In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-15-00497-CV ____________________
IN RE COMMITMENT OF RICARDO RANGEL CARRISALEZ _________________________________ ______________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-05-05173-CV ____________________________________________ ____________
MEMORANDUM OPINION
The State of Texas filed a petition to commit Ricardo Rangel Carrisalez as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2015). A jury found that Carrisalez is a sexually violent
predator, and the trial court rendered a final judgment and an order of civil
commitment. In two appellate issues, Carrisalez challenges the admission of
certain evidence regarding one of his child victims. We affirm the trial court’s
judgment and order of civil commitment.
1 BACKGROUND
Before trial, Carrisalez’s counsel lodged a relevancy objection to any
testimony mentioning that one of Carrisalez’s victims suffered from a prolapsed
rectum because the victim did not accuse Carrisalez of an offense involving
penetration. Counsel contended that such evidence would “inflame the jury.” The
trial judge instructed counsel to not discuss such evidence during opening
statements, but noted that because the evidence was in the police records, “it’s
traditional hearsay which I often hear in relationship to the expert.”
Psychiatrist Dr. Sheri Gaines testified that she was asked to testify regarding
whether Carrisalez has a behavioral abnormality, and she explained the statutory
meaning of the term “behavioral abnormality.” Gaines explained that she used the
standard methodology for forensic psychiatry cases in evaluating Carrisalez, and
that the methodology was in accordance with her training and the accepted
standards of forensic psychiatry. Gaines testified that she reviewed “hundreds of
pages of collateral information[,]” such as penitentiary packets, the
multidisciplinary report, police reports, Carrisalez’s deposition, and victim
statements, and she personally interviewed Carrisalez for approximately two hours
to form her opinion.
2 Gaines opined that Carrisalez has a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence. She explained that she based
her opinion upon the fact that Carrisalez has deviant sexual interests and a poor
understanding of his condition, and she believes Carrisalez’s deviant sexual
interest remains unchanged. According to Gaines, Carrisalez’s deviant sexual
interests include “sexual thoughts, desires, behaviors, [and] actions towards
prepubescent girls and prepubescent boys.” Gaines explained that sexual deviance
“is one of the main risk factors for sexual recidivism.”
Gaines testified that she diagnosed Carrisalez with pedophilic disorder, and
she explained that Carrisalez had offended against both a male child and a female
child. Gaines also diagnosed Carrisalez with cocaine use disorder and “alcohol use
disorder in remission in a controlled environment.” According to Gaines,
Carrisalez’s offenses are evidence of his sexual deviance. Gaines testified that,
during a period of over two months, Carrisalez offended against the female child
by touching her chest and anus, as well as by penetrating her vagina and anus with
his penis. Gaines testified that after being released from prison, Carrisalez offended
against a male child by grabbing the child’s “crotch area[.]” When asked whether
she saw any records indicating that the abuse of the male child might have been
more serious, defense counsel asked to approach the bench outside the jury’s
3 hearing, and defense counsel indicated that the State was eliciting questions from
Gaines about the male child’s prolapsed rectum. Defense counsel objected, “This is
something the child never alleged Mr. Carrisalez did. . . . He definitely wasn’t
convicted of it. At this point, this is collaterally attacking the judgment and . . .
there’s absolutely no probative value. It’s not relevant and any probative value
would be substantially outweighed by the danger of unfair prejudice.” The trial
judge indicated that a predicate had not been laid and sustained the objection, and
the judge stated, “I’ll be able to rule on it when I have something that I know
about.”
Gaines testified that when reviewing records regarding an individual, she
takes all available information into consideration because “there is oftentimes lots
of information that wasn’t charged, lots of information that wasn’t indicted,
especially in cases regarding sexual offenses.” Gaines explained that the records
included a statement from the male child victim’s mother that the victim suffered
from a prolapsed rectum. Carrisalez’s counsel obtained a running objection that
such evidence constituted a collateral attack on the judgment and violated Rule
403. Gaines then testified that the male child victim suffered from chlamydia and
post-traumatic stress disorder. Gaines explained that victims are often “reluctant to
outcry and disclose because of unwarranted self-shame, unwarranted self-
4 accusation.” According to Gaines, she would have found that Carrisalez has a
behavioral abnormality even without the physical evidence regarding the male
victim. During cross-examination, Gaines testified that Carrisalez was convicted of
putting his hand over the male victim’s penis on top of his clothing, not penetrating
the male victim. Gaines explained that although discussing a child with a prolapsed
rectum and chlamydia is “[h]orrifying[,]” she testified about it because it is part of
the information she reviewed.
According to Gaines, Carrisalez’s risk factors for recidivism include
multiple sex acts against his victims, the young age of his victims, the fact that he
has both male and female victims, the fact that the victims were unrelated to
Carrisalez, and the fact that Carrisalez re-offended after being caught the first time.
In addition, Gaines testified that Carrisalez’s nonsexual criminal history indicates
that he has some antisocial traits. Gaines also noted that there is no evidence that
Carrisalez has been cured of pedophilic disorder. Furthermore, Gaines testified that
Carrisalez has a poor understanding of what caused him to offend and that
Carrisalez blamed his offenses on alcohol. Gaines testified that the actuarial tests
performed on Carrisalez indicated a risk of reoffending that was almost four times
higher than the typical sex offender.
5 Carrisalez testified that he has two convictions for aggravated sexual assault
of a child and three convictions for indecency with a child by contact. Carrisalez
denied penetrating the female child victim and stated that he did not remember his
offense against the male child victim. Carrisalez also testified that he had been
arrested four times for driving while intoxicated.
CARRISALEZ’S ISSUES
In his first issue, Carrisalez argues that the trial judge erred in overruling his
relevancy objection to evidence regarding the male child victim’s prolapsed
rectum. In his second issue, Carrisalez contends the trial judge erred by overruling
his Rule 403 objection regarding Gaines’s testimony that the male child victim
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-15-00497-CV ____________________
IN RE COMMITMENT OF RICARDO RANGEL CARRISALEZ _________________________________ ______________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-05-05173-CV ____________________________________________ ____________
MEMORANDUM OPINION
The State of Texas filed a petition to commit Ricardo Rangel Carrisalez as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2015). A jury found that Carrisalez is a sexually violent
predator, and the trial court rendered a final judgment and an order of civil
commitment. In two appellate issues, Carrisalez challenges the admission of
certain evidence regarding one of his child victims. We affirm the trial court’s
judgment and order of civil commitment.
1 BACKGROUND
Before trial, Carrisalez’s counsel lodged a relevancy objection to any
testimony mentioning that one of Carrisalez’s victims suffered from a prolapsed
rectum because the victim did not accuse Carrisalez of an offense involving
penetration. Counsel contended that such evidence would “inflame the jury.” The
trial judge instructed counsel to not discuss such evidence during opening
statements, but noted that because the evidence was in the police records, “it’s
traditional hearsay which I often hear in relationship to the expert.”
Psychiatrist Dr. Sheri Gaines testified that she was asked to testify regarding
whether Carrisalez has a behavioral abnormality, and she explained the statutory
meaning of the term “behavioral abnormality.” Gaines explained that she used the
standard methodology for forensic psychiatry cases in evaluating Carrisalez, and
that the methodology was in accordance with her training and the accepted
standards of forensic psychiatry. Gaines testified that she reviewed “hundreds of
pages of collateral information[,]” such as penitentiary packets, the
multidisciplinary report, police reports, Carrisalez’s deposition, and victim
statements, and she personally interviewed Carrisalez for approximately two hours
to form her opinion.
2 Gaines opined that Carrisalez has a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence. She explained that she based
her opinion upon the fact that Carrisalez has deviant sexual interests and a poor
understanding of his condition, and she believes Carrisalez’s deviant sexual
interest remains unchanged. According to Gaines, Carrisalez’s deviant sexual
interests include “sexual thoughts, desires, behaviors, [and] actions towards
prepubescent girls and prepubescent boys.” Gaines explained that sexual deviance
“is one of the main risk factors for sexual recidivism.”
Gaines testified that she diagnosed Carrisalez with pedophilic disorder, and
she explained that Carrisalez had offended against both a male child and a female
child. Gaines also diagnosed Carrisalez with cocaine use disorder and “alcohol use
disorder in remission in a controlled environment.” According to Gaines,
Carrisalez’s offenses are evidence of his sexual deviance. Gaines testified that,
during a period of over two months, Carrisalez offended against the female child
by touching her chest and anus, as well as by penetrating her vagina and anus with
his penis. Gaines testified that after being released from prison, Carrisalez offended
against a male child by grabbing the child’s “crotch area[.]” When asked whether
she saw any records indicating that the abuse of the male child might have been
more serious, defense counsel asked to approach the bench outside the jury’s
3 hearing, and defense counsel indicated that the State was eliciting questions from
Gaines about the male child’s prolapsed rectum. Defense counsel objected, “This is
something the child never alleged Mr. Carrisalez did. . . . He definitely wasn’t
convicted of it. At this point, this is collaterally attacking the judgment and . . .
there’s absolutely no probative value. It’s not relevant and any probative value
would be substantially outweighed by the danger of unfair prejudice.” The trial
judge indicated that a predicate had not been laid and sustained the objection, and
the judge stated, “I’ll be able to rule on it when I have something that I know
about.”
Gaines testified that when reviewing records regarding an individual, she
takes all available information into consideration because “there is oftentimes lots
of information that wasn’t charged, lots of information that wasn’t indicted,
especially in cases regarding sexual offenses.” Gaines explained that the records
included a statement from the male child victim’s mother that the victim suffered
from a prolapsed rectum. Carrisalez’s counsel obtained a running objection that
such evidence constituted a collateral attack on the judgment and violated Rule
403. Gaines then testified that the male child victim suffered from chlamydia and
post-traumatic stress disorder. Gaines explained that victims are often “reluctant to
outcry and disclose because of unwarranted self-shame, unwarranted self-
4 accusation.” According to Gaines, she would have found that Carrisalez has a
behavioral abnormality even without the physical evidence regarding the male
victim. During cross-examination, Gaines testified that Carrisalez was convicted of
putting his hand over the male victim’s penis on top of his clothing, not penetrating
the male victim. Gaines explained that although discussing a child with a prolapsed
rectum and chlamydia is “[h]orrifying[,]” she testified about it because it is part of
the information she reviewed.
According to Gaines, Carrisalez’s risk factors for recidivism include
multiple sex acts against his victims, the young age of his victims, the fact that he
has both male and female victims, the fact that the victims were unrelated to
Carrisalez, and the fact that Carrisalez re-offended after being caught the first time.
In addition, Gaines testified that Carrisalez’s nonsexual criminal history indicates
that he has some antisocial traits. Gaines also noted that there is no evidence that
Carrisalez has been cured of pedophilic disorder. Furthermore, Gaines testified that
Carrisalez has a poor understanding of what caused him to offend and that
Carrisalez blamed his offenses on alcohol. Gaines testified that the actuarial tests
performed on Carrisalez indicated a risk of reoffending that was almost four times
higher than the typical sex offender.
5 Carrisalez testified that he has two convictions for aggravated sexual assault
of a child and three convictions for indecency with a child by contact. Carrisalez
denied penetrating the female child victim and stated that he did not remember his
offense against the male child victim. Carrisalez also testified that he had been
arrested four times for driving while intoxicated.
CARRISALEZ’S ISSUES
In his first issue, Carrisalez argues that the trial judge erred in overruling his
relevancy objection to evidence regarding the male child victim’s prolapsed
rectum. In his second issue, Carrisalez contends the trial judge erred by overruling
his Rule 403 objection regarding Gaines’s testimony that the male child victim
suffered from a prolapsed rectum, chlamydia, and post-traumatic stress disorder
because “the probative value of the evidence was minimal compared to the
prejudicial impact on the jury.” We address these issues together.
“We review a trial court’s evidentiary rulings for abuse of discretion.”
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re
Commitment of Salazar, No. 09-07-345-CV, 2008 WL 4998273, at *2 (Tex.
App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A trial court abuses its
discretion when it acts without reference to any guiding rules and principles, or if it
acts arbitrarily and unreasonably. E.I. du Pont de Nemours & Co. v. Robinson, 923
6 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985). Error may not be predicated upon the admission of
evidence unless the party’s substantial rights are affected. Tex. R. Evid. 103(a). We
will not reverse a judgment based upon an error of law unless that error probably
caused the rendition of an improper judgment or probably prevented the appellant
from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a).
Excluding or admitting evidence is likely harmless if the evidence was cumulative
or the rest of the evidence was so one-sided that the error likely did not affect the
judgment. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.
2009).
Assuming, without deciding, that the trial court abused its discretion by
admitting the testimony of which Carrisalez complains, we cannot say that
admission of the evidence caused the rendition of an improper judgment. The jury
heard Gaines testify regarding Carrisalez’s pedophilic disorder, cocaine use
disorder, and alcohol use disorder, as well as his antisocial traits and his risk of
recidivism. The jury heard evidence that Carrisalez has two convictions for
aggravated sexual assault of a child and three convictions for indecency with a
child by contact. The jury also heard evidence that Carrisalez was convicted of an
offense against the female child victim that involved penetration. The record does
7 not indicate that the entire case turned on the complained-of evidence regarding the
male child victim. See Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 192
(Tex. App.—Corpus Christi 2002, no pet). Because we cannot conclude that any
error in the admission of the complained-of testimony caused the rendition of an
improper judgment, we overrule issues one and two and affirm the trial court’s
final judgment and order of civil commitment.
AFFIRMED.
______________________________ STEVE McKEITHEN Chief Justice
Submitted on July 15, 2016 Opinion Delivered August 11, 2016
Before McKeithen, C.J., Horton and Johnson, JJ.