NUMBER 13-20-00082-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE THE COMMITMENT OF GREGORY DEE GREEN
On appeal from the 54th District Court of McLennan County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Tijerina
A jury found appellant Gregory Dee Green to be a sexually violent predator (SVP).
See TEX. HEALTH & SAFETY CODE ANN. ch. 841 (SVP Act). The trial court signed a final
judgment and an order of civil commitment. See id. § 841.081. By three issues, Green
argues that the evidence is legally and factually insufficient to support the “behavior
abnormality” element of the State’s case (issues one and two), and the trial court
erroneously allowed a testifying expert to testify about a non-testifying expert’s out-of-
court opinion (issue three). We affirm. I. BACKGROUND1
Green was incarcerated in the Texas Department of Criminal Justice (TDCJ)
serving two fifteen-year sentences for sexual assault of a child. On August 20, 2018, while
incarcerated, the State filed its petition to have Green declared an SVP under the SVP
Act, alleging that Green was a repeat sexually violent offender who suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence.
At trial on October 22, 2019, Clinical Psychologist Antoinette R. McGarrahan,
PhD., testified that she specializes in forensic psychology and neuropsychology. She
evaluated Green for a behavioral abnormality, and based on her education, training, and
principles of forensic psychology, it is her expert opinion that Green suffers from a
behavioral abnormality that makes him likely to engage in another predatory act of sexual
violence. McGarrahan explained that a behavioral abnormality is “a congenital or acquired
condition” that affects the “person’s emotional or volitional capacity” and “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.” She has performed this type of
evaluation for about seventeen years. To conduct this type of evaluation, McGarrahan
reviewed Green’s records, evaluated Green face-to-face, conducted a clinical review,
gathered background information, and utilized different actuarial instruments and
psychopathy assessments. She also reviewed several thousand pages of records
1 This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts); 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another any time that there is “good cause” for the transfer). 2 regarding Green’s previous imprisonments, such as classification records, medical
records, disciplinary records, records from the Board of Parole, indictments, convictions,
judgments, sentences, witness statements, police reports, victim statements, arrest
reports, sex offender registry records, Green’s deposition, victim interviews, and an
evaluation by a multidisciplinary team doctor, among others.
In making her determination that Green has a behavior abnormality, McGarrahan
looked to risk factors and protective factors that indicate how likely a person is to reoffend
in the future. According to McGarrahan, she utilized a diagnostic and statistical manual
to determine that Green “has a very, very large number of risk factors. He has more than
I’ve seen in any other case I’ve had.” For example, she opined that Green has an ongoing
sexual deviancy, he has an antisocial personality disorder, displays repeated problems
following the rules of society, has difficulty with authority figures, and he is a prototypical
psychopath.
McGarrahan stated that as a young adolescent, Green acted in a sexually deviant
manner that continued while he was incarcerated in high structured environments such
as the Texas Youth Commission (TYC) and the TDCJ because he has been repeatedly
charged with—and repeatedly convicted of—sexual offenses. McGarrahan stated that in
scoring the actuarial measures and in assessing the risk factors, it was standard
procedure and methodology to look at the details and the facts underlying Green’s
charges and convictions as well as to consider the allegations of other sexual offenses
that did not necessarily lead to a conviction.
3 McGarrahan considered a previous aggravated sexual assault of an eight-year-old
child committed by Green when he was thirteen years old and living in a foster placement.
According to the reports, the child and Green were unrelated. McGarrahan reviewed a
psychological evaluation from a psychologist. At the time of the offense, Green provided
“pretty detailed information about what occurred during that crime and assault of [the
child].” Green admitted that he found it arousing that the child had confided in him that he
had been sexually assaulted at a prior placement. Green indicated he then made the child
lie face down on the bed, penetrated the child’s anus with his penis until he ejaculated,
and used a pillow to muffle the child’s moans and cries of pain. Green wanted to do it
again, but the foster staff came, intervened, and subsequently moved Green to another
location. Green was given community supervision for this offense, but he did not
successfully complete it: he did not attend school regularly; he failed to attend sex-
offender treatment; he was suspended from school; and he violated curfew, among other
things.
Once Green’s probation was revoked, he was placed in the TYC where he was
convicted of two more sexual offenses. The records indicated that Green was nineteen
years old and one of the victims, Manuel, was sixteen years old. According to the court-
related records, after Manuel caught Green masturbating in a closet, Green punched him
in the stomach, grabbed his neck, bent him over a sink, and forced anal sex on him. On
at least one other occasion, Green digitally penetrated Manuel’s anus with his finger.
Another sixteen-year-old, Kevin, housed at the TYC claimed that Green kept
asking him for anal sex, but Kevin kept refusing. Green threatened to beat up Kevin and
4 threatened to engage the whole dorm in a gang fight if Kevin did not allow Green to anally
penetrate him.
When Green was released, he was subsequently charged with indecency by
exposure against Sara, the fifteen-year-old sister of Green’s girlfriend at the time. This
was significant to McGarrahan’s assessment because Sara was a stranger to Green, and
he had never met her before the incident, which McGarrahan believes raises his risk to
engage in another sexual offense. Sara was babysitting children when Green came into
the room and demanded anal sex. When Sara threatened to call the police, Green
explicitly threatened her with a gun. Family members arrived and stopped the incident.
McGarrahan testified that when she discussed the aggravated sexual assault of
the eight-year-old child with Green, Green denied penetration and stated he climbed into
bed with the child only to “get comfort with him.” When McGarrahan discussed the
offenses against Manuel with Green, he claimed they were consensual. As to the incident
with Kevin, McGarrahan opined that Green’s behavior with Kevin is known as
“persistence after punishment” because Green’s impulsive behavior continues and
persists after he has been punished. According to McGarrahan, Green indicated that Sara
made sexual advances, and he turned her down. McGarrahan testified that this encounter
demonstrates Green’s emotional and volitional capacity—his sexual deviancy relates to
his ability to regulate how he interacts with others and his expression of emotion,
particularly with impulse.
In conducting her evaluation, McGarrahan also considered at least twenty-two
documented disciplinary reports labeled as “sexual misconduct” while Green was
5 incarcerated again at TDCJ. For instance, an inmate reported that Green put a metal
shank to his neck and said, “I want some of that.” The report states that Green proceeded
to pull down the inmate’s pants, penetrated the inmate for about three minutes,
ejaculated, then threatened to kill the inmate if the inmate told anybody. While Green
denied most of the sexual misconduct disciplinaries, he admitted to McGarrahan that he
manipulates the system to get what he wants. According to McGarrahan, Green’s
inclination to cope with a difficult situation in a sexual and violent manner is called
“sexualized coping.” A discipline report shows that as recently as September 2019, Green
was disciplined for threatening to inflict harm on staff, fighting with a weapon against
another inmate, and what McGarrahan described as “some other minor stuff.”
McGarrahan employed the Psychopathy Checklist-Revised, an assessment tool
typically used by psychologists, to gauge Green’s level of psychopathy. The highest score
is a forty; Green scored a 38.8. Based on this score, McGarrahan stated Green “has an
extremely high number of psychopathic personality characteristics” with respect to
psychopathy.
McGarrahan also scored Green on the Static-99, which she testified is an actuarial
instrument to estimate the risk of being convicted for a sexual offense in the future. Green
scored an eleven out of a possible twelve. 2 In fact, Green was the first individual
McGarrahan had ever seen in the double digits: the score put Green “at the ninety-nine,
point, ninety-ninth percentile”; according to McGarrahan, “nobody can score higher . . . .”
2 Green did not meet the criteria for the last factor because McGarrahan stated that he had not “been out in the free world long enough to live with a lover for more than two years.” 6 Green testified. He admitted that he did not complete sex offender treatment. He
stated that he acts out violently when he feels unsafe, and he testified about specific
additional encounters of violence he inflicted against family members, prison employees,
and inmates, including creating weapons and using them against correctional officers.
For these acts, he spent six years in administrative segregation. Green admitted that he
has attempted several treatment programs but has been unable to successfully complete
them because of his behavioral tendencies. He admitted to amassing over twenty-two
disciplinaries for sexual misconduct in the prison system.
After hearing the evidence, including Green’s testimony, the jury unanimously
found that Green is an SVP. Green now appeals.
II. SUFFICIENCY OF THE EVIDENCE
A. Sexually Violent Predator
The SVP Act provides a procedure for the involuntary civil commitment of an SVP.
See id. §§ 841.001–.153. The SVP Act was enacted based on legislative findings that “a
small but extremely dangerous group of [SVPs] exists” and that “those predators have a
behavioral abnormality that is not amenable to traditional mental illness treatment
modalities and that makes the predators likely to engage in repeated predatory acts of
sexual violence.” Id. § 841.001; see Kansas v. Crane, 534 U.S. 407, 413 (2002) (holding
that a similar statute satisfies constitutional due process only when there is “proof of
serious difficulty in controlling behavior”).
Under the SVP Act, a person may be civilly committed if the factfinder determines
by a unanimous verdict and beyond a reasonable doubt that the person is an SVP. See
7 TEX. HEALTH & SAFETY CODE ANN. §§ 841.062, 841.081. An SVP is defined as a person
that (1) is a “repeat sexually violent offender,” and (2) “suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.” Id.
§ 841.003(a). A person is a “repeat sexually violent offender” if the person is convicted of
more than one “sexually violent offense” and a sentence is imposed on at least one of
those convictions. Id. § 841.003(b). 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).
B. Standard of Review
A commitment proceeding under the SVP Act is the unusual civil case
incorporating the “beyond a reasonable doubt” burden of proof typically reserved for
criminal cases. In re Commitment of Fisher, 164 S.W.3d 637, 639–41 (Tex. 2005). The
standard for conducting evidentiary-sufficiency reviews on appeal with respect to these
cases involves an intermediate “clear and convincing” burden. In re Commitment of
Stoddard, 619 S.W.3d 665, 674 (Tex. 2020). “A legal-sufficiency review of a finding that
must be proven by clear and convincing evidence requires that the court review the
evidence in the light most favorable to the finding to determine whether a reasonable
factfinder could form a firm belief or conviction that the finding was true.” Id. The court
must: (1) “assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so,” (2) “disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been incredible,” and (3) “may not disregard
8 undisputed facts that do not support the finding.” Id. (citing In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002)).
“By contrast, a factual-sufficiency review is premised on consideration of the entire
record.” Id. We must determine whether, considering the entire record, that evidence “is
so significant that a factfinder could not reasonably have formed a firm belief or conviction”
that the finding was true. Id. The Texas Supreme Court has stated:
We hold that 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.
Id. at 668.
C. Discussion
Green does not challenge the first prong of the SVP Act that he is a repeat sexually
violent offender. By his first issue, Green challenges the legal sufficiency of the evidence
supporting the jury’s finding that he has a behavioral abnormality. Specifically, Green
argues that his past sexual history cannot reasonably support an inference or an
adequate basis to support an expert opinion that he meets the legislatively intended
definition of “behavioral abnormality.” By his second issue, Green challenges the factual
sufficiency of the evidence supporting the jury’s finding that he is an SVP “based on
uncharged and unproven offenses that amount to little more than rumor, innuendo[,] and
9 speculation . . . .”
1. Legal Sufficiency
Green contends that he does not meet Chapter 841’s definition of “behavior
abnormality” because it applies to only “one small group of extremely dangerous sexually
violent predators,” and Green “is nothing more than just a potentially ‘dangerous but
typical recidivist.’” He asserts that because the number of sexually violent offenses he
“has committed over his lifetime can be counted on the fingers of one hand,” he does not
meet the definition of “behavioral abnormality” that Chapter 841 was meant to address.
However, in a civil commitment case, the State does not need to prove that Green
is a member of a “small but extremely dangerous group of sexually violent predators” or
that Green is not just a “dangerous but typical recidivist.” See Stoddard, 619 S.W.3d at
677 (“This ‘small but extremely dangerous group’ 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.”). Instead, the State only needs to prove
beyond a reasonable doubt that Green is an SVP. See TEX. HEALTH & SAFETY CODE ANN.
§ 841.062(a). Thus, the State need not compare Green “to other adjudicated SVPs with
predicate offenses and criminal histories that were sustained and [more] egregious” than
Green’s acts because “that is simply not what the Act requires.” Stoddard, 619 S.W.3d at
678.
Here, McGarrahan specifically defined “behavior abnormality,” and she explained
how the statutory definition applied to Green. She testified regarding all the resources she
consulted in forming her opinions including criminal records, court records, witness
10 statements, Green’s testimony, her use of actuarial tests, the many factors she assessed
in making her determination, and her interview with Green. She then discussed the
various risk factors she considered and how those factors affected her overall conclusion
regarding Green’s likelihood to commit another predatory act of sexual violence. In fact,
she stated that Green has more risk factors than any other person she has evaluated
throughout her career, and she reiterated that all his disorders were chronic and
warranted a significant amount of treatment. She opined that Green suffers from a
behavior abnormality that predisposes him to committing sexually violent offenses.
There was no testimony to refute her opinion. Although Green testified at trial, he
did not offer an opinion as to whether he possessed a behavior abnormality. Assessing
the evidence in the light most favorable to the verdict, we conclude there was more than
a scintilla of evidence to support the jury’s finding beyond a reasonable doubt that Green
is an SVP. See In re Commitment of Short, 521 S.W.3d 908, 911 (Tex. App.—Fort Worth
2017, no pet.). We overrule Green’s first issue.
2. Factual Sufficiency
Green challenges the factual sufficiency of the evidence in one sentence: “[I]t
would be clearly unjust to permit the judgment to stand when it is critically based on
uncharged and unproven offenses that amount to little more than rumor, innuendo[,] and
speculation under the reasoning of [a] New York Court of Appeals’ decision . . . .”
However, the decisions of the New York Court of Appeals are not binding on Texas courts;
we do not adhere to the laws or reasoning of the courts of New York. See Penrod Drilling
Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (providing that Texas courts “are
11 obligated to follow only higher Texas courts and the United States Supreme Court”).
Nonetheless, the jury heard McGarrahan explain the bases for her conclusion that
Green was likely to reoffend, including, but not limited to, his history of committing violent
and sexual crimes against numerous victims, many of whom were strangers to Green.
She detailed the risk factors evidenced by those offenses as well as the actions and
statements of Green that supported her diagnosis:
I gave him an unspecified paraphilia, antisocial personality disorder with significant psychopathic personality traits, and then he has a history of a whole host of childhood problems such as conduct disorder, oppositional defiance disorder, ADHD, post-traumatic stress disorder, and learning disabilities.
McGarrahan explained that paraphilia is a chronic condition that warrants a significant
amount of treatment. She further explained that individuals with antisocial personality
disorder are often in trouble with the law despite the consequences because they’re
impulsive, they’re irresponsible, they repeatedly engage in behavior that gets them
arrested, and they violate the rights of others. According to McGarrahan, this is a chronic
and persistent disorder.
McGarrahan also testified regarding how each of the risk factors increased Green’s
likelihood of committing violent sexual offenses in the future and how those factors
supported her opinion that Green has a behavioral abnormality that makes him likely to
commit predatory acts of sexual violence. For example, Green has repeatedly used
violence to force other individuals to engage in sexual activity. Green admitted that he
complained to the medical staff at TDCJ that he has a compulsion to repeatedly
masturbate. McGarrahan assessed Green’s prior convictions for sex offenses, as well
12 allegations that did not result in a criminal conviction. She additionally assessed the
multiple infractions he received while incarcerated in TYC and TDCJ. Aside from Green’s
sexually violent behaviors, McGarrahan also explained that Green’s nonsexual violent
behaviors make it more likely he will commit a predatory act of sexual violence.
Furthermore, although Green repeatedly gave significantly different accounts of
what transpired, McGarrahan opined that Green was a pathological liar, another
characteristic of being a psychopath. See In re Commitment of Stoddard, 619 S.W.3d at
668 (providing that in a factual sufficiency review, we may not substitute our judgment for
that of the jury, which is the sole judge of the credibility and the weight to be given to
witnesses’ testimony). It was the jury’s province to weigh this evidence, judge the
credibility of the witnesses’ testimony, and to resolve any conflicts in the evidence. See
In re Commitment of Williams, 539 S.W.3d 429, 446 (Tex. App.—Houston [1st Dist.] 2017,
no pet.). The jury was also free to believe all, part, or none of a witness’s testimony. In re
Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet. denied).
Having reviewed the entire record, including undisputed evidence contrary to the
verdict, we determine that the factfinder could find beyond a reasonable doubt that Green
is an SVP. See In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont
2011, pet. denied) (“[T]he possibility that the evidence in a particular case will be legally
sufficient but factually insufficient essentially decreases as the burden of proof
increases.”). We therefore conclude that the State presented factually sufficient evidence
that Green was likely to reoffend and commit a predatory act of sexual violence. See TEX.
HEALTH & SAFETY CODE ANN. § 841.003(a). We overrule Green’s second issue.
13 III. HEARSAY
By his third issue, Green argues the trial court reversibly erred by overruling his
hearsay objection to McGarrahan’s testimony of a non-testifying expert’s finding that
Green has a behavioral abnormality.
A. Standard of Review & Applicable Law
We review the trial court’s ruling on evidentiary matters for an abuse of discretion.
See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014); In re Commitment
of Mares, 521 S.W.3d 64, 69 (Tex. App.—San Antonio 2017, pet. denied). An abuse of
discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made
without regard for guiding legal principles. Ford Motor Co. v. Garcia, 363 S.W.3d 573,
578 (Tex. 2012).
Hearsay is an out of court statement used to prove the truth of the matter asserted.
TEX. R. EVID. 801. Hearsay is generally not permitted in trial, except as otherwise allowed
under the Texas Rules of Evidence or by statute. Id. R. 802. The rules of evidence provide
that “[a]n expert may base an opinion on facts or data in the case that the expert has been
made aware of, reviewed, or personally observed.” Id. R. 703. “If experts in the particular
field would reasonably rely on those kinds of facts or data in forming an opinion on the
subject, they need not be admissible for the opinion to be admitted.” Id. That said, “[a]n
expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient
basis for the opinion.” Id. R. 705(c). And “[i]f the underlying facts or data 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
14 effect.” Id. R. 705(d). “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.” Id.
B. Discussion
1. Out-of-Court Expert Opinion
During McGarrahan’s testimony, the following exchange occurred:
[State]: Okay. Did you review and rely on a report for—from that multidisciplinary team doctor in Mr. Green’s case?
[McGarrahan]: Yes, I did.
[State]: And who was the doctor on that case?
[McGarrahan]: Dr. Turner.
[State]: And is it standard practice in these types of cases to review and rely upon that multidisciplinary psychologist’s report?
[McGarrahan]: Yes.
[State]: And I guess if you were called [sic]—when was Dr. Turner’s evaluation of Mr. Green for a behavioral abnormality?
[McGarrahan]: I believe in May.
[Green]: Objection, Your Honor, hearsay.
THE COURT: Sustained.
....
THE COURT: Ladies and Gentlemen, before we proceed any further, I have an instruction I need to give you regarding evidentiary matters. This witness who is an expert witness has testified and is going to be testifying regarding what we call “hearsay.” I know you’ve all
15 heard that term before. Hearsay is a statement made by someone at some time other than while they’re testifying in the present hearing. That is when a party offers into evidence to prove the truth of the matter in the statement, and this may not make any sense to you, but it’s legally the way we have to do this.
Generally, hearsay is not admissible as evidence during a trial. However, in this case . . . certain hearsay information contained in records that you’ve heard a little bit about was reviewed and relied upon by experts and will be presented to you through this expert's testimony.
Such hearsay evidence is being presented to—to you only for the purpose of showing the basis of this expert’s opinion and cannot be considered as evidence to prove the truth of the matter asserted. You may not consider this hearsay information for any other purpose, including whether the facts alleged in the records that we’re talking about are true. You may proceed.
[State]: Thank you, Your Honor.
[State]: So, Dr. McGarrahan, when was Dr. Turner’s behavioral abnormality evaluation of Mr. Green?
[McGarrahan]: In May, of 2018.
[State]: And what was Dr. Turner’s opinion as to whether or not Mr. Green suffers from a behavioral abnormality?
[McGarrahan]: Dr. Turner made the opinion that Mr. Green does suffer from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
Green argues that McGarrahan’s testimony should not have been admitted under
Texas Rule of Evidence 705(d) because McGarrahan “did not rely (or even testify that
she relied) on Turner’s out-of-court opinion ‘in forming an opinion on the subject’ that Mr.
Green has a behavior abnormality.” However, as set forth in the exchange above,
16 McGarrahan explicitly acknowledged that she reviewed and relied on Turner’s report and
findings. She further explained that it was standard practice to review those types of
reports in these cases. See id. R. 703. Thus, the trial court could have reasonably
determined that McGarrahan based her opinion and testimony, at least in part, on
Turner’s report. See id.; In re Commitment of Burd, 612 S.W.3d 450, 461–63 (Tex. App.—
Houston [1st Dist.] 2020, no pet.); In re Commitment of Winkle, 434 S.W.3d 300, 315
(Tex. App.—Beaumont 2014, pet. denied); see also In re Commitment of Resto, No. 13-
19-00300-CV, 2021 WL 376887, *1 (Tex. App.—Corpus Christi–Edinburg Feb. 4, 2021,
no pet.) (mem. op.) (concluding that the trial court did not abuse its discretion in allowing
the expert to testify that she relied on an out-of-court’s expert’s report in forming her
conclusion).
2. Prejudicial Effect
Next, Green argues that the probative value of McGarrahan’s statement was
outweighed by its prejudicial effect. We disagree.
“Regarding any prejudicial effect that may have resulted from the basis testimony,
this effect was mitigated by the trial court’s limiting instruction, which explained the
evidence’s scope and purpose.” In re Commitment of Johnson, 613 S.W.3d 613, 618
(Tex. App.—San Antonio 2020, pet. denied). Here, the trial court specifically instructed
the jury at the time of the testimony and outlined it again in the jury charge that the mention
of Dr. Turner’s report was meant “only for the purpose of showing the basis of
[McGarrahan’s] opinion and cannot be considered as evidence to prove the truth of the
matter asserted.” In the absence of evidence to the contrary, we presume the jury followed
17 the court’s limiting instruction.3 See id.
Under these circumstances, we cannot agree that the evidence was so unfairly
prejudicial as to substantially outweigh its probative value. We conclude the trial court
acted within its discretion in determining that McGarrahan’s testimony regarding the non-
testifying psychologist’s opinion was admissible under the rules of evidence. See TEX. R.
EVID. 703, 705. Green’s third issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA Justice
Delivered and filed on the 23rd day of November, 2021.
3 We note that Green supplied the trial court with the limiting instruction, and he did not object to the limiting instruction provided in the jury charge. 18