                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00329-CV
                            ____________________


         IN RE COMMITMENT OF PETE AGAPITO HERNANDEZ

_______________________________________________________              _____________ _

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-11-12012 CV
________________________________________________________              ____________ _

                           MEMORANDUM OPINION

      The State of Texas filed a petition seeking the involuntary civil commitment

of Pete Agapito Hernandez as a sexually violent predator. See Tex. Health &

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

a jury found Hernandez to be a sexually violent predator, the trial court rendered a

final judgment and an order of civil commitment. Subsequently, Hernandez

appealed, challenging four of the rulings the trial court made during the course of

his trial. In his first issue, Hernandez contends the trial court abused its discretion

by allowing the State to summarize the evidence that it intended to present during

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the trial during its opening statement. In issue two, Hernandez contends the trial

court abused its discretion by allowing the State to introduce Hernandez’s

responses to the State’s requests for admission into evidence. In issue three,

Hernandez argues the trial court abused its discretion by allowing the State to

introduce evidence of underlying facts or data supporting the opinions of its

experts when they testified during the trial. In issue four, Hernandez argues the

trial court abused its discretion by sustaining the State’s objection to one of the

questions his attorney posed to the State’s forensic psychologist, Dr. Jason

Dunham.

      We conclude that Hernandez has not shown that any of his issues require

that we reverse the trial court’s judgment. With respect to issue one, Hernandez has

not shown that the matters discussed by the State’s attorney caused the jury to

render an improper verdict. With respect to the remaining issues, Hernandez has

failed to demonstrate that the trial court abused its discretion with respect to the

rulings at issue. We affirm the trial court’s judgment.

                                     The Statute

      Under the SVP statute, the State bears the burden of proving beyond a

reasonable doubt that the person it seeks to commit for treatment is a sexually

violent predator. Id. § 841.062 (West 2010). As defined by the Legislature, a

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sexually violent predator is 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) (West 2010). Under

the statute, a “‘[b]ehavioral abnormality’” is “a congenital or acquired condition

that, by affecting a person’s emotional or volitional capacity, predisposes the

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

a menace to the health and safety of another person.” Id. § 841.002(2) (West Supp.

2012). In another case arising under the SVP statue, we stated that “[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).

                                 Opening Statement

      In issue one, Hernandez contends the trial court abused its discretion by

permitting the State’s attorney to summarize the evidence during her opening

statement. With respect to opening statement, Rule 265(a) of the Texas Rules of

Civil Procedure provides that the party with the burden of proof on the whole case

“shall state to the jury briefly the nature of his claim or defense and what said party

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expects to prove and the relief sought.” Tex. R. Civ. P. 265(a). During opening

statement, the State’s attorney generally described the testimony she expected to

present during the case. In part of her opening statement, the State’s attorney

mentioned various specific facts about two of Hernandez’s prior sexually violent

offenses, a rape that occurred in 1993 and an aggravated kidnapping with intent to

violate and sexually abuse the victim that occurred in 1994. The record shows that

Hernandez’s attorney did not object when the State’s attorney first began to

mention specific facts about the 1993 incident; instead, the objection occurred after

the State’s attorney had already discussed many of the facts about the 1993 rape.

The trial court overruled Hernandez’s objection. With respect to Hernandez’s 1994

aggravated kidnapping conviction, the record shows that Hernandez failed to

object when the State’s attorney described that crime.

      Generally, by detailing evidence during opening statement, counsel places

matters in front of the jury before the trial court has an opportunity to determine

whether it is admissible. As a result, an opening statement that discusses evidence

that might not later be admitted carries the potential of confusing the jury if the

evidence the trial court admits differs from the evidence counsel mentioned in

opening statement. See Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. Civ.

App.—Austin 1975, writ ref’d n.r.e.).

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      Hernandez argues that he was harmed because introducing graphic details

concerning his prior sexual offenses during opening statement prejudiced the jury.

In response, the State contends that by failing to timely object, Hernandez waived

his objections with respect to the 1994 aggravated kidnapping. With respect to the

1993 rape, the State does not defend the degree of detail contained in its opening

statement; instead, the State argues that any error created by the trial court’s ruling

was harmless. See Tex. R. App. P. 44.1(a)(1).

      After comparing the statements made in opening statement with the

evidence admitted during the trial, we conclude that the statements made by the

State’s attorney in opening about the 1993 rape do not vary in any significant

manner from the evidence that the trial court subsequently admitted. Generally,

when evidence consistent with the details described in the opening statement is

developed during trial, the trial court’s error in overruling an objection

complaining about counsel’s mention of the evidence in opening statement is

harmless. See Guerrero v. Smith, 864 S.W.2d 797, 800 (Tex. App.—Houston [14th

Dist.] 1993, no pet.). We conclude that the matters the State mentioned during

opening statement about the 1993 rape did not cause the jury to reach an improper

verdict. See Tex. R. App. P. 44.1.




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      With respect to the matters discussed in opening statement about the 1994

aggravated kidnapping, Hernandez failed to preserve error because he failed to

object. See Tex. R. App. P. 33.1(a) (requiring a party to make a timely request,

objection, or motion and obtain a ruling from the trial court to preserve error for

appeal). Even had Hernandez lodged an objection, the matters mentioned during

opening statement about the 1994 kidnapping do not vary materially from the

evidence admitted during trial. We overrule issue one.

                             Requests for Admission

      In issue two, Hernandez complains the trial court abused its discretion by

allowing the State to read his responses to the State’s requests for admission into

evidence. See generally Tex. R. Civ. P. 192.1(e) (listing permissible forms of

discovery, which include requests for admission). According to Hernandez, the

State used his responses to diminish the State’s burden of proving that he is a

sexually violent predator.

      Unless otherwise provided by the SVP statute, an SVP commitment

proceeding is subject to the Texas Rules of Civil Procedure. See Tex. Health &

Safety Code Ann. § 841.146(b) (West 2010). Rule 198.3, which governs the effect

of admissions, states that “[a] matter admitted under this rule is conclusively

established as to the party making the admission unless the court permits the party

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to withdraw or amend the admission.” Tex. R. Civ. P. 198.3 (Effect of Admissions;

Withdrawal or Amendment). We have previously held that there is no conflict

between the SVP statute and Rule 198, and that admissions may be used

appropriately in SVP cases. See In re Commitment of Malone, 336 S.W.3d 860,

862 (Tex. App.—Beaumont 2011, pet. denied). In other words, if relevant to the

disputed issues, a trial court may allow a party’s responses to the opposing party’s

requests for admission to be used as evidence in SVP cases.

      Hernandez argues that by using his responses to the admissions, the State

lowered its burden of proof. We disagree that by reading Hernandez’s responses

into evidence, the State lowered its burden of proof. During voir dire, the State

explained that it bore the burden of proof on its claims. In closing argument, the

State reminded the jury that it had to prove that Hernandez is a sexually violent

predator beyond reasonable doubt. The trial court instructed the jury in the charge

that a “‘yes’” answer was to “be based on a belief beyond a reasonable doubt.” The

charge required the jury to find that Hernandez is a sexually violent predator

“beyond a reasonable doubt.”

      While the State used Hernandez’s responses as evidence, his responses did

not lower the State’s burden of proving its case to a lower standard than the one

required, beyond reasonable doubt. See In re Commitment of Delacruz, No. 09-11-

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00554-CV, 2012 Tex. App. LEXIS 649, at **6-7 (Tex. App.—Beaumont Jan. 26,

2012, pet. denied) (mem. op.). We conclude that the State’s use of Hernandez’s

responses was not improper. We overrule issue two.

                         Disclosure of Underlying Facts and Data

      In issue three, Hernandez contends the trial court abused its discretion in

allowing the State’s experts, Dr. Michael Arambula and Dr. Jason Dunham, to

describe the details of Hernandez’s prior sexual offenses when they testified.

During trial, Hernandez objected to the experts disclosing the details of his prior

sexual offenses to the jury. At trial, Hernandez argued that the details of his prior

offenses were inadmissible as hearsay, and that admitting the testimony detailing

the facts of how he committed his prior offenses would unfairly prejudice the jury.

The trial court overruled his objections.

      Before admitting the testimony at issue, the record shows the trial court

instructed the jury about using information that experts rely on in forming

opinions, stating:

      Hearsay is not admissible as evidence in trial except as provided by
      narrow and specific hearsay exceptions. The hearsay evidence
      contained in the records about the Respondent’s underlying sex
      offenses, arrests, conduct while on probation or parole, prison
      disciplinary actions and other such hearsay would ordinarily not be
      admissible in the trial; however, because the State’s expert witnesses
      and this witness specifically, relied upon those records in forming his

                                            8
      opinion, you can hear about these records for the narrow purpose of
      explanation or support of that expert’s opinion.

In the jury charge, the trial court gave the jury a similar limiting instruction,

informing the jury that such information “was admitted only for the purpose of

showing the basis of the experts’ opinion[s] and cannot be considered as evidence

to prove the truth of the matter[s] asserted.”

      Rule 705(a) of the Texas Rules of Evidence allows an expert to disclose the

facts or data on which the expert has based an opinion. See Tex. R. Evid. 705(a). If

the trial court admits underlying facts that are otherwise inadmissible, the court, on

request, is required to give the jury a limiting instruction. See Tex. R. Evid. 705(d).

When the trial court has given the jury a limiting instruction, we presume that it

was followed. See In re Commitment of Day, 342 S.W.3d 193, 198-99 (Tex.

App.—Beaumont 2011, pet. denied).

      We conclude the trial court had the discretion to admit the testimony at

issue. In light of the jury instructions regarding using hearsay in records that are

relied upon by the experts, the evidence the trial court admitted to explain the bases

of the expert testimony was not unfairly prejudicial. We overrule issue three.

                                 Cross-Examination

      While Dr. Dunham was testifying, Hernandez’s counsel asked: “Does it

matter in your opinion where Mr. Hernandez gets this sex offender treatment in the
                                           9
future that you think he needs?” The trial court sustained the State’s objection that

the question was not relevant. In issue four, Hernandez argues the trial court should

have allowed him to ask this question. According to Hernandez, his question is

relevant to the jury’s determining if he is likely to commit a future sexually violent

offense. According to the State, the possibility that Hernandez could receive future

treatment “is not relevant to the question of whether he is currently a sexually

violent predator.”

      The testimony from the trial does not show that Hernandez had any concrete

plans to be treated by healthcare professionals in programs designed to reduce the

risk that he would future commit sexually violent offenses. The record reflects that

while in prison, Hernandez failed to complete a program designed to reduce his

risk of recidivism. Additionally, the record reflects that during the trial, Hernandez

testified he did not feel he needed any treatment.

      On the record before us, the trial court properly exercised its discretion by

treating the relevance of the question as a question of relevancy conditioned on

whether Hernandez had shown he would obtain treatment in a program that would

lower his risk of committing another sexually violent offense. See Tex. R. Evid.

104(b) (Relevancy Conditioned on Fact). The question Hernandez sought to ask is

premised on the assumption that he intended to obtain treatment, a conditional fact

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that was never proven. We conclude that the question at issue, on the record before

us, was not a fact of consequence. See generally Tex. R. Evid. 401 (“‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable that it would be without the evidence.”); Tex. R. Evid. 402 (“Evidence

which is not relevant is inadmissible.”). We hold the trial court did not abuse its

discretion by disallowing the question at issue. See Tex. R. Evid. 104(b).

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

judgment.

      AFFIRMED.



                                              ________________________________
                                                       HOLLIS HORTON
                                                            Justice


Submitted on June 7, 2013
Opinion Delivered September 19, 2013
Before Gaultney, Kreger, and Horton, JJ.




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