                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00188-CV

                         IN RE: COMMITMENT OF Richard P. BARNES

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CI08424
                            Honorable Jefferson Moore, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: August 15, 2018

AFFIRMED

           Richard P. Barnes appeals the trial court’s judgment and order of civil commitment

following a jury’s determination that he is a sexually violent predator as defined in the Texas

Health and Safety Code. In four issues, Barnes complains of evidentiary errors committed by the

trial court. We affirm the trial court’s judgment and order of commitment.

                                            BACKGROUND

           In enacting the Civil Commitment of Sexually Violent Predators Act, the Texas Legislature

found that “a small but extremely dangerous group of sexually violent predators exists and that

those predators have a behavioral abnormality that is not amenable to traditional mental illness

treatment modalities and that makes the predators likely to engage in repeated predatory acts of

sexual violence.” TEX. HEALTH & SAFETY CODE ANN. § 841.001 (West 2017). It further found
                                                                                     04-17-00188-CV


that a civil commitment procedure for the long-term supervision and treatment of sexually violent

predators is necessary and in the interest of the state. Id. To warrant an individual’s commitment

as a sexually violent predator, the State is required to prove beyond a reasonable doubt that the

person is (1) 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),

841.062(a) (West 2017). A person is a “repeat sexually violent offender” if he has been convicted

of more than one sexually violent offense and a sentence was imposed for at least one of the

offenses. Id. § 841.003(b); see also id. § 841.002(8) (West 2017) (defining a “sexually violent

offense”). 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 2017). A “predatory act” is one that is “directed toward individuals,

including family members, for the primary purpose of victimization.” Id. § 841.002(5) (West

2017).

         On May 17, 2016, the State of Texas filed a petition alleging that Barnes is a sexually

violent predator as defined by section 841.003 of the Health and Safety Code and requesting that

he be committed for treatment and supervision. At the commitment trial, a pen packet reflecting

Barnes’s two convictions for sexually violent offenses was admitted into evidence. In 1998,

Barnes was charged with multiple counts of aggravated sexual assault of a child in two separate

cases. In the first case, Barnes was charged with four counts of aggravated sexual assault against

four-year-old V.H. In the second case, he was charged with five counts of aggravated sexual

assault against six-year-old C.M.     In the first case, Barnes pled guilty to Count I (digital

penetration) and in the second case he pled guilty to Count IV (digital penetration). In both

judgments, it is noted as a term of the plea agreement that “89CR3244 [was] taken into
                                                -2-
                                                                                    04-17-00188-CV


consideration.” In cause number 89CR3244, Barnes was charged with sexually assaulting his

seven-year-old stepdaughter. In both cases, the trial court sentenced Barnes to twenty years in

prison; the sentences were ordered to run concurrently.

       At the commitment trial, the State called Barnes and Dr. Jason Dunham, a psychologist, as

witnesses. Barnes called Dr. John Tennison. Dr. Dunham testified that, in his opinion, Barnes

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

violence. As the basis for his opinion, Dunham interviewed Barnes for approximately two hours.

In addition, he reviewed Barnes’s pen packet, a referral report from Dr. Charles Woodrick,

Barnes’s criminal justice file, and prior law enforcement reports. Dunham explained that in

reaching his opinion, he must consider the details of the underlying convictions. He stated that in

relation to the second conviction, Barnes was accused of assaulting his wife’s niece C.M. on

numerous occasions when she was between six and eight years old. The child reported sexual

intercourse on two or three different occasions. She also reported instances of Barnes kissing her

on the mouth and breasts, fondling her vagina, and putting his finger inside her vagina, and stated

that he told her not to tell anyone. At the time, Barnes was between 44 and 46 years of age. The

abuse was discovered when Barnes’s son alleged that Barnes had assaulted him for a period of

years when he was between nine and thirteen years old; the allegations were never substantiated

and Dunham could not ascertain whether Barnes actually assaulted his son. Dunham stated that

Barnes denied assaulting C.M. and explained that he accidentally touched her while bathing her.

The case records contain Barnes’s confession made to police wherein he stated he put his finger

in the girl’s vagina on two or three occasions, both in the bathtub and on the couch. Barnes blamed

the child for being the instigator, saying she would give him massages and grab his penis and he

would have to tell her to stop. Dunham stated that several risk factors were associated with this



                                               -3-
                                                                                   04-17-00188-CV


offense, including that intercourse with a young child occurred on multiple occasions and that he

blamed the victim.

        Barnes’s first conviction stemmed from his assault of four-year-old V.H, who was the

daughter of Barnes’s co-worker. The child reported that Barnes walked into the living room naked

while she was watching television and also that she woke up during the night a couple of times

with his finger in her vagina. At the time, Barnes was 47 years old. In his interview with Dunham,

Barnes denied the assaults and stated he accidentally touched the girl’s vagina while bathing her.

Dunham explained that this offense showed an increase in deviancy given the victim’s young age

and the fact that he had assaulted a second child. Dunham also considered the fact that the victim

was unrelated to Barnes to be a risk factor for reoffending.

        When Barnes was investigated for assaulting C.M. and V.H., he admitted putting his finger

in his seven-year-old stepdaughter’s vagina. The girl described Barnes putting his penis between

her legs on multiple dates. Dunham was not certain that actual penetration occurred. Barnes

offered her money so that she would not tell anyone what happened. Barnes was arrested but the

charge was dismissed in exchange for Barnes’s guilty plea in the other two cases. Dunham saw

this charge as creating a pattern of behavior showing that Barnes has assaulted young girls over a

long period of time. Dunham stated that because Barnes continued to commit assaults after the

first arrest in 1989, he was classified as a recidivist.

        As part of the 1998 guilty pleas, Barnes made certain stipulations to the court, including

that he had assaulted several other females. Barnes’s half-sister accused him of 1) attempting to

rape her when she was seven years old and 2) raping her when she was seventeen years old.

Barnes’s sister reported that he exposed himself to her at a family gathering. Dunham stated that

these accusations show a pattern of abuse dating back to when Barnes was 25 years old—almost

all his adult life. Barnes was alleged to have exposed himself to another niece when she was 11
                                                   -4-
                                                                                      04-17-00188-CV


or 12 years old. A female friend of his son reported that Barnes asked her to go skinny dipping

with him; she was 12 years old. Another woman reported that Barnes babysat her four-year-old

daughter one night. When she returned at 1:30am to take the child home, the girl was sleeping in

a bed with Barnes while his wife was in another room; the child was only wearing her underwear.

Dunham considered this allegation significant because the child was effectively a stranger to

Barnes.

       Finally, Dunham testified about an uncharged and unadjudicated incident that Barnes did

not stipulate to when he pleaded guilty to his two convictions. An eleven-year-old girl reported to

police that she was selling jewelry door to door; she claimed that Barnes stood at the door behind

his wife; he was wearing a robe and smiling and winking at her with his chest and stomach

exposed. The girl and her friend came inside; Barnes sat on the couch and pulled the robe aside

to show his full penis. The police were called and Barnes stated his penis might have accidentally

been exposed while reaching for something. Dunham thought the victim “might have been a little

exaggerating,” but nevertheless considered the event significant because it showed that Barnes was

not deterred by police intervention.

       Dunham described Barnes as having a very, very strong pedophilia disorder and a long

history of offending against children. Dunham stated that Barnes did not have an extensive

disciplinary record in prison because he did not have access to his “target group,” which was

primarily female children. In Dunham’s opinion, the likelihood of Barnes reoffending was high.

He stated that Barnes was different from the typical sex offender because he has a pattern of

reoffending. Dunham elaborated, stating that Barnes is in the small category of people who

reoffend after the police get involved and after he is charged and taken to jail. In addition, Dunham

stated that Barnes is different from the typical sex offender due to the high number of victims. He

also stated that his sexual deviancy separates him from the typical offender, because Barnes’s
                                                -5-
                                                                                       04-17-00188-CV


victims were all different ages and relation and the acts he committed—from fondling to

intercourse—varied as well.

       Dunham testified that he also considered protective factors in gauging Barnes’s risk of

reoffending. He stated Barnes’s biggest protective factor was his age of 66, because as a man ages,

his risk level for child molesting decreases. Another protective factor is that Barnes is not

antisocial, meaning he does not have any nonsexual criminal history. He did not abuse drugs or

alcohol, maintained stable employment, and did not have disciplinary problems in prison.

Nevertheless, Dunham did not believe these protective factors minimized Barnes’s behavioral

abnormality. Dunham explained that Barnes still has sexual drive, and that he admitted he can still

get an erection and has nocturnal emissions. In fact, Dunham believed Barnes’s age might operate

as a risk factor because it makes him more approachable to children because he has a

“grandfatherly look” and may be able to use his age as a grooming tactic.

       Dunham diagnosed Barnes with pedophilic disorder and explained that he has a sexual

deviancy and arousal toward prepubescent children. Dunham described pedophilia as a paraphilic,

or lifelong disorder. Dunham testified that although Barnes scored “low” on the Static-99R test

which measures future risk of sexual re-offense, he did not believe it was an accurate reflection of

his true risk because the test was not applicable to this type of case. He believed that Barnes’s true

risk category was high.

       Barnes was called as the next witness. He denied ever assaulting a child. He testified that

he accidentally touched C.M. and V.H. on their vaginas while giving them a bath. He denied

knowing any of the other alleged victims and stated he had no memory of any other alleged

assaults. He stated that he could not have assaulted his half-sister in 1975 because he was deployed

and not in the United States.



                                                 -6-
                                                                                     04-17-00188-CV


       Dr. Tennison was the final witness. Tennison interviewed Barnes and reviewed his records

and opined that he does not have a behavioral abnormality. Tennison testified that Barnes’s score

on the Static-99R test reflects a low chance of recidivism. Tennison further testified that the

recidivism rate for people who have offended against children is at six percent at age 60 and drops

to zero by age 70. Tennison described Barnes as fitting the typical profile of someone with

pedophilic disorder, and thus, as a typical sex offender, he would have the normal rates of

recidivism. He explained that it is typical for pedophiles to have numerous victims of varying

relation. Tennison did not believe Barnes was currently likely to engage in predatory acts of sexual

violence.

       The jury found that Barnes is a sexually violent predator with a behavioral abnormality that

makes him more likely to engage in a predatory act of sexual violence. The trial court signed a

final judgment and a commitment order civilly committing Barnes in accordance with section

841.081 of the Texas Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 841.081

(West 2017). This appeal followed.

                                           DISCUSSION

       In his first issue, Barnes challenges the admission of evidence regarding the administrative

screening process used to detect civil commitment candidates. During his testimony, Dr. Dunham

explained that in making his assessment, he relied on a report by Dr. Charles Woodrick in which

Woodrick concluded that Barnes suffered from a behavioral abnormality. Barnes did not object to

Dunham’s testimony below, but now contends that admission of Dunham’s testimony regarding

the screening process constitutes fundamental error that may be raised for the first time on appeal.




                                                -7-
                                                                                                    04-17-00188-CV


         The Beaumont Court of Appeals 1 has held that this type of alleged error “does not fall

within the narrow scope of the ‘fundamental error’ doctrine recognized by the Texas Supreme

Court” in civil cases. In re Commitment of King, No. 09–13–00255–CV, 2014 WL 346109, at *5-

6 (Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.). Barnes urges us to depart from the

conclusion reached by our sister court and to instead follow the Supreme Court of Kansas. In In

re Foster, 127 P.3d 277 (Kan. 2006), the prosecutor was accused of misconduct when she

described the screening process in opening statements. The Kansas high court held that the

prosecutor telling the jury—before it even heard any evidence—that a multidisciplinary team of

professionals, a team of prosecutors (including the attorney prosecuting the case), and the judge

have all previously determined that sexually violent predator commitment proceedings should

proceed against the defendant was extremely prejudicial and denied the defendant his right to a

fair trial. Id. at 288.

         Here, there has not been an allegation of prosecutorial misconduct, and we thus decline to

follow the Kansas court. Because Barnes’s complaint was not preserved for review, we overrule

his first issue. See In re Commitment of King, 2014 WL 346109, at *5-6; see also TEX. R. APP. P.

33.1.

         In his second issue, Barnes contends the trial court erred by overruling his hearsay and

Rule of Evidence 705(d) objections to the State’s expert revealing that an expert before him also

believes Barnes suffers from a behavioral abnormality. As previously discussed, Dunham testified

that he relied on the report prepared by Dr. Woodrick in which Woodrick determined that Barnes

suffers from a behavioral abnormality. Dunham was asked whether it was usual in commitment



1
  Until the Sexually Violent Predator Act was amended in 2015, the district court in Montgomery County, Texas had
exclusive jurisdiction over all petitions filed under the Act, with appeals heard by the Beaumont Court of Appeals and
the Texas Supreme Court. In re Commitment of Mares, 521 S.W.3d at 66.

                                                        -8-
                                                                                      04-17-00188-CV


proceedings for there to be another evaluation done by a psychologist and he answered, “yes.”

Barnes objected on hearsay grounds and on the ground that the testimony was more prejudicial

than probative. See TEX. R. EVID. 705(d). The trial court overruled the objections, stating that it

would permit Dunham to discuss his review of Barnes’s psychological records.

       We review a trial court’s decision to admit evidence in a commitment proceeding for an

abuse of discretion. In re Commitment of Mares, 521 S.W.3d 64, 69 (Tex. App.—San Antonio

2017, pet. denied). The Beaumont Court of Appeals has determined that the Rules of Evidence

permit hearsay evidence similar to that at issue in this case. See In re Commitment of Carr, No.

09-14-00156-CV, 2015 WL 1611949, at *2 (Tex. App.—Beaumont Apr. 9, 2015, no pet.) (mem.

op.) (trial court did not err by permitting testifying expert to testify about nontestifying expert’s

report that concluded appellant suffers from behavioral abnormality); In re Commitment of Winkle,

434 S.W.3d 300, 315 (Tex. App.—Beaumont 2014, pet. denied) (trial court did not abuse its

discretion in admitting, over hearsay objection, expert’s testimony that two nontestifying experts

found appellant has behavioral abnormality); In re Commitment of Garcia, 09-12-00194-CV, 2013

WL 6558623, at *6 (Tex. App.—Beaumont Dec. 12, 2013, pet. denied) (mem. op.) (same); see

also TEX. HEALTH & SAFETY CODE ANN. §§ 841.023, 841.041(a) (West 2017). An expert may

base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or

personally observed. TEX. R. EVID. 703. If experts in the particular field would reasonably rely

on those kinds of facts or data in forming an opinion on the subject, they need not be admissible

for the opinion to be admitted. Id. Rule of evidence 705(a) permits a trial court to admit the

underlying facts or data on which an expert has based an opinion. TEX. R. EVID. 705(a); In re

Commitment of Ochoa, No. 09-15-00486-CV, 2016 WL 5417441, at *4 (Tex. App.—Beaumont

Sept. 29, 2016, pet. denied) (mem. op.); In re Commitment of Carr, 2015 WL 1611949, at *2.

Thus, when an expert relies upon hearsay in forming his opinion, and that hearsay evidence is of
                                                -9-
                                                                                     04-17-00188-CV


a type reasonably relied upon by such experts, the jury is generally permitted to hear it. See In re

Commitment of Sawyer, 05-17-00516-CV, 2018 WL 3372924, at *5 (Tex. App.—Dallas July 11,

2018, no pet. h.) (mem. op.); In re Commitment of Carr, 2015 WL 1611949, at *2; In re

Commitment of Salazar, No. 09-07-345-CV, 2008 WL 4998273, at *4 (Tex. App.—Beaumont

Nov. 26, 2008, pet. denied) (mem. op.). If the underlying facts or data would otherwise be

inadmissible, those facts or data should be excluded only if their probative value in helping the

jury evaluate the opinion is outweighed by their prejudicial effect. TEX. R. EVID. 705(d). Rule

705(d) provides for the use of a limiting instruction by the court to ensure that otherwise

inadmissible evidence is not improperly used by the jury. TEX. R. EVID. 705(d); In re Commitment

of Sawyer, 2018 WL 3372924, at *5.

       We cannot conclude the trial court abused its discretion in admitting the evidence under

Rule 705(d). We agree with the Beaumont Court of Appeals that Rule 705 permits a trial court to

allow a testifying expert to give a nontestifying expert’s opinion that an individual suffers from a

behavioral abnormality. Here, Dr. Dunham testified that his evaluation of Barnes included a

review of various records, including Dr. Woodrick’s prior evaluation of Barnes. Dunham testified

that he relied upon the information and data contained in Dr. Woodrick’s report. Further, the trial

court properly applied Rule 705(d) by giving the jury a limiting instruction. The trial court

instructed the jury orally and in the charge that the hearsay was admitted only for the purpose of

showing the basis of the expert’s opinion and could not be considered as evidence to prove the

truth of the matter asserted. Absent record evidence to the contrary, we presume the jury followed

the court’s limiting instructions. See In re Commitment of Mares, 521 S.W.3d at 71; In re

Commitment of Sawyer, 2018 WL 3372924, at *6. Barnes does not assert there is anything in the

record to show the jury ignored the court’s instructions. Thus, we conclude the trial court did not



                                               - 10 -
                                                                                     04-17-00188-CV


abuse its discretion in determining that the evidence was admissible and not unfairly prejudicial.

We overrule Barnes’s second issue.

       In his third and fourth issues, Barnes contends the trial court committed reversible error

when it admitted details of uncharged allegations on which Dunham relied in forming his opinion

that Barnes suffers from a behavioral abnormality. When Dunham was asked how the allegations

surfaced that led to his two convictions, Dunham answered that Barnes’s son threatened to commit

suicide after revealing that his father anally assaulted him for a period of three years. Dunham

stated that Barnes’s son later recanted the allegation. Dunham was not sure whether Barnes

assaulted his son, but stated that if he did, it meant that Barnes assaulted male and female victims

and “almost exhausted the target pool.” Barnes objected to hearsay and also re-urged his motion

in limine regarding unadjudicated offenses.

       The trial court also permitted Dunham to testify about an uncharged and unadjudicated

incident where Barnes was accused of exposing himself to a young girl as she sold jewelry door

to door. Unlike the other allegations discussed at trial, this particular incident was not one that

Barnes stipulated to when he pleaded guilty to his two convictions for aggravated sexual assault

and admitted to assaulting other young girls that did not result in convictions. Dunham testified

that the complainant may have been exaggerating and conceded he was “not sure that it happened.”

Nonetheless, Dunham found the incident of import because it showed that Barnes “got in trouble,”

yet acted out later on. Barnes objected to any mention of the allegation.

       Again, we review a trial court’s decision to admit evidence for an abuse of discretion. See

Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011); In re Commitment of Mares, 521

S.W.3d at 69. We must uphold a trial court’s evidentiary ruling if there is any legitimate basis in

the record to support it. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998). In addition, we will not reverse a trial court for an erroneous evidentiary ruling unless the
                                               - 11 -
                                                                                     04-17-00188-CV


error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1 (reversible

error in civil cases). In assessing harm, we review the entire record and require the complaining

party to demonstrate that the judgment turns on the particular evidence admitted. See Nissan Motor

Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004); In re Commitment of Romo, No. 09–12–

00598–CV, 2013 WL 5874615, at *3 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.).

       Assuming the trial court erred in admitting the objected-to evidence, we are not persuaded

Barnes was harmed. Given the evidence in the record before us, the admissions from Barnes, his

prior convictions, and the testimony from Dr. Dunham that Barnes suffers from a behavioral

abnormality that makes him likely to engage in predatory acts of sexual violence, Barnes has not

demonstrated that the trial court’s judgment turns on the particular evidence about which he

complains in issues three and four. Barnes has failed to demonstrate that the exclusion or

admission of evidence in these issues probably caused the rendition of an improper judgment. See

TEX. R. APP. P. 44.1(a)(1).

       In addition, the trial court provided a limiting instruction to the jury which provided that,

“Hearsay normally is not admissible at trial. However, certain hearsay information contained in

records reviewed by the expert is allowed into evidence through expert testimony. Such evidence

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.” Barnes’s counsel did not object

further. “We must presume the jury followed the instruction; therefore, any potential harm arising

from [the] testimony . . . was cured by the limiting instruction.” In re Commitment of Riojas, No.

04-17-00082-CV, 2017 WL 4938818, at *6 (Tex. App.—San Antonio Nov. 1, 2017, no pet.)

(mem. op.) (quoting In re Commitment of Mares, 521 S.W.3d at 71). We therefore overrule

Barnes’s third and fourth issues.



                                               - 12 -
                                                                                 04-17-00188-CV


                                        CONCLUSION

      Having overruled Barnes’s issues on appeal, we affirm the trial court’s judgment and order

of commitment.

                                               Rebeca C. Martinez, Justice




                                            - 13 -
