                 In the
            Court of Appeals
    Second Appellate District of Texas
             at Fort Worth
          ___________________________
               No. 02-18-00043-CV
          ___________________________

IN RE: THE COMMITMENT OF LEON DEMARCUS CAIN




     On Appeal from Criminal District Court No. 3
                Tarrant County, Texas
         Trial Court No. CDC3-S-13431-17


     Before Sudderth, C.J.; Gabriel and Pittman, JJ.
      Memorandum Opinion by Justice Pittman
                          MEMORANDUM OPINION

      Appellant Leon Demarcus Cain appeals from the trial court’s judgment

ordering him to be civilly committed as a sexually violent predator (SVP). See Tex.

Health & Safety Code Ann. § 841.003 (West 2017). On appeal, Cain does not

challenge the sufficiency of the evidence to support the finding that he is an SVP. In

two issues, he complains of the trial court’s admission of the State’s experts’ “basis”

testimony under Texas Rule of Evidence 705(d) and of the trial court’s failure to

provide a separate limiting instruction for one of the State’s expert’s basis testimony.

We affirm.

                                  BACKGROUND

      Cain has two convictions for sexual offenses, both of which were for

aggravated sexual assault of a child under 14 and were committed on the same day in

2005 against two different complainants—B., age 9, and C., age 8.

      Both of the State’s experts—Dr. Darrel Turner, a psychologist with a specialty

in forensic psychology, and Dr. Michael Arambula, a psychiatrist—told the jury about

the records they reviewed in forming an opinion of whether Cain suffers from a

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

violence. See id. (defining “sexually violent predator”). When asked about what in

those records they reviewed and relied upon in forming their opinions, Cain asserted

both a hearsay objection and an objection under Rule 705(d) that the prejudicial effect

of the testimony outweighed its probative value. See Tex. R. Evid. 705(d). He argued

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that “presenting these facts to the jury causes the jury to do analysis whether these

facts are in fact true. And in order to conclude that this expert’s opinion is correct,

they have to conclude that the underlying facts are as well.” The trial court overruled

the objections as to both witnesses but granted Cain a running objection as to both.

Before allowing Dr. Turner’s basis testimony, the trial court defined hearsay for the

jury and instructed the jury that the hearsay in the expert’s opinion was admitted only

to show the basis of the expert’s opinion.

      When the trial court overruled his objection to Dr. Arambula’s basis testimony,

Cain asked the trial court to repeat to the jury the hearsay instruction it had given

during Dr. Turner’s testimony and to grant Cain a running objection under Rule

705(d). The trial court declined to instruct the jury again. Both Dr. Turner and Dr.

Arambula opined that Cain had a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

      Dr. John Matthew Fabian, a forensic psychologist and neuropsychologist,

testified for Cain. He disagreed with the State’s experts that Cain is likely to offend

again. Dr. Fabian also testified about information from records regarding Cain’s sex

offense history that formed the basis of his opinion.

      In closing arguments, the State suggested that some of this basis testimony was

evidence that Cain is an SVP, referencing some of that testimony and stating,




                                             3
“[T]here’s some troubling evidence here.” 1 The State further told the jury, “You

heard something about hearsay. There’s an . . . instruction that will be in your jury

instructions. Something that may be hearsay but still may be perfectly reliable.”

       The jury found that Cain is an SVP, and the trial court accordingly ordered him

civilly committed.

                              STANDARD OF REVIEW

       A trial court’s rulings in admitting or excluding evidence are reviewable under

an abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338,

347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if

there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v.

Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if the court

acts without reference to any guiding rules or principles, that is, if the act is arbitrary

or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,

134 S.W.3d 835, 838–39 (Tex. 2004).



       1
        The State’s argument thus mischaracterized the basis testimony, which was not
substantive evidence of Cain’s status as an SVP. Cain did not object to this argument
and does not argue on appeal that the argument was incurable. See Williams v.
Lavender, 797 S.W.2d 410, 414 (Tex. App.—Fort Worth 1990, writ denied) (holding
that by failing to object to an allegedly improper argument, party waived complaint on
appeal). However, we caution that while Rule 705(d) allows basis testimony in SVP
proceedings, a party may not use basis testimony as a back door to admit otherwise
inadmissible evidence that the party then relies on for its truth to meet its burden of
proof, and doing so may constitute harmful error. See Tex. R. Evid. 705; Reliance Steel
& Aluminum Co. v. Sevcik, 267 S.W.3d 867, 874 (Tex. 2008).


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                                    DISCUSSION

I.    The Trial Court’s Admission of the Basis Testimony Was Not Reversible
      Error.

      In his first issue, Cain argues that the trial court erred in admitting the basis

testimony of both Dr. Turner and Dr. Arambula.

      A.     Probative Basis Testimony is Permitted by Rule 705(d).

      Under Texas Rule of Evidence 705, “an expert in a SVP Act civil commitment

proceeding may disclose the underlying facts or data upon which the expert bases his

or her opinion if it is of a type of information relied on by experts in the field when

forming opinions on the subject.” In re Commitment of Barrientos, No. 01-17-00649-CV,

2018 WL 3384563, at *4–5 (Tex. App.—Houston [1st Dist.] July 12, 2018, pet. filed)

(mem. op.). Rule 705(d) provides,

      If the underlying facts or data would otherwise be inadmissible, the
      proponent of the opinion may not disclose them to the jury if their
      probative value in helping the jury evaluate the opinion is outweighed by
      their prejudicial effect. If the court allows the proponent to disclose
      those facts or data the court must, upon timely request, restrict the
      evidence to its proper scope and instruct the jury accordingly.

Tex. R. Evid. 705(d). Under this rule, the trial court could not admit the objected-to

basis testimony if it was otherwise inadmissible and the value in helping the jury

evaluate the experts’ conclusions was outweighed by the danger that the jury would

use the testimony as substantive evidence—either to show that Cain has the requisite

behavioral abnormality or for some other purpose other than to evaluate the expert




                                          5
opinions. See Davis v. State, 268 S.W.3d 683, 701 (Tex. App.—Fort Worth 2008, pet.

ref’d).

          B.    Cain Failed to Show that the Probative Value of the Basis
                Testimony in this Case Was Outweighed by its Prejudicial Effect.

          Cain argues that the trial court must conduct a probative-versus-prejudice

balancing test before admitting basis testimony and that, because the prejudicial value

of the basis testimony outweighed its probative value, the trial court should have

excluded it. He further argues that because even with a limiting instruction, the jury

would have considered the basis testimony for its truth, its admission was harmful.

          Cain’s argument for why the probative value does not outweigh the testimony’s

prejudice is that the State had other “not-so-inflammatory” evidence it could have

used “to show that the state-experts had a basis for saying that Mr. Cain had a

behavioral abnormality.” See Valle v. State, 109 S.W.3d 500, 506 (Tex. Crim. App.

2003) (holding that, given other evidence at trial, the appellant did not need to present

the objected-to basis testimony to show the jury what the expert relied on for its

opinion). However, Cain does not tell us what other evidence the State had to help

the jury evaluate the expert opinions of Dr. Turner and Dr. Arambula. 2 Cain and the



       We also note that Cain did not tell us what part of the basis testimony was so
          2

prejudicial that it had to be excluded under Rule 705. Further, some of the basis
testimony was not hearsay, and Cain does not tell us why the evidence was otherwise
inadmissible so as to be subjected to the balancing required by Rule 705(d). Without
knowing what evidence Cain contends was too prejudicial and what other evidence he
contends the State had available to show the basis of the experts’ opinions, it is

                                            6
State each presented testimony from experts who reached different conclusions about

whether Cain had the requisite behavioral abnormality. It was therefore useful to the

jury to have an explanation for the basis of those opinions in order to evaluate them.

“Having each expert to explain which facts were considered and how those facts

influenced his evaluation assisted the jury in weighing each expert’s testimony and the

opinion each offered regarding the ultimate issue in the case.” In re Commitment of Day,

342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied).

      Further, Cain does not argue that the evidence was insufficient to find that he

is an SVP unless the jury considered the basis testimony for its truth, and Cain points

to nothing in the record to indicate that the jury did not follow the trial court’s

limiting instruction. See Tex. R. App. P. 44.1. While we understand Cain’s concerns,3

the Texas Supreme Court has directed us that we must presume that the jury followed

the instruction. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex.

2003) (stating that unless the record demonstrates otherwise, an appellate court must


difficult to conclude that the trial court erred in its probative-versus-prejudicial
balancing.
      3
         See, e.g., Williams v. Illinois, 567 U.S. 50, 126–27, 132 S. Ct. 2221, 2268–
69 (2012) (Kagan, J., dissenting, joined by Scalia, Ginsburg, and Sotomayor, JJ.)
(noting that when a witness repeats an out-of-court statement as the basis for a
conclusion, “the statement’s utility is then dependent on its truth,” and “to determine
the validity of the witness’s conclusion, the factfinder must assess the truth of the out-
of-court statement on which it relies,” thus “the principal modern treatise on evidence
variously calls the idea that such ‘basis evidence’ comes in not for its truth . . .
‘factually implausible,’ ‘nonsense,’ and ‘sheer fiction’” (citation omitted)).


                                            7
presume that the jury followed the trial court’s instructions). We overrule Cain’s first

issue.

II.      The Trial Court’s Failure in Giving a Second Limiting Instruction Was
         Not Reversible Error in this Case.

         In his second issue, Cain argues that the trial court erred in not again providing

a limiting instruction with Dr. Arambula’s testimony after providing one with Dr.

Turner’s testimony.

         Cain cites Rankin v. State to argue that the timing of a limiting instruction

matters. Rankin held that a trial court may not wait until the jury charge to give a

limiting instruction under Texas Rule of Evidence 105. 974 S.W.2d 707, 712 (Tex.

Crim. App. 1996), opinion withdrawn in part on reconsideration, (stating that “[i]f limiting

instructions impede the improper use of evidence, then an instruction given when the

evidence is admitted limits that evidence to its proper scope immediately” and that

“[a]n instruction given for the first time during the jury charge necessarily leaves a

window of time in which the jury can contemplate the evidence in an inappropriate

manner”). Rankin notes that “the possibility exists that, unless we instruct the jury on

evidence concurrently with its admittance, jurors may, unbeknownst to us, use that

evidence improperly by forming an indelible perception of the defendant that will

work unfairly to his inevitable detriment” and that “[s]ince limiting instructions

operate most effectively when given simultaneously with the relevant evidence, it

would not do to grant trial courts ‘discretion’ to deliver those instructions, after they


                                             8
had been properly requested, at a less opportune time.” Id.; cf. Hammock v. State,

46 S.W.3d 889, 894 (Tex. Crim. App. 2001) (“If the jury is required to consider

evidence in a limited manner, then it must do so from the moment the evidence is

admitted.”).

      But, here, the trial court did not wait until the jury charge to provide a limiting

instruction; the trial court provided a limiting instruction at the time of Dr. Turner’s

testimony. The question is whether that limiting instruction, once given, had to be

repeated for the same type of testimony from Dr. Arambula—whether the absence of

a second instruction allowed the jury to contemplate his basis testimony as substantive

evidence of a behavioral abnormality. We hold that, in this case, the failure to give a

second instruction was not reversible error.

      The trial court provided the following instruction to the jury at the time of Dr.

Turner’s testimony:

              Hearsay is a statement other than one made by the declarant while
      testifying at the current trial or hearing offered in evidence to prove the
      truth of the matter asserted in the statement. Certain hearsay
      information contained in records reviewed by the expert witness—
      witnesses will be admitted before you through expert testimony. Such
      hearsay is 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 in the statement. 4 [Emphasis added.]


      4
        At trial Cain’s attorney requested that the trial court instead give “our
instruction” that he stated was different from the one the trial court proposed to use.
He did not specify for the record what that instruction was, and he does not argue on
appeal that the instruction given by the trial court was incorrect.


                                           9
Importantly, the trial court used the word “witnesses,” plural. With this instruction,

the trial court told the jury that the instruction applied to not just Dr. Turner’s

testimony about information contained in the records he reviewed, but to the other

testifying expert witnesses’ basis testimony as well. Thus, the jury was instructed to

limit its consideration of Dr. Arambula’s testimony prior to his testimony. Presuming,

as we must, that the jury followed that instruction, the jury had no window in which

to consider Dr. Arambula’s basis testimony for any purpose other than to evaluate his

opinion. We therefore overrule Cain’s second issue.

                                  CONCLUSION

      Having overruled Cain’s two issues, we affirm.




                                                       /s/ Mark T. Pittman
                                                       Mark T. Pittman
                                                       Justice

Delivered: November 15, 2018




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