Opinion
No. 02-19-00295-CV
04-01-2021
IN RE: THE COMMITMENT OF DAVID JOHN GUEST
On Appeal from the 371st District Court Tarrant County, Texas
Trial Court No. D371-S-14045-18 Before Sudderth, C.J.; Kerr and Birdwell, JJ.
MEMORANDUM OPINION
In five issues, David John Guest appeals from a final order of civil commitment as a sexually violent predator (SVP).
In his first issue, Guest challenges the factual sufficiency of the evidence to support his commitment. Because we hold that the evidence is factually sufficient to support the jury's finding that Guest is a sexually violent predator, we overrule his first issue.
Guest argues in his second issue that the trial court abused its discretion by allowing the State's expert to testify about some of the underlying facts upon which he based his opinion that involved unadjudicated offenses. We overrule Guest's second issue because it is proper to allow the admission of the facts and data upon which an expert relied, including a person's unadjudicated offenses.
In his third issue, Guest claims that the trial court abused its discretion by refusing to allow him to question the State's expert about the expert's personal rate of error in determining whether a person is likely to engage in a predatory act of sexual violence. Because such questions are not helpful and have a tendency to confuse the jury, we overrule Guest's third issue.
In Guest's fourth issue, he argues that the trial court abused its discretion by admitting evidence of his prior no-contest plea. We overrule this issue because Guest failed to preserve it for review by failing to assert the same basis for his argument in the trial court as he does on appeal.
Finally, Guest argues that the trial court abused its discretion when it refused to allow him to collaterally attack the veracity of one of his prior convictions. We overrule Guest's fifth issue because a respondent in an SVP commitment case cannot collaterally attack his criminal judgments during the commitment trial.
I. BACKGROUND
In October 2018, the State filed a petition to civilly commit Guest as an SVP. In its petition, the State alleged that Guest had been convicted of three sexually violent offenses, two of which were for aggravated sexual assault of a child under 14 years of age. According to the State, Guest committed the first offense in November 1987, the second in October 1990, and the third in October 2008.
Guest's criminal sentence discharge date was set for November 11, 2020.
Two witnesses testified at the jury trial: the State's expert, Dr. Timothy Proctor, and Guest himself. Proctor opined that Guest suffers from a behavioral abnormality that causes him to be an SVP. Proctor based his opinion on Guest's risk factors for reoffending, his criminal history, Proctor's interview with Guest, and the three psychological tests that he administered to Guest.
Guest testified that he was not sexually attracted to any of his victims and that he was not a pedophile. Additionally, Guest vehemently denied sexually assaulting a young boy in 2008 despite pleading guilty to that charge in 2009.
The jury found beyond a reasonable doubt that Guest is an SVP. The trial court ordered Guest committed until he is no longer likely to engage in predatory acts. This appeal followed.
II. FACTUAL SUFFICIENCY OF THE EVIDENCE
Guest argues that the evidence is insufficient to support the jury's verdict that he is an SVP. Specifically, Guest argues that there is less evidence that he is an SVP than there was in In re Commitment of Stoddard, a case that this court reversed on sufficiency grounds, and that therefore, we should reverse and remand this case. In re Commitment of Stoddard, 601 S.W.3d 879 (Tex. App.—Fort Worth 2019), rev'd, No. 19-051, 2020 WL 7413723 (Tex. Dec. 18, 2020).
The State urges us to abandon factual-sufficiency reviews in SVP cases, following in the steps of the criminal case Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). However, the Texas Supreme Court recently addressed this argument in In re Commitment of Stoddard, No. 19-0561, 2020 WL 7413723, at *7 (Tex. Dec. 18, 2020). In Stoddard, the State argued that, because a factual-sufficiency review in the civil context similarly requires deference to a jury's credibility and weight determinations, it is similarly indistinguishable from a legal-sufficiency review. Id. The Supreme Court disagreed and held, "It is true that in both types of review the appellate court may not ignore 'undisputed facts that do not support the finding' and must otherwise presume the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so." Id. However, the Supreme Court further stated:
In a legal-sufficiency review, the court disregards such evidence in determining whether a rational factfinder could find the statutory SVP elements beyond a reasonable doubt. In a factual-sufficiency review, the court considers whether that evidence, in light of the entire record, is so significant that the factfinder could not have determined beyond a reasonable doubt that the statutory elements were met. To be sure, this distinction "may be a fine one in some cases." But it is a distinction we have continued to recognize in our civil jurisprudence, and we see no reason to treat SVP cases differently. Accordingly, we hold that the "right of courts of appeals to review for factual insufficiency" under the standard expressed herein "must continue undisturbed."Id. (internal citations omitted).
A. Standard of review
When reviewing the factual sufficiency of the evidence to support a civil commitment order, we determine whether, on the entire record, a reasonable factfinder could find beyond a reasonable doubt that the defendant is an SVP. Stoddard, 2020 WL 7413723, at *1. In so doing, we may not usurp the jury's role of determining the credibility of witnesses and the weight to be given to their testimony, and we must presume that the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so. Id. 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.
B. Applicable law
In an SVP civil commitment case, the State must prove, beyond a reasonable doubt, that the person is an SVP. Tex. Health & Safety Code § 841.062(a). A person is an SVP if he is a repeat sexually violent offender and suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003(a). And a person is a repeat sexually violent offender if he is convicted of more than one sexually violent offense and a sentence is imposed in at least one of the offenses. 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).
C. Witness testimony
Proctor testified that he is a board-certified licensed psychologist who practices primarily in the area of forensic psychology. Proctor described his qualifications to handle civil commitment cases, including his educational background, his professional license in forensic psychology, and his specialized training in forensic psychology. Proctor further testified that he is licensed to treat sex offenders. According to Proctor, he has performed approximately 100 civil commitment evaluations since 2005. Proctor explained that many different agencies have retained him to conduct civil commitment evaluations over the years, including the State Counsel for Offenders and the Special Prosecution Unit, as well as numerous private defense attorneys.
According to Proctor, there is no test in and of itself that can determine whether a person suffers from a behavioral abnormality. Accordingly, when Proctor conducts civil commitment evaluations, he employs an actuarial approach. Essentially, this means that in forming his opinion, Proctor reviews an individual's pertinent records, conducts an interview with the individual, and relies on testing instruments to indicate whether a person will reoffend. Proctor testified that the methodology he uses is in accordance with his training as a forensic psychologist and with the accepted standards in the field of forensic psychology. Proctor also pointed out that this methodology is used by other experts who perform behavioral abnormality evaluations.
As it relates to his evaluation of Guest, Proctor reviewed Guest's pertinent records, including his police records, jail and prison records, prior psychological evaluations, and the records related to his unadjudicated offenses. Proctor also reviewed Guest's deposition testimony in this case. Proctor explained that reviewing such a wide range of records is important because it allows him to compare the information contained in the records to the information that he receives from the person he interviews. Additionally, Proctor stated that reviewing records is valuable because people's memories fade over time and reviewing records created close in time to when an incident occurred gives him a "better idea of what went on, what was involved, [and] what happened with the situation, with the court system."
Proctor identified two risk factors that he stated best predict an individual's likelihood of reoffending. The first is a person's history of sexual deviancy—in this case Guest's history of engaging in sexual acts with nonconsenting persons. The second is a person's history of antisocial behavior—here, Guest's history of committing acts in violation of the law or of committing acts that are impulsive or careless. In Proctor's view, Guest's deviant sexual interests and antisocial behaviors were evident in his history of criminal sexual offenses, in the results of the psychological tests that Proctor administered, and in his interview of Guest.
During his testimony, Proctor described Guest's three convictions for sex offenses. The first offense for which Guest was charged occurred in November 1987 when Guest was 29 years old. On that occasion, Guest was babysitting the four-year old son of his roommate's girlfriend. At some point, Guest gave the boy a bath. Afterwards, Guest laid the boy on a bed, began sucking his penis, and continued to do so until the boy cried. When the boy's mother returned to pick him up, the boy told her what Guest had done to him. For this offense, Guest was placed on deferred adjudication probation, which he completed, although during most of the probation period he was in jail for another offense. After Guest was released from jail, he received sex offender treatment.
In October 1990, when Guest was 32 years old, he committed another sexual offense. Once again, this occurred while Guest was babysitting—this time two-and three-year-old brothers. At some point, Guest took the three-year-old boy into the bathroom and performed oral sex on him. Guest then called the boy into a closet and had the boy perform oral sex on him. The boy reported that while Guest's penis was in his mouth, "slobber" came out of it. The three-year-old victim reported that he also saw Guest giving oral sex to his two-year-old brother. This was confirmed by the two-year-old boy, who said that Guest "bit his thing." Guest was subsequently convicted of aggravated sexual assault for his assault on the three-year-old boy and received a ten-year prison sentence.
In 2008, Guest sexually assaulted another little boy, again when he was babysitting children—the six-year-old son and three-year-old daughter of his roommate's girlfriend. On this occasion, Guest inserted his finger into the boy's anus, exposed his penis to both children, and wrestled with them while naked. Guest was subsequently convicted of inserting his finger in the boy's anus and was serving time for that conviction at the time of his civil commitment hearing.
During his interview with Proctor, Guest made numerous statements that Proctor believed demonstrated that he is a sexual deviant. For example, Guest told Proctor, "Obviously, I have an attraction to children." Further, Guest told Proctor that he had masturbated to thoughts of children in the last year and often had fantasies about boys. Guest also explained to Proctor that he only acted out sexually toward his young victims because they made sexual advances toward him first. Guest told Proctor that his victims "offered" themselves to him and that at some level they "want[ed] it."
Specifically, as to his second victim, Guest claimed that he only became sexually aroused after he saw the four-year-old boy playing with his own penis. Guest stated the boy followed him into a closet and literally "came on to [him]" by saying "[l]et's do it," grabbing Guest's penis, and giving him oral sex. Regarding his third victim, the six-year-old boy, Guest claimed that the child came onto him by exposing his genitalia to Guest and playing around with Guest "sexually."
Proctor explained that Guest's statements and history of sexual offenses against young children show "significant sexual deviance" because being attracted to a three-or four-year-old child falls in the category of "sexually deviant." Moreover, Proctor pointed out that Guest's history of acting upon his sexual attraction to very young children—even after he was caught and punished for prior sexual assaults of children—is evidence of his history of antisocial behavior.
Similarly, Proctor testified that the tests he administered to Guest as a part of his analysis demonstrated that Guest has a history of deviant sexual interests and antisocial behavior that indicated a high risk of reoffending. Two of the tests that Proctor utilized are the Static-99R and the Psychopathy Checklist Revised (PCL-R).
Proctor explained that the Static-99R test is used to assess whether a sex offender is likely to reoffend. After giving Guest a minus three for his age, Proctor scored Guest a two on the test, which indicates that Guest had an average risk of reoffending. However, when Proctor considered all the evidence in this case, and not just the ten factors considered by the Static-99R test, he believed that Guest's actual risk of reoffending was higher.
Proctor's opinion is supported by a psychologist who administered the Static-99R test to Guest a few months before Proctor did. That doctor also believed that the Static-99R test underestimated Guest's risk to reoffend.
Proctor pointed out that the authors of the Static-99R test advise against using this test alone to determine whether an individual suffers from a behavioral abnormality which makes him likely to reoffend. Accordingly, Proctor testified that he uses the Static-99R test only as a starting point in formulating his opinion as to whether a person is an SVP or has a behavioral abnormality.
The second test that Proctor administered as a part of his assessment—the PCL-R test—examines whether a person is a psychopath. Proctor described certain personality traits that are exhibited by a psychopath, including irresponsibility, impulsivity, and a failure to show remorse. Further, according to Proctor, individuals that score higher on the PCL-R test typically have a history of committing sexual offenses. Proctor explained that the PCL-R test scores range from 0 to 40 and that a score of 30 indicates that a person is a psychopath. Guest scored a 20 on the test. Although Guest's test score did not indicate that he was a psychopath, Proctor testified that it did show that Guest rated highly in terms of promiscuous sexual behavior, irresponsibility, juvenile delinquency, revocation of conditional release, and criminal versatility. These are all antisocial behaviors.
Proctor identified additional risk factors that indicated to him that Guest was likely to reoffend. Proctor pointed to Guest's "chronicity" and "diversity" of sexual violence as risk factors that suggested he will reoffend. As to chronicity of sexual violence, Proctor pointed out that Guest offended in his 20's, 30's, and 50's against multiple children. As to diversity of his sexual criminal acts, Guest's sexual offenses not only escalated from oral sex to anal penetration but also later included a female victim.
Additional risk factors identified by Proctor included Guest's problems with employment, intimate relationships, and planning. Proctor testified that these are all indicators of an unstable lifestyle, which tends to increase criminal behaviors.
As for "protective factors" that might reduce Guest's risk of reoffending, Proctor found few. He listed two protective factors: Guest's enrollment in sex offender treatment and his advanced age. However, Proctor went on to explain that, in reality, he did not believe that these theoretically protective factors reduced Guest's risk of reoffending. For example, even though being older is normally a protective factor, Guest committed sex offenses against children in his 50's, the age at which a decline in the commitment of sexual offenses would normally occur. Further, according to Proctor, while undergoing sex offender treatment is normally considered a protective factor, the weight of protection was lessened in Guest's case due to his poor participation and progress. Proctor related that most of the sex offender treatment provider notes indicated that Guest's sex offender treatment was not going well. Moreover, Guest had had problems with turning in his assignments and participating in group discussions. Additionally, Guest saw himself as a victim, he manipulated others, and he entertained other group members at inappropriate times. In fact, other group members had commented about Guest's lack of participation.
Proctor acknowledged that a couple of the more recent notes indicated that Guest might have been doing better in his treatment.
Finally, Proctor diagnosed Guest with pedophilic disorder. As Proctor explained, pedophilia is the sexual attraction to children, and pedophilic disorder is a specific disorder that involves "prepubescent children so usually ages 13 and younger, children that don't have what are called secondary sex characteristics, so they haven't developed breasts or pubic hair." Proctor based his diagnosis on Guest's history of sexually assaulting children ranging from two to six years old in the "'80s, '90s, and 2000s" and Guest's admissions that he was sexually attracted to young, prepubescent children and had recently masturbated to thoughts of children.
After Proctor testified, the State called Guest as an adverse witness. During his testimony, Guest contradicted himself several times. In one instance, Guest admitted that he had numerous convictions for sexually assaulting children but denied being a sex offender or having sexual urges for children. Guest also denied being a pedophile but admitted to having sexual fantasies about children just a few months before his commitment hearing.
Further, Guest testified that he was not sexually attracted to any of his victims and told the jurors, "I wasn't planning none of this. It was just - - in every single case, all of a sudden, I had a child thrust upon me." Yet Guest admitted that he sexually assaulted his first victim in order to arouse and gratify his own sexual desires and that he was attracted to the little boy and enjoyed the sexual act with him. With regard to his second victim, a three-year-old boy, Guest testified that he was so sexually aroused by the boy that he had to go into a closet to masturbate in order to "lower [his] libido."
Guest also testified about the sex offender treatment that he had received in the past as well as the treatment that he was receiving during the commitment trial. Guest described his prior sex offender treatment as "just a bull session" and a "farce," yet he claimed that he had learned a lot from it, just nothing pertaining to preventing the commission of future sexual offenses. At the time of trial, Guest was six or seven months into a nine-month sex offender treatment program. When confronted with treatment notes indicating that he was more interested in entertaining the group than in receiving treatment, Guest explained that it is his purpose in life to make people happy, or to "crown a frown," as he put it. When asked who was providing him sex offender treatment, Guest responded, "In all honesty, no one. Me. I'm my own physician healing myself, you know."
D. Analysis
To contest the factual sufficiency of the evidence, Guest relies on this court's opinion in Stoddard. 601 S.W.3d at 892. Guest argues that since this court held the evidence factually insufficient to support the jury's verdict in that case, it cannot hold that the evidence was sufficient to support the jury's finding that he is an SVP in this case. Comparing facts in other reported SVP cases is not helpful in the context of a factual sufficiency review. As our sister court stated:
The Supreme Court reversed Stoddard and as an intermediate appellate court, we are bound to follow the expression of law as stated by the Texas Supreme Court. Stoddard, 2020 WL 7413723, at *1 (holding that this court applied an improper standard of review that allowed this court to substitute its own judgment for that of a reasonable factfinder and incorporated a statutory element that Health and Safety Code chapter 841's text does not support).
Comparing isolated facts appearing in other reported SVP commitment cases, such as the seriousness of the underlying offenses or scores on risk assessment guidelines and psychopathy checklists, should not be part of [factual sufficiency] review[s]. First, isolating and comparing individual pieces of evidence unduly emphasizes that evidence while discounting the remaining evidence present in both cases, which is contrary to the factual sufficiency review standard. Further, the evidence presented in other cases was not before the jury in this case, and the factual sufficiency standard of review does not include considering evidence not before the jury.In re Commitment of Metcalf, 602 S.W.3d 609, 623 (Tex. App.—Texarkana 2020, pet. denied) (internal citations omitted).
In this case, the jury heard evidence of Guest's three sexual offenses and the details of the victims against whom he offended. Moreover, Proctor detailed the risk factors evidenced by those offenses, as well as by the actions and statements of Guest, that supported his diagnosis of pedophilic disorder. Proctor also testified regarding how each of the risk factors increased Guest's likelihood of committing violent sexual offenses in the future and how those factors supported his opinion that Guest has a behavioral abnormality that makes him likely to commit predatory acts of sexual violence. The jury also heard testimony regarding the protective factors that might reduce Guest's risk of reoffending.
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. See Stoddard, 2020 WL 7413723, at *1. 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. 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).
We presume that the factfinder resolved disputed evidence in favor of their finding that Guest is an SVP. See Stoddard, 2020 WL 7413723, at *1. And we do not find the remaining evidence, contrary to the behavioral abnormality finding, so significant in light of the entire record such that the jury could not have determined beyond a reasonable doubt that its finding was true. Id. Accordingly, we hold that the evidence was factually sufficient to prove that Guest had the requisite behavioral abnormality under the SVP Act, and we overrule his first issue presented for review.
III. EVIDENTIARY ISSUES
In his second, third, fourth, and fifth issues, Guest challenges certain evidentiary matters. We hold that these challenges are without merit.
A trial court's rulings in admitting or excluding evidence are reviewable under an abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
A. Evidence of Unadjudicated offenses - Guest's second issue
In his second issue, Guest argues that Proctor should not have been allowed to offer testimony regarding Guest's unadjudicated offenses. To be clear, Guest does not take issue with Proctor's testimony listing some of his unadjudicated offenses or his testimony that he relied upon them in deriving his opinion that Guest is an SVP. Instead, Guest argues that the trial court erred by allowing Proctor to testify to the details of Guest's uncharged offenses, details that Guest contends were unnecessary to the jury's understanding of Proctor's opinion testimony and were unduly prejudicial.
1. Background facts
Before allowing the State to elicit the challenged testimony, the trial court held a Rule 104 hearing to determine its admissibility. Tex. R. Evid. 104. During that hearing, the trial court permitted Guest to examine Proctor about the underlying facts or data upon which he based his opinion. Tex. R. Evid. 705(b) ("Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may--or in a criminal case must--be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury's hearing."). During the hearing, Proctor testified that in forming his opinion, he relied upon the records describing Guest's unadjudicated offenses but that he placed much less weight on them than he did on Guest's convictions. Proctor explained that he must consider a person's unadjudicated offenses for the purpose of scoring the two psychological tests that he employs in behavioral evaluations—the Static-99R and the PCL-R tests. Finally, Proctor testified that in order to explain the basis of his opinion, he must disclose the details that he relied upon in a person's pertinent records, including the details underlying a person's unadjudicated offenses.
According to Proctor, he only places weight on a person's unadjudicated offenses if they are part of a larger pattern of similarly convicted offenses.
At the conclusion of the hearing, the trial court overruled Guest's objection and admitted Proctor's proposed testimony regarding the details of his unadjudicated offenses. The trial court determined that without knowing the information underlying Proctor's opinion, including the details contained in the records of Guest's unadjudicated offenses, the jury would not understand or be able to properly evaluate Proctor's opinion. The trial court did, however, grant Guest's request for a limiting instruction, as required by Texas Rule of Evidence 705. See Tex. R. Evid. 705(d).
The trial court gave the jury the following limiting instruction prior to Proctor's testimony about Guest's unadjudicated offenses:
The expert has testified and will testify regarding hearsay. Hearsay is a statement made by a person at some time other than while testifying at the current trial or hearing which a party offers into evidence to prove the truth of the matter asserted from the statement.
Generally hearsay is not admissible as evidence during trial. However, in this case, certain hearsay information contained in records was reviewed and relied upon by experts and will be presented to you through that expert's testimony.
Such hearsay evidence is being presented to you only for the purpose of showing the basis of the 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 are true.
The Court will give you this limited instruction, and bearing that instruction in mind, you may continue to listen to the testimony.
2. Applicable law
Under Texas Rule of Evidence 705, "an expert in a SVP Act civil commitment proceeding may disclose the underlying facts or data upon which the expert bases his or her opinion if it is of a type of information relied on by experts in the field when forming opinions on the subject." In re Commitment of Cain, No. 02-18-00043-CV, 2018 WL 5993335, at *2 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.).
3. The trial court did not abuse its discretion by allowing Proctor to testify about the details of Guest's uncharged offenses.
Although Guest argues that the details underlying his unadjudicated offenses were unnecessary for Proctor to formulate his opinion, Proctor's testimony about the underlying facts helped the jury weigh his opinion and decide whether they agreed that Guest had a behavioral abnormality that would predispose him to commit sexual offenses. This was the ultimate issue that the jury was tasked with deciding, and the information that Proctor provided regarding Guest's unadjudicated offenses was relevant to its decision. See In re Commitment of Young, 410 S.W.3d 542, 557 (Tex. App.—Beaumont 2013, no pet.) (holding in an SVP case that having an expert explain the facts he considered and how those facts influenced his evaluation, assists the jury in weighing the expert's opinion on the ultimate issue); In re Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet denied) ("We hold the trial court acted within its discretion in allowing the experts to discuss the details of the offenses and other bad acts committed by Day that are contained in the records they reviewed."); In re Commitment of Miller, 262 S.W.3d 877, 894 (Tex. App.—Beaumont 2008, pet. denied) (holding evidence about the accused's past sexual offenses, both adjudicated and unadjudicated, assisted in demonstrating whether the accused has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence—the ultimate issue that the jury must determine in an SVP Act case).
Guest cites to the record to support his claim that "Proctor conceded that he could effectively relate and explain his opinion in this case without a full-throated recitation of the . . . allegations of Guest's two unadjudicated sex offenses." However, the page that Guest refers this court to does not contain any testimony from Proctor.
That page, as well as the one before and after, contain Guest's argument against the admission of Proctor's testimony following the trial court's Rule 104 hearing.
Guest also claims that the admission of the details surrounding his uncharged sexual offenses was unduly prejudicial to his case. Guest argues that Proctor could have effectively related and explained his opinion in this case without revealing the "sordid, yet unproven, allegations of Guest's two unadjudicated sex offenses." Unadjudicated offenses, however, are not necessarily more prejudicial than probative when they serve the purpose of explaining the basis of an expert's opinion. See In re Commitment of Stuteville, 463 S.W.3d 543, 555-56 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (holding trial court did not abuse its discretion by admitting evidence of uncharged sexual offenses defendant allegedly perpetrated against other victims for limited purpose of explaining basis of expert's opinion that defendant suffered from behavioral abnormality). Moreover, our sister courts have repeatedly upheld a trial court's decision to allow an expert to testify about the details of unadjudicated offenses in SVP cases. See, e.g., In re Commitment of Johnson, 613 S.W.3d 613, 615 (Tex. App.—San Antonio, 2020 pet. denied) (holding trial court did not abuse it discretion by admitting evidence of appellant's unadjudicated sexual offenses because admission was not unfairly prejudicial); In re Commitment of Renshaw, 598 S.W.3d 303, 306 (Tex. App.—Texarkana 2020, no pet.) (holding experts in civil commitments may disclose underlying facts that the expert relied on, including the details of adjudicated and unadjudicated sexual assaults).
We cannot say that the trial court abused its discretion by determining that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Based on this record, the trial court could have reasonably concluded that the facts and details related to Guest's unadjudicated offenses would be helpful to the jury in weighing Proctor's testimony and in explaining the basis for his opinion that Guest suffers from a behavioral abnormality. Given the purpose for admitting this evidence and the trial court's limiting instruction, we hold that the trial court did not abuse its discretion by admitting evidence of unadjudicated offenses. We overrule Guest's second issue.
Guest did not object to the trial court's limiting instruction, nor does he argue on appeal that the instruction was in any way deficient. Moreover, we presume that the jury followed the court's instructions. See Day, 342 S.W.3d at 199.
B. Evidence of Proctor's rate of error - Guest's third issue
Guest contends that the trial court impermissibly restricted his right to cross-examine Proctor about his rate of error. Specifically, Guest complains about the trial court's sustaining of the State's objections to the following questions on the bases that the questions were misleading and confusing:
• Dr. Proctor, you don't know what your rate of error is with regards to these cases, do you?
• And so when you evaluate people for a behavioral abnormality and you determine they did not have a behavioral abnormality, you have no idea how many of those people went on to commit—if they committed another offense, a sexually violent offense, or not, do you?
During Guest's offer of proof, Proctor responded to these two inquiries by testifying that he does not know if any of the people he has evaluated for a behavior abnormality have reoffended.
A witness may be cross-examined on any matter relevant to any issue in the case. See Tex. R. Evid. 611(b). However, the trial court may exercise reasonable control over the interrogation of witnesses to make the interrogation effective for the ascertainment of the truth, see Tex. R. Evid. 611(a), and relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403.
The State conceded that testimony regarding rate of error is relevant but argued that as it relates to an expert's opinion in a SVP commitment case, such testimony can confuse and mislead the jury. The trial court agreed with the State. We do note, however, that a party may not concede a question of law necessary to the proper disposition of an appeal. Hoskins v. Fuchs, 517 S.W.3d 834, 841 (Tex. App.—Fort Worth 2016, pet. denied).
Although experts—especially experts providing scientific opinion evidence—are properly questioned about the potential rates of error underlying their theories or techniques, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995) (holding that a technique's potential rate of error is one factor that a trial court may consider in making the threshold determination of admissibility under Rule 702), obtaining the answer to such a question is not always necessary and, viewed in proper context, the answer may be irrelevant. Questions regarding an expert's rate of error presume that the expert is making a prediction about the respondent's future behavior when the expert may actually only be assessing a present risk based on the respondent's history, actuarial tests, and interview. In re Commitment of Butler, No. 09-13-00358-CV, 2014 WL 4364526, at *5 (Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.); In re Commitment of Alexander, No. 09-11-00650-CV, 2013 WL 5425557, at *1 (Tex. App.—Beaumont Sept. 26, 2013, pet. denied) (mem. op.). Additionally, "questions that fail to account for the effects of sex offender treatment based on the physician's patient population or the population he relied on when assessing the patient cannot assist the jury in determining whether the expert has in the past correctly applied the techniques developed to determine which persons need sex offender treatment to prevent re-offending." Alexander, 2013 WL 5425557, at *5. Moreover, we agree with our sister court that these types of questions in civil commitment trials have the potential to cause confusion for the jury. Butler, 2014 WL 4364526, at *6; Alexander, 2013 WL 5425557, at *1. Accordingly, we hold that the trial court did not abuse its discretion by preventing cross-examination of Proctor regarding his rate of error. We overrule Appellant's third issue.
C. Evidence of Guest's nolo contendere plea - Guest's fourth issue
In his fourth issue, Guest claims that the trial court abused its discretion by admitting evidence of his no-contest plea because the admission violated Rule of Evidence 410. Tex. R. Evid. 410.
At trial, Guest lodged numerous objections to the admission of his no-contest plea, but he never argued that Rule 410 prohibited the admission of his no-contest plea. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. In re D.E.H., 301 S.W.3d 825, 827-28 (Tex. App.—Fort Worth 2009, pet. denied). The complaint on appeal must be the same as that presented in the trial court. See id.; Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) ("To have preserved error, a party's argument on appeal must comport with its argument in the trial court."). An appellate court cannot reverse based on a complaint not raised in the trial court. In the Interest of J.T., No. 02-14-00378-CV, 2015 WL 2345511, at *1 (Tex. App.—Fort Worth May 14, 2015, no pet.) (per curiam) (mem. op.) (holding that an appellate court cannot reverse based on a complaint not raised in the trial court).
At trial, Guest lodged a hearsay objection to this evidence but did not object that the evidence was inadmissible under Rule 410. Because Guest's argument on appeal that Rule 410 prohibited the admission of his no-contest plea does not comport with the ground he asserted at trial, Guest has failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a)(1). We overrule Guest's fourth issue.
D. Guest's testimony explaining why he pleaded guilty - Guest's fifth issue
In his last issue, Guest argues that the trial court abused its discretion by denying him the opportunity to present evidence regarding his reasons for pleading guilty to his third conviction.
1. Background facts
During trial, Guest attempted to testify as to why he pleaded guilty to an offense that he claims he did not commit. The State objected that the testimony was an improper collateral attack on the judgment. Outside the presence of the jury, Guest made an offer of proof explaining why he pleaded guilty to the offense. Following his offer of proof, Guest asked that the jury be allowed to hear his testimony as a "collateral attack" of the "veracity of the conviction." The trial court sustained the State's objection to Guest's testimony.
2. The trial court did not abuse its discretion in prohibiting Guest from testifying to his reasons for pleading guilty because such testimony was a collateral attack of his prior conviction.
On appeal, Guest argues that the trial court applied the rule of collateral estoppel "much too expansively" when it refused to allow him to explain his reasons for pleading guilty to his third charge of sexual assault of a child. "A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against." Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). If an issue was litigated and critical to the prior criminal conviction, the convicted party cannot attack the judgment or any issue necessarily decided by the guilty verdict. Johnston v. Am. Med. Int'l, 36 S.W.3d 572, 576 (Tex. App.—Tyler 2000, pet. denied). Specifically, "a criminal defendant cannot litigate the issue of his guilt again in a civil action, since a fully litigated issue should not be retried." Id. Likewise, a guilty plea collaterally estops the convicted party from relitigating his guilt because "a valid guilty plea serves as a full and fair litigation of the facts necessary to establish the elements of the crime." Id. (quoting State Farm Fire Cas. Co. v. Fullerton, 118 F.3d 374, 378, 384 (5th Cir.1997)). In sum, a respondent "cannot collaterally attack [a] criminal conviction in [a] commitment proceeding. . . ." In re Commitment of Eeds, 254 S.W.3d 555, 558 (Tex. App.—Beaumont 2008, no pet.).
Guest also argues that the State "opened the door" to testimony regarding his reasons for pleading guilty to the 2008 offense by "subjecting him to a rigorous direct-examination regarding the underlying facts of his 2008 sex offense." However, Guest failed to make this argument in the trial court during his attempt to introduce this testimony. Accordingly, he has failed to preserve this argument for our review. See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding that to preserve error for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection); Wohlfahrt, 172 S.W.3d at 639-40 (holding that a point on appeal must comport with the argument made at trial); see, e.g., Requena-Castaneda v. State, No. 10-17-00125-CR, 2018 WL 4925774, at *3 (Tex. App.—Waco Oct. 10, 2018, no pet.) (mem. op., not designated for publication) (holding that an "opening the door" complaint was not preserved because it was not made in the trial court).
At the civil commitment proceeding, Guest sought to testify to the reasons why he pleaded guilty to his third sexual offense. Guest's proffered testimony directly related to his guilt, i.e., whether he pleaded guilty to the sexual offense because he committed the offense or whether he pleaded guilty for some other reason. Regardless of the reasons for his guilty plea, Guest's guilt had already been determined in the prior criminal proceeding and could not be relitigated. Thus, we cannot conclude that the trial court abused its discretion by excluding Guest's testimony on grounds of collateral estoppel or collateral attack. See id.; see also Johnston, 36 S.W.3d at 576. We overrule Guest's fifth issue.
IV. CONCLUSION
Having overruled Guest's five issues, we affirm the trial court's order of the civil commitment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice Delivered: April 1, 2021