In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00593-CV _________________
IN RE COMMITMENT OF SETH HILL
________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 08-01-00790 CV ________________________________________________________________________
MEMORANDUM OPINION
The State of Texas petitioned for Seth Hill‟s commitment after it received a
psychologist‟s report that Hill is a sexually violent predator. See Tex. Health &
Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP Statute).
Following a trial, a jury found that Hill suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. The trial court
rendered a final judgment and an order of civil commitment. On appeal, Hill raises
14 issues challenging the judgment. We find Hill‟s issues are without merit and
affirm the trial court‟s judgment.
1 I. Admissibility of Testimony
The State designated three experts to testify at trial: A.P. Merrillat, a
fingerprint analyst; Dr. Timothy Proctor, a board-certified forensic psychologist
and a licensed sex offender treatment provider; and Dr. Michael R. Arambula, a
board-certified forensic psychiatrist. Hill designated Dr. John Tennison, who is a
licensed psychiatrist. Hill raises issues related to each expert‟s testimony, as well
as issues related to his own testimony. We address the issues as they correspond to
each witness below.
A. Testimony of A.P. Merrillat
In issue one, Hill argues that the trial court erred in refusing to allow him to
cross-examine the State‟s fingerprint expert, A.P. Merrillat, on the prison
conditions Merrillat observed while working for the Special Prosecution Unit
investigating crimes that occur within prisons. The State called Hill as its first
witness and questioned him extensively regarding his sexual activity and numerous
sexual misconducts during his term of imprisonment. In an attempt to rebut this
evidence, Hill‟s counsel attempted to cross-examine Merrillat “about conditions
that [Hill] would have faced inside the prison system, his access to various
temptations, stressors, triggers[.]” The State objected and argued that this
testimony was not relevant, and that Merrillat was only designated as a fingerprint
2 expert. The trial court ruled that Hill‟s counsel could ask foundational questions as
to whether Merrillat had dealings with Hill personally, and if so, Merrillat could
testify as to the things he personally witnessed. The trial court allowed counsel to
pursue the matter with Merrillat in an offer of proof.
In the offer of proof, Merrillat testified generally regarding the availability
of drugs and alcohol in prison, as well as the types of sexual activities that occur in
the prison environment. He testified that it is a violation of prison policy for
inmates to engage in sexual activity. He agreed that the disciplinary process in
prison is dependent on guards making allegations, which are sometimes untrue or
exaggerated. He also testified that inmates make false accusations. At the
conclusion of Hill‟s offer, the trial court sustained the State‟s objection.
We review the trial court‟s determination to exclude Merrillat‟s proffered
testimony for an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537-38
(Tex. Crim. App. 2002). Rule 701 of the Texas Rules of Evidence provide the
guidelines for opinion testimony by lay witnesses. Tex. R. Evid. 701. It requires
opinion testimony to be rationally based on the witness‟s perception and helpful to
a clear understanding of the witness‟s testimony or the determination of a fact in
issue. Id. “Both lay and expert witnesses can offer opinion testimony.” Osbourn,
92 S.W.3d at 535. “A person with specialized knowledge may testify about his or
3 her own observations under Rule 701 and may also testify about the theories, facts
and data used in his or her area of expertise under Rule 702.” Id. at 536. An expert
may provide testimony under Rule 701 “„if the witness‟s testimony and opinion are
based upon firsthand knowledge.‟” Id. at 536 (quoting Texas Rules of Evidence
Manual art. VII-6-7 (6th ed. 2002)).
The trial judge ruled that Merrillat‟s testimony regarding the prison
environment and the propensity of false allegations of crimes and other violations
committed therein, were not based on Merrillat‟s personal knowledge, but rather
were based on hearsay. Because Merrillat‟s observations about the types of
activities that occur in the prison environment are not based on a scientific theory,
his testimony is admissible only as a lay opinion, if it meets the requirements of
Rule 701. If Merrillat perceived the events and then formed an opinion that a
reasonable person could draw from the facts, the first part of Rule 701 is satisfied.
See Tex. R. Evid. 701.
It is not entirely clear from Merrillat‟s testimony or the offer of proof
whether he personally perceived the events forming the basis of his opinions, or
whether he obtained information regarding the events second hand. Regardless,
what is clear is that Merrillat‟s testimony did not relate specifically to the prisons
in which Hill had been incarcerated. Therefore, Merrillat‟s testimony does not
4 meet this requirement of Rule 701. Moreover, the same testimony defense counsel
sought to elicit from Merrillat regarding the prison conditions, defense counsel was
able to ask without objection of Dr. Proctor, therefore any error would be harmless.
See Tex. R. App. P. 44.1(a). Finding no abuse of discretion, we overrule this issue.
B. Testimony of Dr. Thomas Proctor
In two issues, Hill claims the trial court abused its discretion in denying him
the right to fully cross-examine Proctor. In his second issue, Hill claims that he
was denied the right to cross-examine Proctor regarding his understanding of the
law as it informs his opinion that Hill suffers from a behavioral abnormality. In his
fourth issue, Hill argues the trial court denied him the right to cross-examine
Proctor on the rate of error for his methodology in determining whether a person is
likely to sexually recidivate.
Rule 702 of the Texas Rules of Evidence provides that “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form
of an opinion or otherwise.” Tex. R. Evid. 702. An expert may base his or her
opinions or inferences on facts or data that are of a type reasonably relied upon by
experts in the particular field. Tex. R. Evid. 703. An expert may be required to
5 disclose on cross-examination the underlying facts or data that support his or her
opinions or inferences in a case. Tex. R. Evid. 705(a). The trial court has discretion
to restrict cross-examination to matters shown to be relevant, as well as to avoid
the needless consumption of time. See Tex. R. Evid. 611(a)(1)(2), (b).
1. Cross-Examination Regarding the SVP Statute and Case Law
Hill‟s counsel sought to specifically question Proctor about his
understanding and familiarity with the SVP statute and the case law applying the
statute. Hill‟s purpose in pursuing this line of questioning appears to be to
determine the extent to which Proctor‟s understanding of the SVP statute and case
law formed the basis of his opinions in this case. In his second issue, Hill argues
the trial court abused its discretion when it failed to allow him to question Proctor
on the court of appeals‟ opinions interpreting the statute.
Proctor testified that he is familiar with the definition of behavioral
abnormality as the term is used in Texas law. He further explained:
[A] behavioral abnormality is not a medical term or a psychological or psychiatric term. It doesn‟t come out of our books as mental health professionals or health care professionals. It is something that is defined in the Health and Safety Code, which is part of the law in Texas. And it is defined as a congenital or acquired condition that, by affecting a person‟s emotional or volitional capacity, predisposes a person to [] commit a sexually violent act to the extent that they become a menace to the health and safety of another person.
6 Essentially, a person with a behavioral abnormality places or potentially places
other people‟s health and safety at a significant risk. Proctor testified that a
“[p]redatory act is also defined within the Health and Safety Code as an act
directed toward individuals, including family members, for the primary purpose of
victimization.” See Tex. Health & Safety Code Ann. §841.002(5).
Proctor testified that in formulating his determination that Hill had a
behavioral abnormality, he considered the SVP statute. He testified that he
believed that someone who meets the statutory definition of having a behavioral
abnormality would typically be different from the routine sex offender. Proctor
fully explained his methodology. Proctor explained that to him the word likely
means “probable . . . something . . . beyond a mere possibility or potential for
harm.”
Hill later made an offer of proof with Proctor regarding those questions the
trial court refused to allow him to ask concerning specific appellate court opinions.
However, Proctor‟s answer to each question he was asked during the offer of proof
indicated that he did not know the details related to those court opinions. The offer
of proof does not provide us with “what was expected to be proved by those
answers.” See In re Commitment of Day, 342 S.W.3d 193, 199-200 (Tex. App.—
Beaumont 2011, pet. denied). Hill‟s offer of proof does not persuade us that the
7 information he sought to develop before the jury was significant to Proctor‟s
opinions on the dispositive issue of whether Hill has a behavioral abnormality and
is likely to reoffend. Proctor fully explained the bases for his opinion that Hill has
a behavioral abnormality that makes him likely to commit a predatory act of sexual
violence. The questions Hill was not allowed to ask do not address a fact of
consequence that would have made Proctor‟s prognosis more or less probable. See
generally Tex. R. Evid. 401 (“„Relevant evidence‟ means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.”); Tex. R. Evid. 402 (“Evidence which is not relevant is
inadmissible.”). Therefore, we conclude the trial court did not abuse its discretion
and overrule issue two as it concerns the testimony of Proctor.
2. Cross-Examination Regarding Rate of Error
In issue four, Hill argues that the trial court abused its discretion when it
denied him the right to cross-examine Proctor on the rate of error for his
methodology in determining whether a person is likely to sexually recidivate.
Hill‟s counsel did not make an offer of proof or identify what evidence he would
have offered. Preservation of a complaint is a prerequisite for appellate review.
Tex. R. App. P. 33.1(a). Error may be predicated on a ruling that excludes a party‟s
8 evidence only if the substance of the evidence was made known to the court by
offer. Tex. R. Evid. 103(a)(2); Ludlow v. DeBerry, 959 S.W.2d 265, 269-70 (Tex.
App.—Houston [14th Dist.] 1997, no writ). Without an offer of proof, we are
unable to determine whether the trial court‟s exclusion of this testimony was
erroneous and harmful. See Tex. R. App. P. 44.1(a); see also Bobbora v. Unitrin
Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.). Because Hill
has failed to make an offer of proof regarding Proctor‟s rate of error, his complaint
has been waived.
C. Testimony of Dr. Michael Arambula
Hill raises a number of challenges related to Arambula‟s testimony. In his
seventh issue, Hill challenges the reliability of Arambula‟s testimony. In Hill‟s
second, third, fourth, fifth and sixth issues, he argues that the trial court abused its
discretion when it denied him the right to fully cross-examine Arambula.
1. Motion to Strike Arambula‟s Testimony
In his seventh issue, Hill challenges the trial court‟s denial of his motion to
strike the testimony of Arambula. Hill moved to strike Arambula‟s testimony
because “he testified that it is not possible for a person to have a behavior[al]
abnormality without being likely to engage in a predatory act of sexual violence”
and that “behavior[al] abnormality and likelihood to reoffend are not separate
9 issues in the Health & Safety Code.” Hill‟s counsel argued that these “two things
establish that [Arambula] does not understand the statute and, therefore, his
opinions are unreliable.” The trial court overruled Hill‟s request.
Arambula testified that an evaluation to determine the presence of a
behavioral abnormality is a sexual dangerousness evaluation. He explained that he
looks at a “multitude of records . . . from which [he] determine[s] whether
someone has a mental condition that poses sexual dangerousness to the
community.” He looks at risk factors that are present within the records he reviews
and his interview of the person, and then determines whether the individual is
“significantly sexually dangerous to meet the definition of behavioral
abnormality.” Arambula uses the statutory definition of behavioral abnormality in
conducting his assessments. He diagnosed Hill with paraphilia, not otherwise
specified with features of sadism and exhibitionism; polysubstance abuse in
remission; and personality disorder, not otherwise specified with antisocial
features. He explained that Hill‟s paraphilia NOS diagnosis was significant in his
assessment of Hill because it is a deviant sexual condition, at the core of which is
sexual dangerousness. He explained that Hill‟s polysubstance condition combines
badly with paraphilia NOS because substance abuse impairs a person‟s judgment.
10 Arambula testified that in his opinion, Hill has a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence.
Hill argues that the trial court should have stricken Arambula‟s testimony
because Arambula misunderstands the SVP statute. Hill advocates for an
interpretation of the statute that the Texas Supreme Court expressly rejected in In
re Commitment of Bohannan, No. 10-0605, 2012 WL 3800317 (Tex. Aug. 31,
2012) (not yet released for publication). Hill argues that Arambula‟s testimony is
not reliable because “Arambula improperly conflated the „behavioral abnormality‟
and „propensity‟ inquiries into one[.]” However, in Bohannan, the Supreme Court
concluded that “whether a person „suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence‟ is a single,
unified issue.” Bohannan, 2012 WL 3800317 at *5 (footnote omitted).
During its closing argument, the State argued to the jury that this case was
about whether “Hill suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence[]” and the State defined “behavioral
abnormality” as it is written in the statute. Additionally, the definition of
“behavioral abnormality” and “predatory act” contained in the trial court‟s charge
to the jury tracked the SVP statute. See Tex. Health & Safety Code Ann. §
841.002(2), (5). The jury charge is consistent with the Supreme Court‟s ruling in
11 Bohannan and we presume the jury followed the trial court‟s instructions. See
Bohannan, 2012 WL 3800317, at *4-5; see also Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 771 (Tex. 2003). We conclude the trial court did not err
in denying Hill‟s motion to strike Arambula‟s testimony and overrule issue seven.
2. Cross-Examination Regarding the SVP Statute and Case Law
In his second issue, Hill argues that he was denied the right to cross-examine
Arambula regarding his understanding of the SVP statute as it informs his opinion
that Hill suffers from a behavioral abnormality. Hill‟s counsel specifically sought
to question Arambula regarding his understanding of the opinions that the courts of
appeals have written concerning the SVP statute. The trial court ruled this
testimony was inadmissible.
Arambula testified that he was familiar with the law governing sexually
violent predators. He explained that he understands the rulings made by the courts
of appeals as a doctor, but not as an attorney. He agreed with Hill‟s counsel that it
was important for him to understand the relevant statutes and court rulings so he
would know when he needed the assistance of an attorney for a better
understanding. Arambula testified that he understands “behavioral abnormality” as:
essentially a sexual dangerousness evaluation where it is [his] job to accumulate information and determine if somebody has a mental condition which makes them sexually dangerous, and then to further collect more information about their history and look at risk factors 12 that have emerged from research in the literature. And then overall to determine whether that person is significantly dangerous to commit another sexually violent act.
He explained that behavioral abnormality is not a medical term or diagnosis, but a
legal term. He testified that using his medical expertise, he translates his clinical
findings into the statutory definition of behavioral abnormality. He stated that he
stays up-to-date on the standards for behavioral abnormality evaluations by
looking at some Texas case law. He described the process he generally uses in
evaluating individuals for a behavioral abnormality, and specifically explained
what he considered in determining Hill had a behavioral abnormality.
Hill‟s counsel failed to make an offer of proof with Arambula on this issue.
The State argues that Hill did not preserve this issue for review. Hill responds that
he did not need to make an offer of proof to preserve error because the substance
of the testimony he sought was apparent from the context of his questions.
Error may not be based on a ruling that excludes evidence unless, “the
substance of the evidence was made known to the court by offer, or was apparent
from the context within which questions were asked.” Tex. R. Evid. 103(a)(2);
Tex. R. App. P. 33.1(a)(1). “To preserve error concerning the exclusion of
evidence, the complaining party must actually offer the evidence and secure an
adverse ruling from the court.” Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El
13 Paso 2002, no pet.). An appellate court may be able to “discern from the record
the nature of the evidence and the propriety of the trial court‟s ruling,” but without
an offer of proof, the reviewing court cannot determine whether exclusion of the
evidence was harmful. Id. Hill‟s counsel did not make an offer of proof with
Arambula regarding this issue, nor did he identify the answers he expected to
receive from Arambula. Without an offer of proof, we cannot determine whether
the trial court excluded relevant examination or whether the exclusion of the
evidence was harmful. See id.
3. Cross-Examination Regarding Hill‟s Sex-Offender Treatment
In his third issue, Hill argues that the trial court abused its discretion and
committed reversible error when it excluded testimony from Arambula regarding
Hill‟s sex-offender treatment. The State argues that Hill failed to preserve error for
review of this issue by failing to make an offer of proof showing how Arambula
would have answered the proffered questions.
Hill‟s counsel sought to ask Arambula whether he knew if Hill had spoken
to Dr. Edd about continuing treatment in the event Hill was no longer compelled to
be in mandatory treatment. The trial court sustained the State‟s relevance objection
to these questions. Without an offer of proof, we cannot determine whether the
exclusion of the evidence was harmful. See id.
14 4. Cross-Examination Regarding Rate of Error
In issue four, Hill argues that the trial court abused its discretion when it
denied him the right to cross-examine Arambula on the rate of error for his
methodology in determining whether a person is likely to sexually recidivate. Hill
made an offer of proof.
Hill made an offer of proof during which he questioned Arambula about
statistics published on a website regarding the rate of recidivism of those
individuals civilly committed as a sexually violent predators. Arambula testified
that he would not be surprised if the statistics indicated that no person in the State
of Texas who has been judicially determined to be a sexually violent predator has
engaged in a predatory act of sexual violence after commitment. Arambula
explained that this is possible because of the structured environment that those
committed are required to reside in as part of their continued treatment. At the
conclusion of the offer of proof, the trial court sustained the State‟s objections.
We review the exclusion of expert testimony for an abuse of discretion. Day,
342 S.W.3d at 218 (citing K-mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.
2000)). A trial court abuses its discretion by excluding expert testimony that is
relevant to the issues in the case and is based on a reliable foundation. State v.
Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). The trial court‟s
15 erroneous exclusion of evidence constitutes reversible error when the complaining
party shows that the trial court committed error and the error probably caused the
rendition of an improper judgment. Id.; see also Tex. R. App. P. 44.1(a). “[T]he
exclusion or admission [of evidence] is likely harmless if the evidence was
cumulative, or the rest of the evidence was so one-sided that the error likely made
no difference in the judgment.” Id.
We conclude that the proffered testimony was relevant, but that it goes to the
weight to be given Arambula‟s opinion and not to the admissibility of his
testimony. However, Hill has not shown that such error was harmful. Arambula
testified regarding his training, experience and credentials. He testified that his
methodology in evaluating Hill was in accordance with his training and experience
as a psychiatrist and is the accepted method for conducting a behavioral
abnormality assessment in his field. Arambula testified that the records he
reviewed in this case are typically relied on by experts in his field for conducting
this type of assessment. While Hill proffered the post-commitment statistics in an
attempt to discredit Arambula‟s reliability, Arambula explained that the
circumstances in which committed individuals are placed minimizes their
opportunities for reoffending. Given Arambula‟s extensive testimony regarding his
credentials, coupled with his testimony supporting his methodology, assuming
16 error, we conclude the error likely made no difference in the jury‟s verdict. See id.
We overrule this issue.
5. Cross-Examination of Alleged Incident of Bad Behavior
Hill argues the trial court abused its discretion in refusing to allow him to
cross-examine Arambula “regarding an incident at the office of [Hill]‟s sex-
offender treatment provider.” The State responds that Hill failed to preserve this
issue for review.
During direct examination, the State asked Proctor about an incident
involving Hill. Proctor explained that Hill‟s treatment provider noted an incident
where Hill was supposed to be at his office, but the provider could not locate him.
Hill was missing for about 15 minutes. When Hill eventually arrived, he explained
that he had gone to smoke a cigarette and wait for his fiancée. However, the
provider had previously looked outside for Hill and had not seen him. Defense
counsel chose not to question Proctor about this matter.
During cross-examination, Arambula testified that he did not believe that
Hill had been able to control his behavior for the last two-and-a-half years. He
explained that Hill had not followed the rules. Arambula testified that Hill had
been “missing in action” at his treatment provider‟s office earlier in the year, had
taken off his ankle monitor, and had been caught with contraband. Defense
17 counsel questioned Arambula regarding his knowledge of Hill‟s treatment
provider‟s concern for his patients‟ activities inside his building when they are not
in his office receiving treatment. The State objected based on relevance, and the
trial court sustained the objection. Hill‟s counsel failed to make an offer of proof,
and did not identify the answers he expected to receive from Arambula to the
proffered questions. Without an offer of proof, we cannot determine whether the
exclusion of the evidence was harmful. Perez, 74 S.W.3d at 66-67. We overrule
this issue with regard to testimony from Arambula.
6. Cross-Examination Regarding Arambula‟s Opinions of Tennison‟s
Methodology
Hill argues that the trial court abused its discretion in refusing to allow him
to cross-examine Arambula on the methodology used by Hill‟s psychiatric expert,
Tennison. Hill‟s counsel attempted to question Arambula regarding case law
referenced in Tennison‟s report that Tennison relied on in conducting his analysis.
The State argues that these questions did not address Tennison‟s methodology, that
Hill‟s offer of proof was unrelated to the excluded testimony, and the trial court did
not err by refusing to allow appellant to cross-examine Arambula regarding
appellate law.
18 During Hill‟s offer of proof, Arambula acknowledged that one page of
Tennison‟s report referenced case law from the Ninth Court of Appeals and the
United States Supreme Court. Nothing else asked during the offer of proof related
to Tennison‟s report or his methodology. The offer of proof fails to establish that
Hill was harmed by the trial court‟s refusal to allow Hill to cross-examine
Arambula on Tennison‟s methodology. We overrule this issue.
D. Testimony of Dr. John Tennison
1. Exclusion of Testimony Related to Methodology
In issue eight, Hill argues that the trial court committed reversible error in
not allowing Tennison to fully explain his methodology to the jury, which includes
his analysis of appellate court opinions. Hill‟s counsel made an offer of proof.
While the trial court did not allow Tennison to discuss specific court opinions,
Tennison did testify at length about his methodology.
Tennison testified that “[f]orensic psychiatry is simply a term that applies to
any form of psychiatry that interacts with the legal system in some way.” He
testified that he is qualified to determine whether Hill has a behavioral abnormality
through his general training, his ability to read the sexually violent predator statute,
and his ability to apply a legal definition to an individual whom he is evaluating.
Tennison testified that he has extensively studied the methodology used in
19 conducting these types of evaluations from various journals and manuals. He also
indicated that he has had training in the Static-99 and the PCL-R. He testified he
has also received training in applying legal definitions to psychiatrically relevant
forensic questions. He clarified that he is not an attorney. However, he testified
that it is necessary for him to be able to read and understand the SVP statute
because he is “being asked to give a professional opinion as to whether [Hill]
fulfills a statutory definition[.]” He explained that if an expert could not read a
statute and make sense of what it says, then the expert would be unable to give an
opinion as to whether the statute applies to the individual he is evaluating. He
further testified that it is important for a forensic psychiatrist to be able to follow
and understand changes in statutes and that “[c]ase law constrains the way that [a
forensic psychiatrist] can understand the statute.”
He explained that as part of his methodology he analyzes a statute “piece-
by-piece[.]” He then described in detail the steps he took in evaluating Hill. He
reviewed Hill‟s legal records, his TDCJ records, and other evaluations that had
been done on Hill. He testified that he relied on the information in these records.
He then evaluated Hill in person.
During his Static-99 training in 2009, he received the new sexual recidivism
risk tables, which Tennison testified demonstrate that Hill is not likely to engage in
20 a predatory act of sexual violence. He testified that the Static-99 scoring calculates
probabilities of risks. He explained:
In the case of [Hill], those are all--you have to use your clinical judgment to decide where along a range of risk probabilities someone falls. But whether you look at the least risky or all the way up to the most risky, [Hill‟s] rate of recidivism based on the Static-99--not even considering the law requirements, which are over and beyond that-- just looking at the Static-99 and doing a generic risk assessment--even if there wasn‟t a behavior[al] abnormality would show that his risk of recidivism is well below 50 percent or at a level that could be considered more likely than not.
Tennison testified that based on the legal definitions of behavioral abnormality and
sexually violent predator, his education, training, and research, Hill‟s records, and
his interview with Hill, Tennison does not believe that Hill has a behavioral
abnormality.
Given our review of the entire record, Hill‟s offer of proof does not persuade
us that the information he sought to develop before the jury relating to the specifics
of case law was significant to Tennison‟s opinions on the dispositive issue of
whether Hill has a behavioral abnormality. Tennison was able to explain his
analysis, and he fully explored why he felt that Hill does not have a behavioral
abnormality and is not likely to commit a predatory act of sexual violence. We
further note that an expert witness generally may not testify regarding his opinion
on a pure question of law. Upjohn Co. v. Rylander, 38 S.W.3d 600, 611 (Tex.
21 App.—Austin 2000, pet. denied) (stating that matters of statutory construction are
questions of law for the Court to decide and an expert witness may not testify
regarding an opinion on a pure question of law). We conclude the trial court did
not abuse its discretion and overrule issue eight as it concerns the testimony of
Tennison.
2. Exclusion of Testimony Related to Hill‟s Ability to Control His Behavior
In issue nine, Hill argues that the trial court committed reversible error by
excluding Tennison‟s testimony regarding Hill‟s ability to control his behavior.
Specifically, Hill complains that the trial court erred when it excluded Tennison‟s
testimony which compared Hill‟s relative ability to control his behavior to that of a
typical repeat offender.
On redirect, Hill‟s counsel continued to pursue this line of questioning, but
the trial court again sustained the State‟s objection, indicating that the comparisons
were not relevant. Hill made an offer of proof:
Q. Okay. When you were considering whether [Hill] has a significant difficulty controlling his behavior, did you make a comparison between his ability to control his behavior and the ability of a typical repeat offender‟s ability to control their behavior?
A. Yes. That was a serious part of my consideration.
Q. Did you find a difference?
22 A. Well, yes. I regard Mr. Hill as having the ability to control his behavior based on his innate condition. He does not--not only does he not have a chance of recidivism in the general sexual sense, he also doesn‟t have a high probability or likelihood of recidivism from a behavior[al] abnormality as defined by the statute.
Hill argues that this testimony directly addresses one of the prerequisites for
involuntary civil commitment. The State argues that Tennison never explained in
the offer of proof what distinguishes Hill from a typical repeat offender, other than
that Tennison believed Hill could control his behavior. The State explains that it is
the existence of the behavioral abnormality that makes Hill different.
The record demonstrates that Tennison testified that he believed that Hill did
not have a behavioral abnormality and that Hill could control his behavior. The
record further reflects that Tennison was able to support his opinions through
testimony explaining his basis. We are not persuaded that Hill was harmed by the
trial court‟s ruling excluding the testimony at issue. We find that the proffered
testimony was cumulative and, therefore, its exclusion would be harmless error.
See Tex. R. App. P. 44.1, see Cent. Expressway Sign Assocs., 302 S.W.3d at 870.
E. Exclusion of Testimony of Respondent Seth Hill
In issue ten, Hill argues that the trial court committed reversible error by
excluding Hill‟s testimony explaining why he was required to reside at the Ben
Reid Facility. Hill argues that under Rule 107 of the Texas Rules of Evidence, he 23 “had the right to explain the circumstances surrounding the requirement that he
reside at the Ben Reid Facility as part of his involuntary participation in the State-
mandated sex-offender treatment program.” Rule 107 provides in part:
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence[.]
Tex. R. Evid. 107. Hill made an offer of proof. In relevant part, Hill‟s counsel
stated to the trial court:
[Defense Counsel]: I would expect him to testify that the reason that he has been residing at Ben Reid since March of 2009, is that he was tried in this courtroom for a determination of whether he was a sexually violent predator and that he was taken directly from prison to the Ben Reid Facility after that trial, that the same issues tried in that case were tried in this case, and that we were having this trial again because the Texas Supreme Court reversed the decision of the first trial, that the Texas Supreme Court reversed the decision on the first trial in April of this year.
....
That he was not released from the Ben Reid Facility after the Texas Supreme Court reversed the decision of the first trial in which he was determined to be a sexually violent predator, that he thinks that he should have been released, that he experienced deep dissatisfaction and disappointment that he wasn‟t released, but that he reacted to that appropriately and managed to control his behavior with respect to that disappointment; that that response would have been different when he was younger and abusing drugs and alcohol.
24 Hill essentially argues that when he tried to explain to the jury that he
entered the program involuntarily, the trial court erroneously ruled this testimony
was irrelevant. However, the trial court had previously admitted testimony of this
nature. Hill testified that he was released from prison March 11, 2009. Hill testified
that in 2007-2008 two doctors determined that he was a high-risk sex offender and
as a result, he began State-mandated treatment in March 2009. Hill testified that
he has resided at the Ben Reid Facility since his release from prison. As noted
above, the fact that Hill was labeled a high-risk sex offender and placed in State-
mandated treatment informs the jury that his treatment was involuntary.
The decision to admit or exclude evidence is within the trial court‟s
discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995). The trial court could reasonably view the testimony at issue as cumulative
of other information showing that Hill had not made the choice to live at the
facility and that he was required to remain there. Because the testimony at issue
was not necessary for the jury to understand that Hill was required to live at the
facility, the trial court did not abuse its discretion by excluding it. See id. We
overrule Hill‟s tenth issue.
25 II. Motion for Mistrial
In his eleventh issue, Hill argues the trial court erred in denying his motion
for a mistrial. Hill specifically complains about comments made by the prosecuting
attorney during her cross-examination of Tennison. Tennison testified that his
methodology had been published only on his blog. The State then asked, “Is that
the same blog where you have pictures of, like, dildos and talk about weapons of
mass destruction?” Defense counsel objected on the grounds that the question was
not relevant. The trial court sustained Hill‟s objection and then instructed the jury
to disregard the State‟s question, but denied Hill‟s request for a mistrial.
We review a trial court‟s ruling on a motion for mistrial for an abuse of
discretion. In re J.A., 109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied).
An abuse of discretion occurs if the trial court acts without reference to any
guiding rules and principles. Id. We presume the jury followed the trial court‟s
instruction to disregard the objectionable matter, unless there is evidence to the
contrary. Id.
Hill contends that throughout the trial the State‟s attorney portrayed
Tennison as a “rogue psychiatrist” and that the State‟s proffered question was
intended to taint the jury into believing that Hill‟s “expert witness is a kook[.]”
Hill complains about the State‟s opening argument wherein, the prosecutor argued
26 that Tennison has “flawed methodology and bias.” Next, Hill complains about
Proctor‟s testimony that he has not heard of anyone else using or teaching
Tennison‟s methodology. Proctor also noted that Tennison‟s methodology is
organized differently than what is typical in the field. Hill complains that
Arambula testified that he has not seen a methodology wherein the psychiatrist
does not look for a mental condition; Arambula agreed that Tennison‟s approach is
not typical. In rebuttal, Arambula testified that he was present during Tennison‟s
testimony and that he found most of Tennison‟s testimony troubling. Arambula
went on to explain to the jury why he disagreed with Tennison‟s assessment of
Hill. Hill notes that during the State‟s closing argument, the prosecutor argued that
“Dr. Tennison is the outlier here[,] [n]ot Dr. Proctor, not Dr. Arambula.”
Reviewing the record as a whole, we are not persuaded that the jury failed to
disregard the questions as instructed. We conclude the trial court did not abuse its
discretion in denying Hill‟s motion for mistrial. We overrule Hill‟s eleventh issue.
III. Jury Charge
We review the trial court‟s decision to refuse a particular instruction for an
abuse of discretion. In re Commitment of Miller, 262 S.W.3d 877, 891 (Tex.
App.—Beaumont 2008, pet. denied) (quoting In re V.L.K., 24 S.W.3d 338, 341
(Tex. 2000)). A trial court must “submit such instructions and definitions as shall
27 be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. However, the
trial court is given considerable discretion in determining whether jury instructions
are necessary and proper. Miller, 262 S.W.3d at 891 (quoting V.L.K., 24 S.W.3d at
341). A trial court‟s instruction is proper if it assists the jury, accurately states the
law, and has support in the pleadings and evidence. In re Commitment of
Almaguer, 117 S.W.3d 500, 502 (Tex. App.—Beaumont 2003, pet. denied). For an
appellant to obtain a reversal of a judgment based on jury charge error, the
appellant must show that the claimed error “probably caused the rendition of an
improper judgment” or “probably prevented the appellant from properly presenting
[his] case to the court of appeals. Tex. R. App. P. 44.1(a).
A. Limiting Instruction on Hearsay Evidence
In his twelfth issue, Hill argues that the trial court committed reversible error
by denying his limiting instruction on hearsay evidence. Hill argues that Proctor
and Arambula testified extensively from hearsay data and “[w]ithout a precise
instruction, the jury could not distinguish which evidence it could consider for its
substantive value and which evidence it could not. During trial, defense counsel
objected to Proctor‟s testimony relating what the records showed about Hill‟s
convictions, as inadmissible hearsay. The trial court overruled Hill‟s objection, but
granted Hill a running objection and instructed the jury as follows:
28 . . . Hearsay normally is not admissible; however, certain hearsay information contained in records reviewed by experts is allowed into evidence through the expert's testimony. Such evidence is admitted only for the purpose of showing the basis of the expert's opinion.
Later, during Arambula‟s testimony, defense counsel objected to Arambula‟s
testimony related to hearsay contained in the records. The trial court overruled the
objection and again instructed the jury on the proper use of hearsay information:
THE COURT: Okay. As I have told you once already, when experts testify, hearsay normally is not admissible. However, certain hearsay information contained in records and used by experts is allowed into evidence through the expert‟s testimony. Such evidence is admitted only for the purpose of showing the basis of the expert‟s opinion.
Additionally, the trial court submitted the following limiting instruction to the jury
in the charge:
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. Certain hearsay information contained in records reviewed by the experts was admitted before you through expert testimony. Such hearsay was admitted only for the purpose of showing the basis of the experts‟ opinion and cannot be considered as evidence to prove the truth of the matter asserted.
During the charge conference, Hill requested the court‟s instruction be amended to
read as follows:
Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 29 Testimony by experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Hearsay is not admissible as evidence in trial except as provided by narrow and specific hearsay exceptions. Certain evidence was admitted before you in the form of statements found in various records reviewed by expert witnesses. The evidence contained in the records about the respondents underlying sex offenses or the opinions of other witnesses who did not testify would ordinarily be hearsay evidence and thus would not be admissible in this trial, but because the expert witnesses relied upon the records in forming the bases of their opinions, this particular evidence was admitted for the narrow purpose of explaining the bases of their opinion testimony, but not for any other purpose, including whether the facts alleged in the records are true. You will therefore consider this evidence only for the narrow purpose for which it was admitted and for no other purpose.
Hill argues that he was entitled to this instruction under Rule 705(d) of the Texas
Rules of Evidence.1
1 Rule 705, in pertinent part, states:
(d) Balancing test; limiting instructions. 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 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). 30 The record reflects that the trial court gave a limiting instruction in response
to Hill‟s request during Proctor‟s testimony. Additionally, in the jury charge, the
court instructed that hearsay information contained in records reviewed by the
experts had been admitted only for showing the basis of the experts‟ opinions. Hill
argues this instruction was insufficient, but cites no appropriate legal authority in
support of this contention.
We conclude the trial court did not abuse its discretion in denying Hill‟s
requested instruction. We conclude the alleged error did not cause the jury to reach
an improper judgment. See Tex. R. App. P. 44.1(a). We overrule Hill‟s twelfth
issue.
B. Instruction on the Burden of Proof
In his thirteenth issue, Hill argues that the trial court erred in refusing his
instruction on the burden of proof. Specifically, Hill complains that the trial court
refused to give a written instruction on reasonable doubt. Hill complains that the
jury was not adequately apprised of the allocation of the burden of proof. Hill
alleges that while the State‟s attorney informed the jury-selection panel that the
State bore the burden of proof, “the trial court read a rather Spartan charge to the
jury, entirely silent as to the placement of the burden of proof.” Hill requested an
instruction that stated:
31 In order to find Respondent to be a sexually violent predator, you must find beyond a reasonable doubt that the Respondent is (l) a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes a person likely to engage in a predatory act of sexual violence.
All persons are presumed to not be a sexually violent predator and no person may be found to be a sexually violent predator unless the Petitioner proves each element beyond a reasonable doubt. The fact that the Respondent has been sued and required to answer gives rise to no inference at his trial that he is a sexually violent predator.
The law does not require the Respondent to prove he is not a sexually violent predator or produce any evidence at all. The presumption that he is not a sexually violent predator alone is sufficient to answer Respondent is not a sexually violent predator, unless the jurors are satisfied beyond a reasonable doubt of the [sic] Respondent is a sexually violent predator after careful and practical consideration of all of the evidence in the case.
The Petitioner has the burden of proving the Respondent is a sexually violent predator and it must do so by proving each and every element beyond a reasonable doubt. If the Petitioner fails to do so, you must answer no.
It is not required that Petitioner prove its case beyond all possible doubt; it is required that the petitioner‟s proof excludes all “reasonable doubt” concerning the Respondent's status.
In the event you have a reasonable doubt as to whether the Respondent is a sexually violent predator after considering all the evidence before you, and these instructions, you will find that he is not and so say by your verdict, “NO.”
You are further instructed as a part of the law in this case that the petition filed against the Respondent is not evidence in the case, and that the true and sole use of the petition is to allege that
32 Respondent is a sexually violent predator and to inform the Respondent of the allegations against him.
The trial court denied Hill‟s requested instruction.
The jury instructions provided that a “yes” answer must be based on a belief
beyond a reasonable doubt. Further, the charge submitted by the trial court placed
the burden on the State by stating the question as follows: “Do you find beyond a
reasonable doubt that SETH HILL suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence?” However, Hill
complains that this language was insufficient to adequately apprise the jury as to
the allocation of the burden of proof.
Rule 277 of the Texas Rules of Civil Procedure states that “[t]he placing of
the burden of proof may be accomplished by instructions rather than by inclusion
in the question.” Tex. R. Civ. P. 277. “[T]he Rules of Civil Procedure contemplate
that the jury can be instructed about applying the burden of proof in one of two
ways: an admonitory instruction or by placement of the burden through the
question.” In re Commitment of Beasley, No. 09-08-00371-CV, 2009 WL
3763771, at *7 (Tex. App.—Beaumont Nov. 12, 2009, pet. denied) (mem. op.).
Like in Beasley, the phrasing of the question in this case placed the burden of proof
on the State, since an affirmative answer to the question required the State to
prove, beyond a reasonable doubt, that Hill suffers from a behavioral abnormality 33 that makes him likely to engage in a predatory act of sexual violence. See id. We
conclude that the question the trial court posed to the jury in the charge properly
placed the burden of proof on the State. See id. We overrule issue thirteen.
C. Definition of Behavioral Abnormality
In his fourteenth issue, Hill argues that the trial court erred in refusing to
include his definition of behavioral abnormality in the charge to the jury. Hill
requested an instruction that stated, “„A condition which affects either emotional
capacity or volitional capacity to the extent a person is predisposed to threaten the
health and safety of others with acts of sexual violence is an abnormality which
causes serious difficulty in behavior control.‟” The trial court denied Hill‟s
request. Instead, the trial court submitted a definition of behavioral abnormality
that tracked the language of the statute: “„[behavioral abnormality]‟ means 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.‟” See Tex. Health & Safety Code Ann. § 841.002(2).
When a case is governed by a statute, as it is here, the jury charge should
track the statutory language as closely as possible. Almaguer, 117 S.W.3d at 502.
34 Because the definition of behavioral abnormality substituted by the court tracked
the language of the statute, we overrule Hill‟s fourteenth issue.
Having overruled Hill‟s fourteen issues, we affirm the trial court‟s judgment.
AFFIRMED.
___________________________ CHARLES KREGER Justice
Submitted on August 20, 2012 Opinion Delivered February 28, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.