 
 

                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00304-CV
                           ____________________


           IN RE COMMITMENT OF TIMOTHY RAY RAMSEY

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-01-00379 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Timothy Ray Ramsey

(Ramsey) as a sexually violent predator. See Tex. Health & Safety Code Ann. §§

841.001-.151 (West 2010 & Supp. 2014) (SVP Statute). A jury found that Ramsey

is a sexually violent predator, and the trial court rendered a final judgment and an

order of civil commitment. Ramsey filed an appeal.

      In his first appellate issue, Ramsey argues the trial court erred in denying

Ramsey’s request that his expert evaluation be videotaped. In issues two and three,

Ramsey challenges the legal and factual sufficiency of the evidence supporting the

jury’s finding that he has serious difficulty controlling his behavior. In his fourth

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issue, Ramsey contends he was “unduly prejudice[ed]” by Dr. Clayton’s testimony

because Dr. Clayton relied on “hearsay evidence[.]” In his fifth and final issue,

Ramsey argues the trial court erred in limiting his attorney’s cross-examination of

Dr. Clayton. We affirm the trial court’s judgment.

                                   THE EVIDENCE

      The jury heard Ramsey’s admissions to the State’s requests for admissions

wherein Ramsey admitted to being convicted of touching a child for lustful

purposes in Mississippi in 1995, to being convicted of indecency with a child in

2003, and to being convicted for failure to comply with sex offender registration in

2003. He admitted that he received a ten-year sentence for his conviction for

touching a child for lustful purposes (with one year to be served in prison and nine

suspended), that he received a fifteen-year sentence for the conviction for

indecency with a child, and that he received a ten-year sentence for the conviction

for failure to comply with sex offender registration. Ramsey admitted that one of

his victims was a six-year-old girl and that the other victim was a six- or seven-

year-old child. Ramsey also admitted that he has a problem with alcohol, that he

has not completed the Sex Offender Treatment Program, that he has received major

disciplinaries while in prison, that he believes he is a sex offender, and that he has

fantasized about his victims.




                                          2
 
 
 

       At trial, Ramsey testified that his stepfather sexually abused him from age

eight to eighteen. Ramsey explained that as to his conviction for touching a child

with lustful purposes, he offended against the six-year-old child over a two-and-a-

half-year period. Ramsey stated that he was like “a warring lion after a piece of

meat, is like you got to have it. If I don’t have it, I want - - I’m hungry, you know. .

. . It’s like an addiction, a drug addiction. . . .[I]f I didn’t get it, I’d do anything to

get it[.]” He testified that before he went to prison for the 1995 conviction, he shot

himself in the head after his uncle died and “[m]y conscience was eating at me.

Why? Because I told myself, I would never do this to a child because I was done

the same way, but what I did, I did.”

       Ramsey stated that after he served the one year in prison in Mississippi, he

was released, and, as a requirement of moving to Texas, he participated in a Sex

Offender Treatment Program (SOTP) in Texas. According to Ramsey he did not

learn “that much” because he “only did . . . about four weeks” in that program.

About seven years later, Ramsey offended against a six year old child in his

neighborhood. Ramsey testified that after he offended against that child he gave

her ice cream and told her that “she needs to tell her mother about what happened

because this will not happen again and I guarantee it, because I will be in prison at

the time.” He testified he received a fifteen-year sentence for that offense and a

ten-year sentence for failing to register as a sex offender.

                                            3
 
 
 

      According to Ramsey, his disciplinaries while incarcerated included

tampering with a locking mechanism, threatening an officer, possession of

contraband, slicing his wrists with a razor blade, spitting in an officer’s face, and

assaulting an officer. Ramsey was sent to the Persistently Aggressive Mentally Ill

Offenders Program (PAMIO), where he received a disciplinary for getting into a

fight while in the program. Ramsey explained that he completed the Sex Offender

Education Program (SOEP) because he was told to complete it as part of his parole

plan and if “[he] didn’t do it, [he] wouldn’t get [his] parole.” At the time of trial,

Ramsey was on parole. Ramsey admitted that he has “a problem[,]” that he told a

doctor the year before the trial that he is sexually attracted to children, and that he

“probably will” reoffend. He explained the “[b]ottom line . . . I can’t be around

children[,]” and he said that if he found himself in a situation, like at a mall, where

children were around and he could not “figure out a way to go, then I’m in

trouble.” He testified that if he is going to the mall, for example, in order for him to

control himself he would not use the main entrance where children usually are, but

would instead use a side-entrance “where it’s no traffic and . . . there’s no

children.”

      Dr. Lisa Clayton, a medical doctor specializing in psychiatry, with a

subspecialty in forensic psychiatry, testified for the State. Dr. Clayton is board-

certified in general and forensic psychiatry. Based on her training, her experience,

                                           4
 
 
 

the records she reviewed, and her interview with Ramsey, Dr. Clayton testified she

believes Ramsey suffers from a behavioral abnormality that makes him likely to

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

methodology for assessing a behavioral abnormality, which she testified is

consistent with the accepted standards in her field. She testified that the records she

reviewed and relied upon in making her assessment are the type of records

typically used by experts who do this type of evaluation.

       Dr. Clayton diagnosed Ramsey with pedophilic disorder, antisocial

personality disorder, and alcohol disorder. She explained that pedophilic disorder

is a chronic condition that involves primitive urges that are “lifelong[.]” According

to Dr. Clayton, Ramsey abused both of the victims many more times than the

instances for which he was convicted.

       Dr. Clayton acknowledged that Ramsey became tearful during his testimony

at trial, but she questioned his genuineness because, according to Clayton, Ramsey

did not exhibit remorse when he discussed the offenses with her. Dr. Clayton

further testified that

       [Ramsey] has a severe sexual deviancy and pedophilia, as he
       described it, a hunger, that he can’t control. He even said an addiction
       at one point, that -- but I think the hunger that he can’t control, that
       he’d do anything to get it, is true about the way he feels about
       children.
              I think his attempts -- yes, he doesn’t need to be around
       children. . . . But I think, when he . . . is out in the community for any
       length of time . . . there’s going to be the stimulation, and he’s going
                                           5
 
 
 

      to be -- whether it’s conscious or even subconsciously drawn towards
      -- as he said, he’s thinking about going to the mall. Well, he can’t go
      to a mall. . . . [D]ue to his pedophilia . . . he’s got to plan about how
      he’s going to avoid children. But just by being in the mall, he’s going
      to be around children, no matter which entrance he goes into.
             So . . . if it’s genuine, it’s very limited and it’s not enough. And,
      yes, despite . . . being sorry and saying he’s hurt the children, that was
      the first time I ever heard him or saw him . . . have what I would
      consider empathy for the victim, at the end of his testimony today. But
      I just don’t think it’s enough. . . . he’s severely sexually deviant and
      by his own admission, still has those urges and has difficulty
      controlling himself with those urges.

      Dr. Clayton also explained that, as a result of Ramsey shooting himself in

the head, Ramsey suffers from what Clayton considers “mild neurocognitive

disorder due to traumatic brain injury[,]” and that Ramsey is “less likely to . . . sit

and process things and more likely to act on it.” As to Ramsey’s alcohol disorder,

Dr. Clayton testified that alcohol is a disinhibitor and leads to a higher incidence of

reoffending. She acknowledged that Ramsey had participated in a Sex Offender

Educational Program, which is a therapy treatment where offenders “sit[] in a

room, listen[] to someone lecture and teach him about these concepts[.]” But, Dr.

Clayton explained that in her opinion “it doesn’t begin to let him apply those . . .

and be in a therapeutic-type environment[.]” Dr. Clayton agreed that Ramsey

testified that when he came to Texas he had treatment for four weeks, but Dr.

Clayton stated that the four weeks of treatment “doesn’t count” because, as

Ramsey admitted, he quit attending. According to Dr. Clayton, when she met with

Ramsey “he threw out some catch phrases” he had learned in the sex offender
                                           6
 
 
 

education program he attended while incarcerated, but when she asked him to

explain how the concepts relate to him, Dr. Clayton did not think he had

“incorporated it” and she did not “expect him to.”

      Dr. Clayton reviewed the Static-99R actuarial test administered by Dr.

Dunham and another SOTP evaluator. She admitted that Ramsey’s score indicated

a low risk for reoffending. But, Dr. Dunham noted in his report that he believed

that the score grossly underestimates Ramsey’s true level of risk because it doesn’t

consider all offenses, the long period over which Ramsey offended and multiple

times, and his abuse of alcohol. Dr. Clayton testified that she agreed with

Dunham’s opinion that the actuarial score did not accurately indicate Ramsey’s

risk for reoffending.

      Dr. Clayton identified the following factors that indicate that Ramsey has a

high risk for recidivism: that he has the sexual deviancy of pedophilia, that he

offended against an acquaintance, that he has antisocial personality disorder, that

he has offended after he has been incarcerated or been punished for his offenses,

that he has offended when he was in age-appropriate relationships, that he has a

history of offending even after he had four weeks of treatment, that he has a history

of violent behavior toward others since he has been incarcerated, that he has

alcohol dependence, that he is in overall good health, and that he is only forty-five




                                         7
 
 
 

years old. Dr. Clayton testified that she could not identify any positive factors for

Ramsey.

              Ramsey did not call any witnesses to testify on his behalf. A jury found that

Ramsey is a sexually violent predator. The trial court rendered a final judgment

and an order of civil commitment, and Ramsey appealed.

                                            RIGHT TO VIDEOTAPED EXPERT EVALUATION

              In his first issue, Ramsey argues the trial court violated Ramsey’s statutory

and constitutional right to cross-examine witnesses when the trial court denied

Ramsey’s request to videotape his evaluation by Dr. Clayton. Ramsey “urges this

Court to find that the statutory right to cross-examination is best preserved in civil

commitment cases when all mental examinations are videotaped[]” or, in the

alternative, “asks this Court to require the trial court to make a case-by-case

assessment as to whether due process and the interest of justice require an

individual defendant’s mental examination to be videotaped.” Ramsey contends

that whether to allow examinations to be videotaped should “at least [] be

determined on a case-by-case basis[,]” and that under the test set out in Mathews v.

Eldridge1 regarding the amount of due process to be afforded in a proceeding, he

should have been allowed to have his mental examination videotaped.

                                                            
              1
         Mathews v. Eldridge, 424 U.S. 319 (1976). Determining what process is
due in a particular proceeding requires consideration of three factors: (1) the
private interest affected by the proceeding or official action; (2) the countervailing
                                                               8
 
 
 

              Ramsey argues that In re Commitment of Smith, 422 S.W.3d 802 (Tex.

App.—Beaumont 2013, pet. denied), supports his argument. In Smith, we held that

neither the SVP statute nor the Fourteenth Amendment require that counsel be

present during a psychiatrist’s post-petition civil commitment examination. 422

S.W.3d at 807. Ramsey argues that our holding in Smith “hinged on the fact” that

the appellant in Smith could not explain why his counsel could not adequately

advise him and protect his rights without being physically present during the

examination. According to Ramsey, “[t]his Court indicated that a case-by-case

basis could therefore be applied when it analyzed whether the appellant in Smith

had shown that particularized need.” Ramsey asserts that if he had been able to

videotape the mental evaluation his attorney could have cross-examined Dr.

Clayton about the examination so the jury could weigh her testimony and

credibility “against her own previous words[,]” and the jury would have been able

to see whether Ramsey had the opportunity to express regret over his actions

during the evaluation. Ramsey contends he was harmed by not having the

examination videotaped because his attorney could not impeach Dr. Clayton in

regards to her testimony about what happened at the mental examination, and the

jury could not assess the methods Dr. Clayton employed during the evaluation and



                                                                                                                                                                                                
governmental interest supporting use of the challenged proceeding; and (3) the risk
of an erroneous deprivation of that interest due to the procedure used. Id. at 335.
                                                                                              9
 
 
 

could not determine whether Dr. Clayton was objective, whether she asked leading

questions, or whether she employed acceptable evaluation methods.

      First, we must determine whether Ramsey has a statutory right to have his

mental examination videotaped. Section 841.061 outlines the rights of a person on

trial for civil commitment under Chapter 841. See Tex. Health & Safety Code Ann.

§ 841.061 (West 2010). Section 841.061(b) provides that the person or the State is

entitled to a jury trial on demand, and section 841.061(c) provides that the person

and the State are each entitled to an immediate examination of the person by an

expert. Id. § 841.061(b), (c). Section 841.061(d) provides that at trial the person

has the following additional rights:

      (1) the right to appear at the trial;
      (2) except as provided by Section (f), the right to present evidence on
      the person’s behalf;
      (3) the right to cross-examine a witness who testifies against the
      person; and
      (4) the right to view and copy all petitions and reports in the court file.

See id. § 841.061(d). “A person who is on trial to determine the person’s status as a

sexually violent predator is required to submit to all expert examinations that are

required or permitted of the state to prepare for the person’s trial.” Id. § 841.061(f).

After reviewing the plain language of the statute, we conclude that the SVP statute

does not expressly grant Ramsey the right to a videotaped mental evaluation.

      Second, we examine Ramsey’s claims that section 841.061(d)(3), which sets

out his right to cross-examine witnesses, encompasses “the ability to probe into
                                          10
 
 
 

what happened at the mental examination.” Ramsey claims that by denying him the

right to a videotaped mental examination, the trial court effectively rendered

Ramsey’s right to cross-examine Dr. Clayton “an empty right[.]” The right to

cross-examine witnesses as set forth in section 841.061(d)(3) states that it grants

the person subject to commitment the right to cross-examine a witness who

testifies against the person. Again, there is nothing in the statute that expressly

grants the right to videotape the examination of Ramsey. We conclude that

Ramsey’s statutory right to cross-examine witnesses does not include the right to

videotape the psychiatric examination. Furthermore, we reject Ramsey’s argument

that without the right to videotape the examination, his right to cross-examine Dr.

Clayton is “an empty right.” Ramsey had the right to cross-examine Dr. Clayton at

trial and also had other methods of exploring the expert’s testimony before trial.

For example, Ramsey could have taken the deposition of Clayton before trial.

      Finally, we address Ramsey’s argument that, in the alternative, this Court

should require that the trial court make a case-by-case assessment as to whether

due process and the interest of justice require an individual defendant’s mental

examination to be videotaped, and further whether or not the trial court erred in

denying Ramsey the right to videotape Dr. Clayton’s mental examination of

Ramsey.




                                        11
 
 
 

      In Smith, Smith argued he had the right to have his attorney present during

his mental examination. Smith relied on the dissenting opinion in Simmons v.

Thompson, 900 S.W.2d 403, 404 (Tex. App.—Texarkana 1995, orig. proceeding),

a case concerning a physical examination in breast implant litigation. This Court

noted that the majority in Simmons held that “‘the right to have one’s attorney

present at a physical examination ordered pursuant to Rule 167a is a matter to be

determined within the discretion of the trial court on a case-by-case basis

according to evidence showing a particularized need therefor.’” Smith, 422 S.W.3d

at 805 (quoting Simmons, 900 S.W.2d at 404). In determining whether the

Fourteenth Amendment required that counsel be present during a psychiatrist’s

post-petition examination, this Court in Smith looked to the factors as set out in

Mathews v. Eldridge, wherein the court stated that determining what process is due

in a particular proceeding requires consideration of three factors: (1) the private

interest affected by the proceeding or official action; (2) the countervailing

governmental interest supporting use of the challenged proceeding; and (3) the risk

of an erroneous deprivation of that interest due to the procedure used. Mathews v.

Eldridge, 424 U.S. 319, 335 (1976).

      In applying these factors, this Court concluded that (1) “[t]he psychiatric

examination is not a deposition conducted for the purpose of discovering [the

defendant]’s testimony; rather, the examination assists the expert in assessing . . .

                                         12
 
 
 

whether the person has a behavioral abnormality that makes him likely to engage

in a predatory act of sexual violence;” (2) counsel’s presence during the interview

might disrupt the examination and might disrupt and limit the effectiveness of the

interview from a medical standpoint; and (3) “[t]he risk of an erroneous

deprivation of a person’s interest in a valid examination is lessened because the

expert is subject to being deposed and any evidence that might lead to the

suppression of the expert’s opinion testimony could be discovered in that process

and could form the basis for an objection to the expert’s testimony at trial.” Smith,

422 S.W.3d at 806-07. For the same reasoning outlined in Smith, we conclude that

due process does not require Ramsey’s mental evaluation to be videotaped.

      In the present case, Ramsey is not arguing he is entitled to counsel at the

mental examination, but he is arguing that he has a right for the mental

examination to be videotaped as part of his right to cross-examine Dr. Clayton.

Ramsey testified at his trial, and he exercised his right to cross-examine Dr.

Clayton at trial. Ramsey also had the right to depose Dr. Clayton prior to trial.

Ramsey could have pointed out or identified the alleged inconsistencies that he

believed existed, and he could have cross-examined Dr. Clayton about the

questions she asked during her interview or about her testimony regarding the

mental evaluation. Ramsey also could have presented his own expert at trial to

counter the conclusions of Dr. Clayton, but he did not do so.

                                         13
 
 
 

       Furthermore, Ramsey has not shown that the alleged error probably resulted

in an improper verdict, or that it prevented him from presenting his issue on

appeal. Tex. R. App. P. 44.1. Ramsey contends that he was actually harmed by the

trial court’s denial of his request for a videotaped mental examination because “Dr.

Clayton’s testimony regarding statements he made to her completely contradicted

what previous evaluators had noted.” However, the record of the trial indicates that

Ramsey testified before the jury that his condition was similar to an addiction, that

he had not completed a sex offender treatment program, and that when he

committed one of his offenses it was, in his own words, like he was “a warring lion

after a piece of meat, is like you got to have it. If I don’t have it, I want - - I’m

hungry, you know. . . . It’s like an addiction, a drug addiction. . . .[i]f I didn’t get it,

I’d do anything to get it[.]” The evidence also demonstrated that about a year

before trial, Ramsey admitted to a doctor that he is still sexually attracted to

children and that he “probably will” reoffend. The jury heard Ramsey testify to his

offenses and that he did not believe he could be around children. Dr. Clayton

explained to the jury that Ramsey’s records show that he acts on sexual urges and

his attraction to prepubescent girls “despite having gotten in trouble for [those

actions] in the past[,]” he has a history of alcohol abuse, he had a “traumatic,

chaotic” childhood including many years of being a victim of sexual abuse by his

uncle, he had multiple disciplinaries while incarcerated, and he lacked sex offender

                                            14
 
 
 

training. The jury also heard Dr. Clayton’s diagnoses for Ramsey and that, based

on her training, her experience, the records she reviewed, and her interview with

Ramsey, Dr. Clayton believes Ramsey suffers from a behavioral abnormality that

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

evidence presented at trial, we cannot say the trial court’s ruling in denying

Ramsey the right to videotape Dr. Clayton’s interview of Ramsey probably caused

the rendition of an improper verdict. See Tex. R. App. P. 44.1. Issue one is

overruled.

                                   SUFFICIENCY

      In issues two and three, Ramsey contends the evidence is legally and

factually insufficient to support the jury’s verdict because the State failed to

present evidence demonstrating that Ramsey has serious difficulty controlling his

behavior. Ramsey argues that the State’s expert, Dr. Clayton, concluded that

because Ramsey was a repeat offender, had prior issues with alcohol, and has an

alleged antisocial personality disorder, he must have serious difficulty in

controlling his behavior. Ramsey maintains Dr. Clayton’s testimony was

“speculative, generic, and circular.” Ramsey claims that Clayton’s diagnosis of

antisocial personality disorder is factually lacking and that most of her explanation

of how Ramsey’s pedophilia affected his ability to control himself rested on his

own explanation of the sexual urges he felt in the past, not the present. According

                                         15
 
 
 

to Ramsey, even if the State has shown Ramsey has difficulty in controlling his

behavior, the State failed to prove that he has a serious difficulty controlling his

behavior.

      Under a legal sufficiency review, we assess all 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. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont

2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in

the testimony, weigh the evidence, and draw reasonable inferences from basic facts

to ultimate facts. Id. at 887. Under a factual sufficiency review, we weigh 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 re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied).

      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. §

841.062(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. Id. at § 841.003(a)

(West Supp. 2014). A “behavioral abnormality” is “a congenital or acquired

                                          16
 
 
 

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). “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.” In re Commitment of Almaguer, 117 S.W.3d 500,

506 (Tex. App.—Beaumont 2003, pet. denied).

      The jury was entitled to draw reasonable inferences from basic facts to

determine ultimate fact issues, and to resolve conflicts and contradictions in the

evidence by believing all, part, or none of the witnesses’ testimony. In re

Commitment of Barbee, 192 S.W.3d 835, 842 (Tex. App.—Beaumont 2006, no

pet.). “[P]roof of serious difficulty in controlling behavior” is required to civilly

commit a defendant under the Act. See Kansas v. Crane, 534 U.S. 407, 413 (2002).

Ramsey’s current difficulty in controlling his behavior can be inferred from his

past behavior, his own testimony, and the expert’s testimony. See In re

Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at

*13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.).

      Considering all the evidence in the light most favorable to the verdict, we

conclude the jury could reasonably find beyond a reasonable doubt that Ramsey

                                         17
 
 
 

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

sexual violence. See Mullens, 92 S.W.3d at 887. The record does not reflect a risk

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

overrule issues two and three.

                            THE EVIDENTIARY RULING

      In his fourth issue, Ramsey argues that the trial court erred in overruling

Ramsey’s objections to the hearsay evidence relied upon by the expert witness in

her testimony, and that the testimony was “unreliable and contained details that

were substantially prejudicial to Appellant.” Ramsey lodge a hearsay objection at

trial to Dr. Clayton’s testimony concerning the details of the offenses. The trial

court overruled the objection but provided the jury with a limiting instruction. See

Tex. R. Evid. 705(d).

      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




                                        18
 
 
 

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).

      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 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 Day, 342 S.W.3d at 198-99.

       To preserve error concerning the admission of evidence, a party must timely

object, stating the specific ground of objection, if the specific ground is not

apparent from the context. Tex. R. Evid. 103(a)(1); see also Tex. R. App. P.

33.1(a). The trial court granted Ramsey a running objection as to hearsay.

However, Ramsey did not object to Dr. Clayton’s testimony on the basis that the

graphic details of the offenses were prejudicial, and he has waived that objection.

See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).




                                        19
 
 
 

      Dr. Clayton explained the facts she considered in forming her opinions, and

how those facts affected her evaluation. The trial judge could reasonably conclude

the evidence assisted the jury in weighing the testimony and considering the

opinion each expert offered. The trial judge could also reasonably conclude the

experts’ testimony was not unfairly prejudicial. See In re Commitment of Ford, No.

09-11-00425-CV, 2012 Tex. App. LEXIS 2221, at **4-5 (Tex. App.—Beaumont

Mar. 22, 2012, no pet.) (mem. op.); Day, 342 S.W.3d at 199. Nevertheless, as

noted earlier, the trial court provided the jury with a limiting instruction. We

presume the jury followed the trial court’s limiting instruction. Day, 342 S.W.3d at

199. On this record, we cannot conclude that the trial court erred in overruling the

objection, or that the trial court’s limiting instruction was insufficient. Issue four is

overruled.

                                CROSS-EXAMINATION

      In his fifth issue, Ramsey maintains that the trial court erred in not allowing

Ramsey’s counsel to question Dr. Clayton regarding one of the documents she

relied upon in making her assessment. The admission or exclusion of evidence is

reviewed under an abuse of discretion standard. Enbridge Pipelines (E. Tex.) L.P.

v. Avinger Timber, L.L.C., 386 S.W.3d 256, 262 (Tex. 2012). We will not reverse a

judgment on the admission or exclusion of evidence unless the appellant

establishes that the trial court’s ruling was in error and that the error was

                                           20
 
 
 

reasonably calculated to cause and probably did cause the rendition of an improper

judgment. See In re Commitment of McCarty, No. 09-12-00083-CV, 2013 Tex.

App. LEXIS 7855, at *5 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem.

op.); see also Tex. R. App. P. 44.1(a)(1). “‘[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.’” In re Commitment of Hill, No. 09-11-00593-CV, 2013 Tex. App.

LEXIS 1881, at *18 (Tex. App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.)

(quoting State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.

2009)).

      During defense counsel’s cross-examination of Dr. Clayton, the following

exchange occurred:

      [Defense Counsel]: Were you in the courtroom earlier when Mr.
      Ramsey was asked if he was currently on parole?

      [Dr. Clayton]: Yes.

      [Defense Counsel]: In your review of the records, do you recall a case
      summary from the Board of Pardons and Paroles?

      [Dr. Clayton]: Yes, I reviewed that.

      [Defense Counsel]: Was that part of the information that you reviewed
      and relied upon?

      [Dr. Clayton]: Yes.


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      [Defense Counsel]: Do you recall, at the end of that case summary,
      where Mr. Ramsey was evaluated as a low risk?

      [Dr. Clayton]: I - - do you want to refer it to me, refer what page?

      [Defense Counsel]: Your Honor, may I approach the witness?

      THE COURT: Yes, you may.

      [Defense Counsel]: This is SPU 19 (tendering). Do you recall that
      document?

      [Dr. Clayton]: No, that’s not mine. I - - I know, I’m looking at SPU 19
      and it isn’t that. Oh, here. Okay. Yes.

      [Defense Counsel]: And to your knowledge, based on the testimony
      that was elicited earlier in the courtroom, Mr. Ramsey was granted
      parole by Texas Department of Criminal Justice. Correct?

      [State’s Counsel]: Objection to relevance, Your Honor.

      THE COURT: Sustained.

      [Defense Counsel]: He opened the door, Your Honor.

      THE COURT: Who opened the door?

      [Defense Counsel]: [State’s counsel] did, when he asked if Mr.
      Ramsey was on parole.

      THE COURT: But parole is not here, testifying. You didn’t establish
      a foundation that she relied upon that in coming to her opinion, so it’s
      not necessarily admissible at this point.

      On appeal, Ramsey asserts that “the trial court’s finding that [Ramsey]’s

attorney had not established that Dr. Clayton relied on whether [Ramsey] had been

granted parole or not in reaching her opinion about [Ramsey] completely

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contradicts Dr. Clayton’s unambiguous statement that she reviewed and relied

upon the evaluation done by the Board, which inherently would have included its

determination to grant him parole.” He contends that the trial court “ruled that the

foundation was not established to ask Dr. Clayton about the [Board of Pardons and

Parole] assessment, which was incorrect.”

      From our reading of the record, Dr. Clayton testified that she had reviewed

the case summary from the Board of Pardon and Paroles, which was part of the

information that she reviewed and relied upon in forming her opinion. The State

did not object to the defense’s question to Dr. Clayton regarding whether at the end

of the assessment the Board of Pardons and Parole determined Ramsey was a low

risk. Defense counsel asked Dr. Clayton if she knew, based on the prior trial

testimony, if Ramsey was granted parole by the Texas Department of Criminal

Justice. After the trial court sustained the State’s relevancy objection to that

question, the trial court explained that the defense had not established a foundation

that Dr. Clayton had relied “upon that,” i.e., the fact that he had been granted

parole, in forming her opinion. To the extent that Ramsey argues that this

amounted to a finding that the defense had not established a foundation that Dr.

Clayton had relied on the Board of Pardons and Parole’s assessment in forming her

opinion, we disagree. Nevertheless, even if the question and ruling of the trial court

was as interpreted by Ramsey, Ramsey failed to offer and perfect a bill of

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exception. Ramsey never made an offer of proof regarding the additional “cross-

examination” or point that Ramsey intended to pursue. See Tex. R. Evid. 103(a)(2).

Even if respondent’s proposed questions were relevant to an issue in dispute, his

failure to make an offer of proof under Rule 103(a) of the Texas Rules of Evidence

preserved nothing for appellate review. In re Dees, No. 09-11-00036-CV, 2011

Tex. App. LEXIS 9807, at *14 (Tex. App.—Beaumont Dec. 15 2011, pet. denied)

(mem. op.). Furthermore, assuming without deciding that the trial court erred in

making the ruling in question, Ramsey has failed to establish that the alleged 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). The fifth point of error is overruled.

      Having overruled all of Ramsey’s appellate issues, we affirm the trial court’s

judgment.

      AFFIRMED.

                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice

Submitted on December 29, 2014
Opinion Delivered March 26, 2015

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




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