In Re Commitment of Charles Edward Ballard, III v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 14, 2023
• Docket: 10-23-00020-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00020-CV

IN RE COMMITMENT OF CHARLES EDWARD BALLARD, III

From the 82nd District Court Falls County, Texas Trial Court No. CV41068

MEMORANDUM OPINION

Appellant, Charles Edward Ballard III, was found to be a sexually violent predator

under the Sexually Violent Predator Act (“SVP Act”). See TEX. HEALTH & SAFETY CODE

ANN. §§ 841.001-.151. On appeal, Ballard contends that the trial court reversibly erred by

refusing to issue a limiting instruction regarding the disclosure of facts and data

underlying the basis of an expert opinion. We affirm.

Limiting Instruction

In his sole issue on appeal, Ballard complains that the trial court erred by refusing

to give a limiting instruction during the testimony of the State’s expert witness, Kyle M.

Clayton, Ph. D., pursuant to Texas Rule of Evidence 705(d). See TEX. R. EVID. 705(d). Texas Rules of Evidence 703 and 705 allow a testifying expert to relate on direct

examination the reasonably reliable facts and data on which the expert relied in forming

the expert’s opinion, subject to an objection under Texas Rule of Evidence 403 that the

probative value of such facts and data is outweighed by the risk of undue prejudice. See

id. at R. 703, 705; Stam v. Mack, 984 S.W.2d 747, 750 (Tex. App.—Texarkana 1999, no pet.);

see also In re Commitment of Smith, No. 10-22-00254-CV, 2023 Tex. App. LEXIS 3340, at **2-

3 (Tex. App.—Waco May 17, 2023, no pet. h.) (mem. op.). In particular, Rule 705(d)

provides, in part, “[i]f the court allows the proponent to disclose those facts and data the

court must, upon timely request, restrict the evidence to its proper scope and instruct the

jury accordingly.” TEX. R. EVID. 705(d).

In the instant case, the following exchange occurred, which serves as the basis for

Ballard’s complaint on appeal:

Q [State’s Attorney]: And so what was the first sexual offense he was convicted of?

A [Dr. Clayton]: The first sexual offense was an aggravated sexual assault of a child against his step-brother ....

Q: And can you briefly tell us what do the records indicate happened with this offense?

[Defense counsel]: And at this time[,] I’m going to have to object to hearsay based on the probative value of this being—not being outweighed by the prejudicial value, and I would also request a limiting hearsay if you obj—if you rule against my hearsay objection. In re Commitment of Ballard Page 2 THE COURT: Okay. Your objection is overruled and I’m going to give your hearsay instruction in the Charge. Alright. But I’m not going to give it right now.

To present a complaint for appellate review, the record must show that a

complaint was made to the trial court that “stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial

court aware of the complaint, unless the specific grounds were apparent from the

context[.]” TEX. R. APP. P. 33.1(a)(1)(A). Ballard neither informed the trial court nor made

it aware that, pursuant to Rule 705(d), Ballard requested a contemporaneous instruction

to the jury. The specific ground now raised by Ballard was also not apparent from the

context of his complaint at trial.

Similarly, in another recent civil commitment appeal, this Court concluded that

appellant did not preserve his complaint regarding the trial court’s refusal to give the

jury a contemporaneous limiting instruction regarding hearsay under Rule 705(d) where

appellant made the following requests: “at this time I would request the Court issue a—

a hearsay instruction to the jury regarding these records” and “I still would request that

you instruct the jury about regarding the hear—hearsay instruction that we submitted.”1

Smith, 2023 Tex. App. LEXIS 3340, at *4 n.4. Therefore, based on the foregoing, we

1 This Court further noted that “[n]o submitted instruction is included in the record.” In re Commitment of Smith, No. 10-22-00254-CV, 2023 Tex. App. LEXIS 3340, at *4 n.4 (Tex. App.—Waco May 17, 2023, no pet. h.) (mem. op.).

In re Commitment of Ballard Page 3 conclude that Ballard did not preserve this complaint.2 We overrule Ballard’s sole issue

on appeal.

Conclusion

We affirm the judgment of the trial court.

STEVE SMITH Justice

Before Chief Justice Gray Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed June 14, 2023 [CV06]

2 And even if Ballard had preserved this complaint, we cannot say that he was harmed considering that the trial court included a limiting instruction on hearsay in the jury charge and that Ballard testified about the offense that Dr. Clayton was describing when defense counsel objected. See TEX. R. APP. P. 44.1(a)(1) (stating that no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the complained-of error probably caused the rendition of an improper judgment); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (“Clearly, erroneous admission [of evidence] is harmless if it is merely cumulative.”); see also In re Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied) (stating that appellate courts presume the jury followed the trial court’s limiting instruction).

In re Commitment of Ballard Page 4