In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00588-CV ____________________
IN RE COMMITMENT OF ROBERT M. ADAME _______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-03-03116-CV ________________________________________________________ _____________
MEMORANDUM OPINION
The State filed a petition seeking the involuntary civil commitment of
Robert M. Adame as a sexually violent predator. See Tex. Health & Safety Code
Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). A jury found Adame suffers
from a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence. See id. § 841.003 (West 2010). The trial court signed an order
of commitment, and Adame filed this appeal from the final judgment. The issues
raised on appeal present no reversible error. We affirm the trial court’s judgment.
1 THE STATUTE
The State was required to prove beyond a reasonable doubt that Adame is a
sexually violent predator. See id. § 841.062(a) (West 2010). The statute defines
“sexually violent predator” as a person who “(1) is 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). 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 Supp. 2012).
THE EVIDENCE
Adame received ten years’ probation for the aggravated rape of a woman in
a park in 1980. His probation was revoked. After being released from prison on
parole, he attempted to sexually assault a woman in a hospital in 1985. He pleaded
guilty to the offense and was sentenced to four years in prison. He was released on
parole. In 1992, he pleaded guilty to the 1991 aggravated sexual assault of a child.
He also pleaded guilty to burglary in an unrelated case. The trial court sentenced
Adame to twenty-five years for the burglary charge and twenty years for the
2 aggravated sexual assault of a child charge. Adame was serving the concurrent
sentences when the State filed its petition for commitment.
Dr. Stephen Thorne, a clinical and forensic psychologist, and Dr. David Self,
a forensic psychiatrist, testified as experts for the State. The experts testified that
Adame has a behavioral abnormality that makes him likely to engage in predatory
acts of sexual violence.
JURISDICTION
Adame contends the trial court lacked subject matter jurisdiction because the
Legislature intended “anticipated release date” to apply only to a person who is
about to complete a sentence. He maintains the SVP statute does not apply to him,
because “he was either about to be released under some form of supervision on
January 24, 2012, or in the alternative, still incarcerated to serve out the remainder
of his burglary sentence through 2016 when the State filed its civil commitment
petition against him on March 18, 2011.” Adame asserts the commitment petition
is not ripe for adjudication. The State contends that Adame failed to preserve his
complaint for appellate review. The State also asserts that the SVP statute applies
to those who are released on parole.
The ripeness component of subject matter jurisdiction may be raised for the
first time on appeal. In re Commitment of Villegas, No. 09-12-00085-CV, 2013
3 Tex. App. LEXIS 1596, at *2 n.1 (Tex. App.—Beaumont Feb. 21, 2013, no pet. h.)
(mem. op.) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.
2000)). This Court has previously held, however, that the SVP statute “does not
distinguish between those anticipated to be released on parole and those anticipated
to be released unconditionally as a result of completion of their sentences.” In re
Commitment of Evers, No. 09-11-00430-CV, 2012 Tex. App. LEXIS 10274, at *4
(Tex. App.—Beaumont Dec. 13, 2012, pet. denied). We further held that
“[w]hether the person is convicted of another offense after the State files a petition
seeking civil commitment . . . or whether a person is released on parole or released
unconditionally, there is nothing in [the SVP statute] that indicates the Legislature
intended to divest the trial court of jurisdiction.” Id., at **12-13. We overrule issue
one.
THE EVIDENTIARY RULING
Adame argues that the trial court erred in admitting evidence of the graphic
details of his prior offenses, and that the probative value of the details was
substantially outweighed by the danger of unfair prejudice. He argues these details
were inadmissible hearsay, and unfairly prejudicial under Texas Rules of Evidence
403 and 705(d). He objected at trial to the experts’ testimony concerning the
4 details of the offenses. The trial court overruled the objection but provided the jury
with a limiting instruction. See Tex. R. Evid. 705(d).
We review a trial court’s decision concerning the admissibility of evidence
for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d
35, 43 (Tex. 1998). 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 S.W.2d 549, 558
(Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985). We will reverse a judgment if an error by the trial court probably
caused the rendition of an improper judgment or probably prevented the appellant
from properly presenting the case on appeal. See Tex. R. App. P. 44.1(a).
Rule 705(a) of the Texas Rules of Evidence provides that an expert may
disclose on direct examination, or be required to disclose on cross-examination, the
underlying facts or data on which the expert bases an opinion. Tex. R. Evid.
705(a); Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 602 (Tex.
App.—Fort Worth 1995, writ denied). Rule 705(d) provides:
When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise
5 inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Tex. R. Evid. 705(d); see In re Commitment of Day, 342 S.W.3d 193, 198-99 (Tex.
App.—Beaumont 2011, pet. denied).
Adame asks that we “adopt the reasoning of the lead plurality opinion in
Williams.” See Williams v. Illinois, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). He
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00588-CV ____________________
IN RE COMMITMENT OF ROBERT M. ADAME _______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-03-03116-CV ________________________________________________________ _____________
MEMORANDUM OPINION
The State filed a petition seeking the involuntary civil commitment of
Robert M. Adame as a sexually violent predator. See Tex. Health & Safety Code
Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). A jury found Adame suffers
from a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence. See id. § 841.003 (West 2010). The trial court signed an order
of commitment, and Adame filed this appeal from the final judgment. The issues
raised on appeal present no reversible error. We affirm the trial court’s judgment.
1 THE STATUTE
The State was required to prove beyond a reasonable doubt that Adame is a
sexually violent predator. See id. § 841.062(a) (West 2010). The statute defines
“sexually violent predator” as a person who “(1) is 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). 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 Supp. 2012).
THE EVIDENCE
Adame received ten years’ probation for the aggravated rape of a woman in
a park in 1980. His probation was revoked. After being released from prison on
parole, he attempted to sexually assault a woman in a hospital in 1985. He pleaded
guilty to the offense and was sentenced to four years in prison. He was released on
parole. In 1992, he pleaded guilty to the 1991 aggravated sexual assault of a child.
He also pleaded guilty to burglary in an unrelated case. The trial court sentenced
Adame to twenty-five years for the burglary charge and twenty years for the
2 aggravated sexual assault of a child charge. Adame was serving the concurrent
sentences when the State filed its petition for commitment.
Dr. Stephen Thorne, a clinical and forensic psychologist, and Dr. David Self,
a forensic psychiatrist, testified as experts for the State. The experts testified that
Adame has a behavioral abnormality that makes him likely to engage in predatory
acts of sexual violence.
JURISDICTION
Adame contends the trial court lacked subject matter jurisdiction because the
Legislature intended “anticipated release date” to apply only to a person who is
about to complete a sentence. He maintains the SVP statute does not apply to him,
because “he was either about to be released under some form of supervision on
January 24, 2012, or in the alternative, still incarcerated to serve out the remainder
of his burglary sentence through 2016 when the State filed its civil commitment
petition against him on March 18, 2011.” Adame asserts the commitment petition
is not ripe for adjudication. The State contends that Adame failed to preserve his
complaint for appellate review. The State also asserts that the SVP statute applies
to those who are released on parole.
The ripeness component of subject matter jurisdiction may be raised for the
first time on appeal. In re Commitment of Villegas, No. 09-12-00085-CV, 2013
3 Tex. App. LEXIS 1596, at *2 n.1 (Tex. App.—Beaumont Feb. 21, 2013, no pet. h.)
(mem. op.) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.
2000)). This Court has previously held, however, that the SVP statute “does not
distinguish between those anticipated to be released on parole and those anticipated
to be released unconditionally as a result of completion of their sentences.” In re
Commitment of Evers, No. 09-11-00430-CV, 2012 Tex. App. LEXIS 10274, at *4
(Tex. App.—Beaumont Dec. 13, 2012, pet. denied). We further held that
“[w]hether the person is convicted of another offense after the State files a petition
seeking civil commitment . . . or whether a person is released on parole or released
unconditionally, there is nothing in [the SVP statute] that indicates the Legislature
intended to divest the trial court of jurisdiction.” Id., at **12-13. We overrule issue
one.
THE EVIDENTIARY RULING
Adame argues that the trial court erred in admitting evidence of the graphic
details of his prior offenses, and that the probative value of the details was
substantially outweighed by the danger of unfair prejudice. He argues these details
were inadmissible hearsay, and unfairly prejudicial under Texas Rules of Evidence
403 and 705(d). He objected at trial to the experts’ testimony concerning the
4 details of the offenses. The trial court overruled the objection but provided the jury
with a limiting instruction. See Tex. R. Evid. 705(d).
We review a trial court’s decision concerning the admissibility of evidence
for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d
35, 43 (Tex. 1998). 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 S.W.2d 549, 558
(Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985). We will reverse a judgment if an error by the trial court probably
caused the rendition of an improper judgment or probably prevented the appellant
from properly presenting the case on appeal. See Tex. R. App. P. 44.1(a).
Rule 705(a) of the Texas Rules of Evidence provides that an expert may
disclose on direct examination, or be required to disclose on cross-examination, the
underlying facts or data on which the expert bases an opinion. Tex. R. Evid.
705(a); Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 602 (Tex.
App.—Fort Worth 1995, writ denied). Rule 705(d) provides:
When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise
5 inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Tex. R. Evid. 705(d); see In re Commitment of Day, 342 S.W.3d 193, 198-99 (Tex.
App.—Beaumont 2011, pet. denied).
Adame asks that we “adopt the reasoning of the lead plurality opinion in
Williams.” See Williams v. Illinois, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). He
notes that the Williams opinion sets out “examples of how ‘basis evidence’ that is
not admissible for its truth may be disclosed for legitimate nonhearsay purposes.”
Williams is a criminal case applying the Confrontation Clause. Id., 132 S.Ct. at
2227. Rule 705(d) of the Texas Rules of Evidence applies under the circumstances
here, and the trial court apparently sought to follow that rule in providing the jury
with a limiting instruction.
Thorne and Self explained the facts they considered in forming their
opinions, and how those facts affected each of their evaluations. The trial judge
could reasonably conclude the evidence assisted the jury in weighing the testimony
and considering the opinion each expert offered. The trial judge could also
reasonably conclude the experts’ testimony was not unfairly prejudicial. See In re
Commitment of Ford, No. 09-11-00425-CV, 2012 Tex. App. LEXIS 2221, at **4-5
(Tex. App.—Beaumont Mar. 22, 2012, no pet.) (mem. op.); In re Commitment of
Day, 342 S.W.3d at 199. We presume the jury followed the trial court’s limiting 6 instruction. In re Commitment of Day, 342 S.W.3d at 199. On this record, we
cannot conclude that the trial court erred in overruling the objection, or that the
trial court’s limiting instruction was insufficient.
Adame also asserts that the repeated admission of the facts surrounding his
prior offenses through his testimony and the experts’ testimony was fundamental
error and deprived him of a fair trial. The State maintains the issue was not
preserved for appellate review and that the fundamental error exception does not
apply to SVP cases. According to Adame, he should be able to raise the issue for
the first time on appeal because, “[a]lthough the State’s case against Mr. Adame is
brought under the provisions of a civil statute, the fact remains that Mr. Adame’s
liberty was at stake” and he was entitled to a fair trial.
SVP cases are civil proceedings, not criminal or quasi-criminal. See In re
Commitment of Martinez, 98 S.W.3d 373, 375 (Tex. App.—Beaumont 2003, pet.
denied) (“Chapter 841 is a civil, not a criminal or quasi-criminal, statute.”). A civil
commitment proceeding is subject to the rules of civil procedure unless otherwise
provided by the Act. Tex. Health & Safety Code Ann. § 841.146(b) (West 2010).
To preserve error concerning the admission of evidence, a party must timely
object, stating the specific ground of objection, if the specific ground is not
apparent from the context. Tex R. Evid. 103(a)(1); see also Tex. R. App. P.
7 33.1(a). The trial court granted Adame a running objection as to hearsay. Adame
did not specifically object on the basis that the repeated details of the offenses were
cumulative of other evidence, or unduly repetitive, and he has waived that
objection. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a). Furthermore, this
Court has held that allowing an expert “to explain which facts were considered and
how those facts influenced his evaluation” may assist the jury in assessing the
expert’s opinion. In re Commitment of Day, 342 S.W.3d at 199. Even if we were to
assume that Adame’s trial objection was sufficient to preserve the complaint for
review on appeal, we see no abuse of discretion under the circumstances in the trial
court’s exercise of control over the manner in which the trial was conducted. See
Tex. R. Evid. 611(a). Issues two, three, and four are overruled.
THE SUPPLEMENTAL ISSUE
In Adame’s supplemental brief, he argues the Texas Supreme Court’s
opinion in In re Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012)
has the effect of eliminating requirements for civil commitment under the SVP
statute. Adame further argues the statute is therefore facially unconstitutional. As
this Court recently stated in In re Commitment of Anderson, “We do not read the
Bohannan opinion as eliminating a statutory requirement, or as altering the proof
required under the statute to find that a person is a sexually violent predator.” In re
8 Commitment of Anderson, No. 09-11-00613-CV, 2013 Tex. App. LEXIS 602, at
**19-20 (Tex. App.—Beaumont Jan. 24, 2013, pet. filed). We overrule the issue in
Adame’s supplemental brief.
The trial court’s judgment is affirmed.
AFFIRMED.
________________________________ DAVID GAULTNEY Justice
Submitted on March 14, 2013 Opinion Delivered April 18, 2013
Before Gaultney, Kreger, and Horton, JJ.