In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00140-CV __________________
IN RE COMMITMENT OF CHRISTOPHER CHARLES VALSIN __________________________________________________________________
On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. 1002-Y __________________________________________________________________
MEMORANDUM OPINION
A jury unanimously determined beyond a reasonable doubt that Christopher
Charles Valsin is a sexually violent predator pursuant to the Sexually Violent
Predators Act. See Tex. Health & Safety Code Ann. §§ 841.001–062. Valsin presents
two issues challenging the trial court’s judgment: Valsin challenges the factual
sufficiency of the evidence to support a finding beyond a reasonable doubt that he is
a sexually violent predator and asserts he was harmed when the trial court admitted
evidence before the jury of an allegation of a prior sexual offense that a grand jury
“no billed.” See id. § 841.003(a)(2). Having reviewed the record and arguments
asserted, we affirm the trial court’s judgment.
1 I. Evidence
A. Sexually Violent Offense Convictions
Valsin has two separate convictions for sexual assault of a child. The first
conviction arose from a 1996 assault against an unrelated fifteen-year-old victim
(“Gina”), when Valsin was 28 years old. 1 After entering a plea of guilty, Valsin
received deferred adjudication for the first offense. However, in 2002, after violating
multiple terms of his community supervision, he was adjudicated guilty of the
offense. 2 Valsin was convicted for a second offense of sexual assault of a child after
entering a guilty plea, which stemmed from a 2001 incident with a thirteen-year-old
victim (“Anna”) who lived in his neighborhood and was the same age as his stepson.
Valsin was around the age of 33 years at the time of the second offense. This second
offense occurred while he was on community supervision for the first offense.
B. Other Convictions
The evidence introduced at trial also established Valsin has prior convictions
for prostitution and indecency with a child by exposure. The indecency with a child
by exposure offense involved Anna’s three-year-old cousin (“Nancy”), to which
1 We refer to the victims in this case using pseudonyms to protect their identities. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 Valsin testified these violations included being unsupervised around children, possession of pornography, missing sex offender treatment classes, and nonpayment of fees. 2 Valsin pleaded guilty. He also has a conviction for “tampering with an ID number[]”
involving possession of a weapon on which the serial number had been removed.
C. Other Arrests/Offenses Not Resulting in Convictions
Evidence at trial showed that Valsin had been arrested for assaulting his ex-
wife, but she decided not to pursue criminal charges and no conviction resulted from
the incident. Additionally, of import to this appeal, the trial court admitted evidence,
over defense objection, that Valsin’s stepdaughter made an outcry when she was age
twelve, alleging Valsin repeatedly sexually assaulted her beginning when she was
ten years old. The grand jury ultimately no billed the charges pertaining to the
stepdaughter. The trial court overruled Valsin’s objection to this evidence but read
his requested limiting instruction to the jury multiple times throughout the
proceedings and included the limiting instruction in the formal written jury charge.
Valsin agreed he has been arrested eight to ten times in his lifetime; including for
unlawful carrying of a weapon, trespass, and multiple incidents of physical assault
against women.
D. Trial Testimony
1. Dr. Timothy Proctor
Forensic psychologist Dr. Timothy Proctor testified for the State. Proctor was
asked to evaluate and provide an opinion if Valsin has a behavioral abnormality that
makes him likely to engage in predatory acts of sexual violence. Proctor’s evaluation
3 methodology included reviewing records from multiple sources, personally meeting
with Valsin for approximately three hours, and performing certain psychological
assessment tests. 3 Proctor testified that the records he reviewed were the same type
of materials reviewed and relied on by experts in his field.
Proctor testified that he scored three actuarial measures, including the Static-
99R, the Risk for Sexual Violence Protocol (“RSVP”), and the Hare Psychopathy
Checklist (“PCL-R”). Proctor said there is no test that will specifically tell you if
someone has a behavioral abnormality. Proctor explained that the actuarial tests can
assist “by giving information about the person’s personality, how their mind works,
and what their risk is of committing a sexually violent offense.”
On the Static-99R, Proctor scored Valsin as a 3, which “indicates an average
level of risk[]” compared to other sex offenders. Proctor said the Static-99R authors
identified two groups, routine and high-risk/high-needs, and Valsin is most
appropriately compared to the high-risk/high-needs group. Proctor explained that he
felt Valsin fell within the high-risk/high-needs group due to his re-offending and
multiple evaluations that determined he has a behavioral abnormality. Proctor
testified that he did not believe the Static-99R risk level of 3 was accurate, rather he
3 Proctor testified that he received and reviewed offense reports about sexual offenses and other criminal behavior, court records, prison systems records regarding his behavior, and records from mental health professionals who have interviewed him there, some mail, phone calls that he made while incarcerated, and depositions. 4 felt Valsin would be more accurately categorized in a level just above the average
range based on the totality of the information; he described this as an “adjusted
actuarial approach[]” which meant he used the published measures only as a starting
point. He testified that there are additional risk factors that indicate someone could
be at a higher risk of re-offending. He explained the Static-99R does not account for
all risk factors but is a starting point for evaluating the person. Proctor cautioned that
just because Valsin did not score high on the Static-99R, it does not mean that he
does not suffer from a behavioral abnormality. On the PCL-R, Proctor scored Valsin
as a 19 out of 40, with the average PCL-R score being 22. Proctor testified that the
chances for re-offending for those in the high-risk/high-needs group was 14 percent
at 5 years and 22.9 percent at 10 years.
Proctor testified that he considered convictions and allegations of assault that
did not result in convictions as pertinent to his evaluation. With respect to the
allegations by Valsin’s stepdaughter, Proctor stated that “if [the no billed offense]
were all there was in Mr. Valsin’s history, I wouldn’t put much weight on it[]” but
“when you have a history of sexual offending against children and then you have
within that this allegation . . . in the context of what we already know, is really
important[,]” and “it wasn’t just one time[,] [i]t had actually been going on since she
was 10.” Proctor testified “[t]hat’s important data that has to be considered.” He
5 explained that this was important to get a “complete picture” of what was going on
with Valsin.
Proctor defined sexual deviance as “being sexually aroused by nonconsenting
persons in some way.” Proctor testified that Valsin was sexually deviant in the past
and continues to be. In relation to a behavioral abnormality, he noted two of the most
“widely considered general risk factors are sexual deviance, and . . . antisocial
lifestyle.” Proctor explained Valsin’s past behaviors demonstrated this, and at times,
he continued to acknowledge his ongoing sexual interest in underage teenagers.
Proctor explained that sexual deviance is a chronic condition, especially sexual
attraction to children.
Proctor discussed Valsin’s risk factors and protective factors to re-offending.
He described Valsin’s offenses and persistence after punishment as “a really
significant indicator of increased risk.” He also testified that history of supervision
problems is an additional risk factor, which Valsin had, and it can affect one’s risk
of re-offending after punishment. Proctor testified that Valsin reported having 30 or
more sexual partners, and this sexual promiscuity constitutes an additional risk
factor, which he explained shows the strength of an individual’s sexual urges and
one’s inability to regulate them. He testified these behaviors indicated Valsin “was
being driven by the sexual desires, as opposed to planning and thinking about what
he was doing.” He also noted Valsin does not have a history of stable relationships
6 and he has sexually offended with others while he was in long-term relationships.
Proctor testified that despite Valsin’s representations that he has a low sex drive,
while in prison Valsin communicated with three different women about romantic
things, which shows his continued focus on sex and having multiple relationships at
the same time. Proctor said that Valsin’s protective factors against reoffending
would include his age, social support from his mother and sister, and his completion
of sex offender education. 4
Proctor testified that he did not fully diagnose Valsin with any specific
paraphilias, which he described as various sexual disorders; however, he noted “rule-
out consideration” of pedophilia. 5 He explained that pedophilia was a sexual
attraction to prepubescent children. Proctor testified that he was very conservative
by not diagnosing Valsin with pedophilia, but he felt evidence existed to warrant it.
Although he did not consider Valsin a psychopath, Proctor diagnosed him with
“[u]nspecified personality disorder with antisocial traits” and gave a rule-out
4 Proctor distinguished between sex offender education and sex offender treatment. He explained that while Valsin had completed sex offender education, which lowered his risk some, he had not completed sex offender treatment, which would include working through his offense cycles. He testified Valsin’s prior sex offender treatment was not enough to significantly reduce his risk. 5 Proctor explained that a “rule-out” diagnosis meant “the opposite” of ruling something out and no longer considering it; rather, he said that “while I didn’t fully diagnose it, it certainly warrants consideration and continued consideration.” 7 diagnosis of antisocial personality disorder. Proctor explained how sexual deviance
coupled with antisocial personality disorder heightens one’s risk.
Proctor explained that Valsin’s pattern “demonstrates impairment of his
emotional and volitional capacity in controlling his behavior.” Proctor concluded
that Valsin has a behavioral abnormality that makes him likely to engage in
predatory acts of sexual violence.
2. Valsin’s Testimony
When Valsin testified before the jury, he admitted to some version of the
sexual assaults, but he attempted to minimize his culpability in each incident. Valsin
testified that he believed Gina was a willing participant, even though he was aware
that she could not consent because of her young age. He also testified that Anna
came to his house, took her clothes off, and asked him if he wanted to have sex. He
also explained to the jury that while he “attempted to” have sex with Anna, he
stopped himself. Valsin denied doing anything inappropriate with Nancy but said
she saw him without his shirt on while he was with Anna, and he expressed remorse
for that. Valsin admitted to the jury that he had previously accused each of the
victims of lying about their allegations.
Valsin also admitted at trial to physically assaulting multiple women,
including his ex-wife. Valsin agreed he has convictions for prostitution and
tampering with an identification number, along with arrests for trespassing,
8 unlawfully carrying a weapon, and several assaults. Valsin acknowledged having
thirty or forty sexual partners in his lifetime. Valsin also admitted to telling one of
the State’s attorneys that sex offender treatment was not beneficial to him.
3. Dr. Michael Arambula’s Testimony
Board-certified forensic psychiatrist Dr. Michael Arambula also testified for
the State. Arambula has been doing behavioral abnormality evaluations for over 15
years and has been involved in over 150 cases. Arambula testified that he “was asked
to review records and evaluate Mr. Valsin and to determine whether he had a
behavioral abnormality that made him likely to engage in a predatory act of sexual
violence.” Arambula described his methodology for conducting his behavioral
abnormality evaluation. This included reviewing various records, assessments, and
meeting with Valsin for over two hours. Arambula said he relied on the records to
help form his opinions in this case.
Arambula testified that based on the information he had reviewed, Valsin has
a behavioral abnormality that makes it likely he would engage in a predatory act of
sexual violence. Arambula explained why he formed that opinion and that he was
trained to look for certain risk factors for recidivism, including sexual deviance and
the number of victims over time. He characterized this as the “chronicity” of the
sexual deviance. Arambula attached most of the clinical weight to Valsin’s sexual
misconduct over the years; specifically, the number of victims, the number of
9 offending acts while on supervision, and the fact that Valsin offended despite having
received treatment. Arambula testified that he attached more weight to Valsin’s
sexual deviance and noted that he has a personality pathology with some antisocial
features. Arambula explained that antisocial personality is considered a significant
risk factor for recidivism through the literature, and while Valsin has some antisocial
traits, “his level isn’t as serious as some of the other individuals.”
Arambula said that the research indicates that if the number of
victims/convictions is more than one, then the risk of recidivism rises substantially.
Arambula testified that there were three convictions in this case and that he looked
at other incidents, including the allegations of his stepdaughter, but he did not give
them as much weight as the convictions. He explained that two of the convictions
Valsin “picked up” after or during sex offender treatment, and literature indicates
the risk of recidivism is higher for such individuals.
Arambula testified that he would diagnose Valsin’s condition as “sexual
deviance”, specifically “unspecified paraphilia.” He diagnosed Valsin with an
unspecified personality disorder with antisocial traits. Arambula attached most of
the weight to “the seriousness of his sexual deviance.” He agreed with the risk factors
Dr. Proctor identified. Arambula testified that Valsin did not complete sex offender
treatment; in prison, he completed an education module but “[i]t was not treatment
per se[,]” where Arambula indicated Valsin did “pretty well.” Valsin reported
10 deviant sexual fantasies during the education program, but he talked through them
instead of acting on them; Arambula testified that was “not a bad thing” because
Valsin realized he could change his behavior. However, he expressed concerns about
what might happen if Valsin were not in a controlled setting like prison where there
are no underage females.
With respect to risk factors, Arambula testified that certain things stood out to
him, including (1) the number of victims, (2) the number of acts, (3) the fact that
some of the offenses occurred while on supervision and while in treatment, (4) that
they happened over a long period of time, and (5) Valsin engaged in continued
minimization, denial, and victim-blaming. He tried to portray himself as a victim
with the girls being assertive. Arambula explained that there are no children in
prison, so the more Valsin blames, minimizes, and denies, the more he can infer
Valsin is still actively symptomatic with the sexual deviance. Arambula testified that
other risk factors included Valsin’s attitude toward women and his high sex drive.
4. Testimony of Dr. Randy Smith
At trial, Valsin presented video deposition testimony of psychologist, Dr.
Randy Smith, who had never testified before in a case involving a “behavioral
abnormality.” Smith received a Ph.D. in counseling psychology and has been a
licensed sex offender treatment provider since 2013. Valsin is only the second
11 individual Smith has evaluated for a behavioral abnormality. In the prior case, Smith
found the individual did not have a “behavioral abnormality.”
Smith felt there was a distinction between the “average sex offenders[]” and
“dangerous sex offenders[,]” and his job was to discuss the reasonable doubts of
whether Valsin is “one of those dangerous sex offenders.” Smith testified that he did
not feel that his job was to determine whether an individual had a “behavioral
abnormality[] per se” but to provide an opinion about whether an individual would
fall into the “[s]mall, but dangerous[]” category. Smith indicated he would look at
whether someone is violent and whether they have a likelihood of re-offending.
Smith indicated that he considers the degree of psychopathy and static scores
as “really important” in determining whether someone has a behavioral abnormality.
Smith also looks at incidents of physical violence, which can be unassociated with
any sexual offense. Smith testified that “violence, in general, is problematic.” Smith
denied there was any evidence Valsin had a history of serious violence. He explained
that while Valsin engaged in “risky behavior[,]” he did not go out of his way to injure
someone.
In assessing a behavioral abnormality, Smith did not believe he should look
at whether an individual has a paraphilia. He testified that it was his job to provide
an opinion to help inform the jury about whether he believed the person was more
likely to engage in this behavior. He did not believe that a person could have a
12 behavioral abnormality but not be likely to engage in another sexually violent
offense; however, he testified that it would be possible for a person to be likely to
engage in a sexual offense but not have a behavioral abnormality.
Smith opined that Valsin does not have a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. He attributed this to
Valsin’s scores on the actuarial instruments being within the average range, “his
institutional adjustment seemed satisfactory[,]” and that Valsin had certain attributes
that make his transition to the community more likely to be successful. Smith
testified that his methodology for providing an assessment in this case included an
extensive review of records, an evaluation, scoring certain instruments, reviewing
prior instrument scores, and meeting with Valsin for about two hours. He explained
that the details of each offense were important in arriving at his opinion, because he
used those to perform his assessment. Smith testified that he reviewed and relied on
the documents in forming his opinion, including the facts contained in the various
presentencing and police reports.
Smith said that the number and age of the victims was important. He testified
that Valsin offending against a three-year-old while in his thirties raises his risk level
and suggests a problem with impulsivity. Smith explained that this offense would
assist in determining Valsin’s difficulty controlling his behavior. He testified that
the higher the number of convictions, the greater the risk. Smith testified that the
13 probation violation was “a big one[,]” and the failed period of community
supervision is taken into account when scoring Valsin on the Static-99R and the
PCL-R.
He noted Valsin “had incredibly poor judgment, engaged in a lot of risky
behaviors, and had the best of intentions generally.” Smith testified that Valsin never
meant for anything bad to happen, he compartmentalized certain things, and he never
understood the consequences of his actions. He described Valsin as “superficially
contrite about his conduct[]” and “approachable.”
Smith reviewed Valsin’s various convictions and how they affected his
opinion of Valsin’s risk of repeat behavior. Smith testified that Valsin had multiple
sexual encounters with Gina, and when asked whether that increased his risk, he
replied, “[y]es and no.” With respect to grooming Gina, Smith testified that it was
“emotionally violent[]” but made it less likely that Valsin would engage in physical
violence; he also felt that one who engaged in grooming was less likely to suffer
from a behavioral abnormality.
With respect to the offenses against Anna and Nancy, Smith testified that the
fact they occurred after Valsin had already been punished for another offense
increases his risk. Smith testified Valsin told him that “I shouldn’t have touched
[Nancy].” Smith also explained that with Anna there was no physical violence, but
she reported feeling scared and Smith conceded that “emotional intimidation” was
14 “pretty violent itself.” He testified these offenses occurred while Valsin was married.
Sexual promiscuity is a factor to consider regarding Valsin’s impulsiveness but does
not necessarily indicate an increased risk of reoffending.
Smith did not include the allegations of Valsin’s stepdaughter in the victim
count because the allegations did not result in a conviction. He denied seeing
anything in the records indicating that Valsin may have intimidated his wife or
stepdaughter. He conceded that if Valsin engaged in such behavior, that fact would
affect his willingness to include the offense in his assessment.
He saw evidence of Valsin minimizing and denying, which he characterized
as average compared to other sex offenders. He did not make any DSM diagnosis in
this case. Smith testified that one diagnosis Valsin would receive that most
incarcerated people receive is antisocial personality disorder. Smith testified that he
saw no evidence that Valsin would receive a paraphilia diagnosis, but he could “live
with” a “rule-out” diagnosis of pedophilic disorder. Smith did not believe Valsin
preferred young children, but his hypersexuality makes him a greater risk for
engaging in inappropriate sexual conduct, and Valsin engaging in sex with minors
was a sexually deviant behavior.
Smith testified that Valsin had a domestic violence case that required Valsin
to take anger management courses and, while that concerned Smith, he did not feel
Valsin met the definition of criminal versatility and so he did not weigh it heavily in
15 his assessment. Smith testified that he spoke with Valsin about his criminal history
but noted that Valsin “is not real great at taking personal responsibility.” Smith
testified that in prison, Valsin had very few infractions over a long period and, except
for one, were not major, which he felt indicated good adjustment by Valsin.
Smith said the Static-99R was probably the best and most widely researched
instrument tool that provides an actuarial assessment of risk, but it was not enough
alone to determine if someone has a behavioral abnormality. Smith testified that he
thought the scoring range for the Static-99R was from negative 3 to 12, and he scored
Valsin at a “3.” Smith testified that there was no specific cut-off score on the Static-
99R to indicate a person suffers from a behavioral abnormality, but the “[h]igher,
the better.” Smith testified that someone with a score of “3” could still have a
behavioral abnormality. He did not use the high-risk/high-needs group for Valsin,
instead characterized him as a “standard sex offender[]” or an “average kind of sex
offender.”
Smith also scored Valsin on the PCL-R in this case and felt it was important
to test for psychopathy. He did not equate behavioral abnormality with psychopathy
but said it helped inform his decision. Smith scored Valsin as an 18. He testified that
a score of 18 to 21 would not raise Valsin’s risk, but he acknowledged on cross-
examination that someone with a score of 18 to 21 could have a behavioral
abnormality.
16 Smith did not believe an offender who could derive benefit from sex offender
treatment would likely have a behavioral abnormality. Smith explained that Valsin
needs sex offender treatment because he has not shown that he has learned to
regulate his behavior outside of an institutional setting. Without additional treatment,
it would raise Valsin’s risk.
Smith included Valsin’s stable work history, his job training, and family
support as protective factors. On the other hand, Smith testified that Valsin’s risk
factors included multiple victims, more than one conviction, a long history of
incarceration, hypersexuality, and poor social relationships with females.
5. Testimony of Tonya Martin
Tonya Martin, Valsin’s sister, testified for Valsin. She confirmed that she had
secured employment for Valsin if he were to be released. She supports her brother
and does not believe he was at any risk of re-offending in the future. Martin also
does not believe Valsin committed the offenses for which he has been convicted.
II. Factual Sufficiency of the Evidence
Valsin challenges the factual sufficiency of the evidence to support the jury’s
finding that he is a sexually violent predator.
A. Standard of Review
In examining the factual sufficiency standard of review, the Texas Supreme
Court recently held that
17 a properly conducted factual-sufficiency review in an SVP case requires the court of appeals to determine whether, on the entire record, a reasonable factfinder could find beyond a reasonable doubt that the defendant is an SVP. In so doing, the appellate court may not usurp the jury’s role of determining the credibility of witnesses and the weight to be given their testimony, and the court must presume that the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so. If the remaining evidence contrary to the finding is so significant in light of the entire record that the factfinder could not have determined beyond a reasonable doubt that its finding was true, the evidence is factually insufficient to support the verdict.
In re Commitment of Stoddard, No. 19-0561, 2020 WL 7413723, at *1 (Tex. Dec.
18, 2020). In other words,
in an SVP case where the burden of proof is beyond a reasonable doubt, the evidence is factually insufficient if, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the SVP finding, along with the undisputed facts that do not support the finding, is so significant that the factfinder could not have found beyond a reasonable doubt that the statutory elements were met. Id. at *6 (citations omitted).
B. Analysis
The Texas Health and Safety Code defines a “sexually violent predator” as “a
repeat sexually violent offender[]” who “suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence.” Tex. Health
& Safety Code Ann. § 841.003(a). 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. §
18 841.002(2). Sexual assault of a child is classified by statute as a “[s]exually violent
offense.” See id. § 841.002(8)(A). The trial court provided these definitions in the
jury charge.
The evidence established that Valsin has two separate convictions for sexual
assault of a child. For the first offense against Gina, Valsin was placed on deferred
adjudication, but he failed to comply with the terms of the community supervision
and was adjudicated guilty and sentenced to prison. Thereafter, Valsin pleaded guilty
to sexually assaulting Anna. In this appeal, Valsin does not dispute that he is a repeat
sexually violent offender. See id. § 841.003(a). Therefore, we focus our inquiry on
whether the evidence was factually sufficient for a reasonable jury to find beyond a
reasonable doubt that he suffers from a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence. See id.
The State presented two experts, one a forensic psychologist and the other a
forensic psychiatrist. Both experts opined that Valsin suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
This is contrasted with Valsin’s expert and psychologist, Smith, who opined that
Valsin does not suffer from such a behavioral abnormality. Proctor and Smith both
scored Valsin as a “3” on the Static-99R. The PCL-R scores that Proctor and Smith
assigned Valsin deviated by only one point. Each expert opined that someone with
19 scores like Valsin on the actuarial assessments could suffer from a behavioral
Each expert described his methodology in arriving at his opinions, and each
identified Valsin’s risk factors and his protective factors against reoffending. They
explained which aspects of Valsin’s history and offenses they weighed more heavily
in assessing risk, which varied among the experts. Ultimately, the State’s experts
opined that Valsin suffers from a behavioral abnormality that makes him likely to
engage in predatory acts of sexual violence, whereas Smith did not believe Valsin
suffers from such a behavioral abnormality.
At trial, Valsin tended to minimize his conduct; however, the experts’
testimony indicated that the records contradicted much of what Valsin said about the
assaults. The experts, including Valsin’s, also agreed that Valsin was not good at
accepting responsibility for his conduct. The State’s experts heavily weighed
Valsin’s sexual deviance in assessing his future risk as well as antisocial personality
traits, which all three experts agreed Valsin displayed. While none of the experts
firmly diagnosed Valsin with pedophilia, Proctor had given him a “rule-out”
diagnosis of pedophilia and characterized that as a “conservative” diagnosis. Smith
testified he does not provide a DSM diagnosis when conducting his evaluations. All
three experts noted that Valsin engaged in hypersexual and risky behaviors. Proctor
and Arambula testified that while on probation, Valsin failed to complete his sexual
20 offender treatment and re-offended, which were significant risk factors in their
assessment. Smith similarly acknowledged that re-offending while on probation
raised Valsin’s risk, and failure to obtain additional sex offender treatment would
raise Valsin’s risk of reoffending.
Valsin argues in his brief that “[t]he evidence was factually insufficient to
sustain the verdict” and that “[l]ooking at the case in a neutral light there is
insufficient reason to believe that Mr. Valsin will pose such a risk that his continued
confinement is justified[;]” however, the Texas Supreme Court rejected this
approach. See Stoddard, 2020 WL 7413723, at *1 (noting that “weigh[ing] all the
evidence in a neutral light” was the incorrect standard of review). Valsin further
contends that “[h]e hardly has displayed the ‘pattern of violent offenses’
contemplated in the limitation of civil commitment ‘only to a member of a small
group of extremely dangerous sex offenders.’” (Internal quotations omitted.) The
Texas Supreme Court also rejected this argument, noting that this “language,
contained in the Act’s legislative findings, is not part of the statute’s definition of
‘sexually violent predator’ and was not an element the jury was required to find.” Id.
at *8 (citations omitted).
The jury heard conflicting opinions from the State’s experts and Valsin’s
expert about whether Valsin suffers from a behavioral abnormality. As the Court
explained in Stoddard, a reviewing court does not usurp the jury’s role to determine
21 the credibility of the witnesses or the weight to be given their testimony. See
Stoddard, 2020 WL 7413723, at *1. We presume that the jury resolved disputed
evidence in favor of the finding and determined the State’s experts were more
credible, giving more weight to that testimony. See id. After examining the entire
record, we cannot say that “the disputed evidence that a reasonable factfinder could
not have credited in favor of the SVP finding, along with the undisputed facts that
do not support the finding, is so significant that the factfinder could not have found
beyond a reasonable doubt that the statutory elements were met.” See id. at *6.
Accordingly, the evidence was factually sufficient, and we overrule this issue.
III. Admission of Evidence of Prior “No Billed” Sexual Assault
Valsin also challenges the admission of testimony regarding a prior “no
billed” sexual offense against his stepdaughter. Specifically, Valsin contends that
discussion of a “no billed” charge against him “was substantially more unfairly
prejudicial than probative and should not have been permitted.”
We review a trial court’s evidentiary rulings for an abuse of discretion.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); In re
Commitment of Tesson, 413 S.W.3d 514, 519 (Tex. App.—Beaumont 2013, pet.
denied); In re Commitment of Salazar, No. 09-07-00345-CV, 2008 WL 4998273, at
*7 (Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). If a trial court
22 acts without reference to any guiding rules and principles, or if it acts arbitrarily and
unreasonably, it is considered an abuse of discretion. See E.I. du Pont de Nemours
& Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). We will not reverse a
jury’s verdict unless the trial court’s erroneous admission of evidence probably
caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1);
Tesson, 413 S.W.3d at 519.
B. Applicable Law
In SVP civil commitment proceedings, experts may disclose details regarding
the underlying facts or data they relied upon in arriving at their opinion, including
the details of adjudicated and unadjudicated sexual assaults. See Tex. R. Evid.
705(a); In re Commitment of Stuteville, 463 S.W.3d 543, 554-56 (Tex. App.—
Houston [1st Dist.] 2015, pet. denied); see also In re Commitment of Langford, No.
01-18-01050-CV, 2019 WL 6905022, at *3 (Tex. App.—Houston [1st Dist.] Dec.
19, 2019, no pet.) (mem. op.). The rationale for this is that an expert’s explanation
of the underlying facts and how those facts shaped his or her evaluation “assists the
jury in weighing the expert’s opinion that the person has a behavioral abnormality,
which is the ultimate issue that the jury must determine.” Langford, 2019 WL
6905022, at *3 (citing Stuteville, 463 S.W.3d at 555; In re Commitment of Talley,
522 S.W.3d 742, 748–49 (Tex. App.—Houston [1st Dist.] 2017, no pet.)).
23 Texas Rules of Evidence 403 and 705 govern the admission of this type of
evidence. See generally Tex. R. Evid. 403, 705. Rule 705(d) provides:
If the underlying facts or data [that the expert relied on] 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). When a trial court provides the jury a limiting instruction, we
presume the jury followed it. In re Commitment of Day, 342 S.W.3d 193, 198–99
(Tex. App.—Beaumont 2011, pet. denied); see also Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 771 (Tex. 2003) (stating that unless the record
demonstrates otherwise, appellate courts must presume the jury followed the trial
court’s instructions); In re Commitment of Alvarado, No. 09-13-00217-CV, 2014
WL 1285136, at *11 (Tex. App—Beaumont Mar. 27, 2014, pet. denied) (mem. op.).
Likewise, Rule 403 allows for the exclusion of relevant evidence if its
“probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. “Evidence is
unfairly prejudicial when it has an undue tendency to suggest that a decision be made
on an improper basis, commonly, but not necessarily, an emotional one.” In re
Commitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.—Beaumont 2013, pet. 24 denied). Under Rule 403, we conduct a balancing test considering whether: “(1) the
probative value of the evidence; (2) the potential of the evidence to impress the jury
in some irrational way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence.” Langford, 2019 WL 6905022, at *4 (citations
omitted).
C. Analysis
In prior SVP commitment cases, we have considered challenges to the
evidence of uncharged offenses, and each time we have held the trial court acted
within its discretion in admitting evidence of uncharged conduct the expert
considered in forming an opinion regarding whether a person has a behavioral
abnormality. See In re Commitment of Vicario, No. 09-14-00003-CV, 2015 WL
575156, at *4 (Tex. App.—Beaumont Feb. 12, 2015, no pet.) (mem. op.); In re
Commitment of Womack, No. 09-13-00552-CV, 2015 WL 474325, at *3 (Tex.
App.—Beaumont Feb. 5, 2015, no pet.) (mem. op.); In re Commitment of Turner,
No. 09-13-00402-CV, 2014 WL 4460415, at *1 (Tex. App.—Beaumont Sept. 11,
2014, no pet.) (mem. op.); Alvarado, 2014 WL 1285136, at *11; In re Commitment
of King, No. 09-13-00255-CV, 2014 WL 346109, at *2–3 (Tex. App.—Beaumont
Jan. 23, 2014, no pet.) (mem. op.); Tesson, 413 S.W.3d at 519–521; Day, 342 S.W.3d
at 197–99.
25 The State’s experts discussed allegations that Valsin repeatedly sexually
assaulted his ten-year-old stepdaughter. Both experts explained how that factored
into their evaluation of Valsin and their ultimate opinion that he has a behavioral
abnormality that makes it likely he would engage in a predatory act of sexual
violence. Specifically, Proctor explained that he considered the stepdaughter’s
allegations against Valsin because it tended to be in alignment with his overall
pattern of behavior. It also went to Valsin’s “persistence after punishment[,]” which
Proctor indicated was a risk factor. He further described how that, along with
Valsin’s convictions, was factored into his rule-out diagnosis of pedophilia and
sexual deviance, which Proctor considered to be Valsin’s biggest risk factors for
reoffending. Arambula testified that he “considered the allegation” by the
stepdaughter but did not give it as much weight as he did the actual convictions.
Smith testified that he did not consider the stepdaughter in the victim count because
there was not a conviction associated with her allegations.
Based on the foregoing, we cannot conclude that the “probative value in
helping the jury evaluate the opinion is outweighed by [its] prejudicial effect.” See
Tex. R. Evid. 705(d). With respect to a 403-balancing analysis, the evidence was
highly probative of how each expert, particularly Proctor, arrived at his opinion.
While there may have been some risk that allegations that Valsin sexually assaulted
his stepdaughter would impress the jury in some irrational way, in the context of an
26 SVP trial where evidence showed Valsin pleaded guilty to sexually assaulting two
other children and an indecency offense against a three-year-old, we view this risk
as slight. The time taken to develop this evidence was minimal. Finally, the State’s
need for the evidence was great, as it went to explaining what the experts considered
as Valsin’s overall offense pattern and persistence after punishment.
Valsin also requested the following limiting instruction:
Hearsay is a statement that the declarant does not make while testifying at the current trial and a party offers in evidence to prove the truth of the matter asserted in the statement. Generally, hearsay information is not admissible. TRE 801(d). Certain hearsay information contained in records reviewed by the expert may be admitted before you through expert testimony. Such hearsay information is admitted only for the purpose of showing the basis of the expert’s opinion, and to allow you to assess the weight and credibility of the expert’s opinion. However, this hearsay information cannot be considered as evidence to prove the truth of the matter asserted. TRE 705(d)
(Internal quotations omitted.) Pursuant to Rule 705(d), the trial court read Valsin’s
requested limiting instruction on three separate occasions during the proceedings
and included it again in the written jury charge. Valsin never objected to the
instruction. See Alvarado, 2014 WL 1285136, at *11 (noting defendant never
objected to the requested limiting instruction). We presume the jury followed this
limiting instruction in reaching their verdict. Day, 342 S.W.3d at 199.
Having concluded that the trial court did not abuse its discretion by permitting
evidence of a no billed offense because it went to the expert’s conclusion and
27 presuming the jury followed the trial court’s limiting instruction, we overrule this
issue.
IV. Conclusion
We conclude the trial court did not abuse its discretion by allowing the experts
to discuss allegations of a no billed prior sexual assault by Valsin, and factually
sufficient evidence supports the jury’s finding that Valsin is a sexually violent
predator. Having overruled both issues, we affirm the trial court’s judgment and
order of commitment.
AFFIRMED.
_________________________ CHARLES KREGER Justice
Submitted on April 30, 2020 Opinion Delivered February 11, 2021
Before Kreger, Horton, and Johnson, JJ.