    Unfair Prejudice?

      Stuteville argues that Dr. Clayton's testimony that he had approximately 27

to 43 victims, in addition to the four victims of his five charged offenses, was

based largely on unsubstantiated rumors, gossip, and multiple levels of hearsay,

and that "[t]he sheer volume ofthis evidence created a substantial danger" that the

jury based its verdict on further punishing Stuteville for the uncharged sexual

offenses.

      Dr. Clayton testified about multiple charged and uncharged offenses

attributed to Stuteville going back as far as 1987. She also testified about the

details associated with these offenses, all of which involved sexual acts against

children. Dr, Clayton explained to the jury how and why the underlying offenses

and details of those offenses assisted her in evaluating Stuteville and in

determining whether he has a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence and that Stuteville posed a "high" risk

of reoffending sexually. In particular, Dr. Clayton testified that the details of



                                          25
Stuteville's charged and uncharged offenses involved examples of "grooming"

which is something that "more sophisticated pedophiles" do in order to offend

against children while lessening the chances of the child telling. Dr. Clayton

testified that such behaviors (grooming, attempting to avoid detection) are risk

factors for reoffending that she considered as part of her behavioral abnormality

assessment in this case.

      According to Dr. Clayton, Stuteville's large Iiutnbet of victims and his long

period of offending are illustrated by the details of the charged and uncharged

offenses that she described for the jury. Evidence of Stuteville's prior uncharged

sexual offenses and the details of the charged and uncharged offenses ate highly

probative and helpful to the jury in explaining the basis of Dr. Clayton's opinion

that he has a behavioral abnormality that makes him likely to engage in a predatory

act of sexual violence.

      Stuteville argues that the admission of the "voluminous, unneeded and

emotionally charged details were ... unfairly prejudicial because of their tendency

to arouse the jury's hostility against Mr. Stuteville." However, the Beaumont Court

of Appeals has repeatedly upheld a trial court's decision to allow an expert to

testify about the details of such offenses in SVP cases. See In re Commitment of

Alvarado, No. 09-13-00217-CV, 2014 WL 1285136, at *10-11 (Tex. App.-

Beaumont Mat. 27, 2014, pet. denied) (mem. op.); In reCommitment of King, No.



                                        26
09-13-00255-CV, 2014 WL 346109, at *2-3 (Tex. App.-·Beaumont Jan. 23,

2014, no pet.) (mem. op.) (holding trial court did not abuse its discretion by

allowing expert to testify about details of respondent's past sexual offenses). Here,

Dr. Clayton testified that sexual deviancy is one risk factor for reoffending and that

the facts of Stuteville's offenses are important in explaining his particular sexual

deviancy (pedophilia), and helping both her and the jury understand the depth and

breadth of the acts he committed while acting out on his sexual deviancy.

      We cannot say that the trial court abused its discretion by determining that

the probative value of this evidence was not substantially outweighed by the

danger of unfair prejudice. See TEX. R. EVID. 403. Based on this record, the trial

court could have reasonably concluded that the facts and details related to

Stuteville's offenses would be helpful to the jury in weighing his testimony and Dr.

Clayton's testimony, and in explaining the basis for Dr. Clayton's opinion that

Stuteville suffers from a behavioral abnormality. Given the purpose for admitting

this evidence and the trial court's limiting instructions, we hold that the trial court

did not abuse its discretion by admitting evidence of uncharged offenses.

D.    Conclusion

      Having determined that the trial court did not abuse its discretion by

admitting evidence of uncharged offense~ allegedly committed by Stuteville, or the

details of both the charged and uncharged offenses, for the limited purpose of



                                          27
explaining the basis of Dt. Clayton's expert medical opm10n, we overrule

Stuteville's fourth and fifth issues.

                                     Directed Verdict

      In his   si~th   issue, Stuteville contends that there is a conflict between Texas

Rule of Civil Procedure 268, which allows for a directed verdict in civil cases, and

section 841.062(a) of the SVP Act, which provides that in a juty trial, the "jury

shall determine whether, beyond a reasonable doubt, the person is a sexually

violent predator." TEX. HEALTH & SAFETY CODE ANN. § 841.062(a); see TEX. R.

Crv. P. 268. Because the SVP Act controls in the event of any such conflict,

Stuteville argues, the trial court erred by granting the State's motion taking the

issue of whether or not he is a "repeat sexually violent offender" away from the

jury. See TEX. HEALTH & SAFETY CODE ANN. § 841.146(b) (West 2010) (stating

SVP Act civil commitment proceedings are subject to rules of civil procedure;

SVP Act controls in the event of a conflict between the statute and the rules).

      The Beaumont Court of Appeals recently rejected a virtually identical

argument in another appeal of an SVP Act civil commitment proceeding. See In re

Commitment of Lemmons, No. 09-13-00346-CV, 2014 WL 1400671, at *3 (Tex.

App.-Beaumont Apr. 10, 2014, no pet.) (mem. op.) ("[W]e perceive no conflict

between [section 841.062(a) of] the SVP statute and the Rules of Civil Procedure




                                            28
that precludes the granting of a directed verdict in a jury trial when no evidence of

probative value raises an issue of material fact on the question presertted."). 5

      Because in SVP Act cases we are bound by the legal precedent of the

Beaumont Court of Appeals, we overrule Stuteville's sixth issue.

                   Improper Comment on Weight of Evidence

      In his seventh issue, Stuteville contends that the trial court improperly

commented on the weight of the evidence during voir dire by directing the jury's

attention to the State's expert's upcoming testimony on pedophilia, and effectively

bolstering the expert's credibility and reliability. The parties disagree as to whether

Stuteville has preserved this issue for our review.

      To preserve error, a party tnust object to the trial judge's alleged improper

conduct or comment when it occurs and request a curative instruction, unless a

proper instruction cannot render the conduct or comment harmless. In re

Commitment of Vanzandt, 156 S.W.3d 671,674 (Tex. App.-Beaumont2005, no

pet.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)); see also

In reCommitment of Barbee, 192 S.W.3d 835, 848 (Tex.. App.-Beaumont 2006,

no pet.) (holding respondent did not preserve his complaint regarding trial judge's
5
      Stuteville does not contend that there is an issue of material fact on the question of
      whether he is a "repeat sexually violent offender," which Would otherwise
      preclude the granting of a directed verdict. See In re Commitment ofScott, No. 09-
      11-00555--cV, 2012 WL 5289333, at *2 (Tex. App.-Beaumont Oct. 25, 2012,
      no pet.) (mem. op.) (citing Prudential Ins. Co. of Am.. v. Fin. Review Servs., Inc.,
      29 S.W.3d 74, 77, 82 (Tex. 2000) (stating directed verdict is proper when
      evidence, viewed in light most favorable to nonmovant, does not raise fact issue)).

                                            29
alleged improper comments during voire dire because he did not object and request

curative instruction). Unwaivable error must be of the type that "cannot be

repaired" and therefore needs no objection. Sf;e Cqpellen v. Cape/len, 888 S.W.2d

539, 547 (Tex. App.-El Paso 1994, writ denied). The claimant bears the burden to

''explain how any comments made by the trial judge were incurable or would

excuse" the claimant's "failure to preserve error.'' Dow Chern. Co., 46 S.W.3d at

241.

       Here, the record reflects that the trial Judge explained to the venire at the

beginning of voir dire that this was a civil commitment proceeding and that it

would be thejtiry's responsibility to determine whether the   Stat~   met its burden of

proving that Stuteville was a "sexually violent predator" as defined by the SVP

Act. The trial judge also informed the venire that he Was the "only Judge in the

state of Texas" that presides over this "vety serious" type of case and that he

understood that they may have a strong reaction to the types of issues that often

come up in these cases, and that he needed to make sure that they would be able to

set their personal feelings aside and decide the case based on the evidence

presented. After briefly discussing the SVP Act and the burden of proof, the trial

judge further stated:

       I need to talk to you about one other area, and that is in these trials
       oftentimes~and I don't know what we're talking about in this case
       because the Judge gets the file put on his desk in the morning when I
       show up here to court. Most people think the Judge reviews the file,

                                         30
      but they just send me Stacks of them. And they say this is the one
      you're trying today. So all that's in my file is the State saying that a
      Respondent is a sexually violent predator and the Respondent is
      saying: No, I'm not. That's essentially what's in my file. But
      oftentimes, having tried this case many, ma,ny times, we talk about
      issues of pedophilia, we talk about issues of homosexuality, we talk
      about issues of incest. Okay? And I want to make sure that-and I'll
      tell you, especially the issue of pedophilia-jqst trying to put a little
      sugar here on this case for you=--,o.if you're fortunate enough to make
      the jury, you know, everything that a person knows about sexual
      offenses, unless you have some training in this area, is something you
      were told by somebody or something you probably read in a magazine
      or on the Internet. And we all know the Internet is never wrong.
      Right? If you're lucky enough to get to serve on this jury you cart
      expect to hear from at least one doctor explaining to you about these
      issues and explaining to you what these issues mean. l'tn not sure if
      any of these issues are coming up in this trial. But if you're luck.y
      enough to make it on the jury it's a.n educational experience for you.
      You don't get any college credit for it, but you do become a little
      smarter, hopefully, through this whole process.

Stuteville did not object to the trial court;s comments or request a curative

instrUction.

      On appeal, Stuteville argues that he had no obligation to object to these

comments because the resulting harm was incurable by instruction. Specifically,

relying upon Brown     v. State,   122 S.W.3d 794, 798 (Tex. Critn. App. 2003),

Stuteville contends that "[ o]nee the trial court tnade clear its support for the state-

expert testimony, no instruction that the venire should disregard the COl.Jrt's opinion

would have been effective." First, Brown is inapposite and does not support such a

proposition. Unlike in the present appeal, the issue of preservation was not before

the appellate court in Brown because the defendant made a contemporaneous


                                          31
 objection to the trial court's comments in that case. Id. The relevant issue in Brown

· was whether the trial judge's comments were improper, not whether they were

 incurable.

       Second, Stuteville has not explained how the trial court's comments were so

 "blatantly and obviously prejudicial" that any confusion or damage caused by the

 comments could not be overcome by a curative instruction. See Cape/len, 888

 S.W.2d at 547. Accordingly, we hold Stuteville has not demonstrated that the trial

 judge's alleged improper comments were incurable. See Dow Chern. Co., 46

 S.W.3d at 241. We further hold that Stuteville has failed to preserve this complaint

 for our review because he did not object or request a curative instruction.

       We overrule Stuteville's seventh issue.

                                     Conclusion

       We affirm the trial court's judgment and otdet of commitment.




                                               Russell Lloyd
                                               Justice

 Panel consists of Justices Jennings, Massengale, and Lloyd.




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