In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00273-CV
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IN RE COMMITMENT OF TIMOTHY EARL GREEN
_________________________________ ______________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-09-10092 CV
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MEMORANDUM OPINION
The State of Texas filed a petition to commit Timothy Earl Green as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2013). A jury found that Green is a sexually violent predator
and the trial court rendered a final judgment and an order of civil commitment. In
three appellate issues, Green challenges the legal and factual sufficiency of the
evidence, the denial of his objections to the State’s request for admissions, and the
trial court’s failure to grant his motion to modify. We affirm the trial court’s
judgment and order of civil commitment.
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Legal and Factual Sufficiency
In issue one, Green contends that the evidence is legally and factually
insufficient to support a finding that he suffers from a behavioral abnormality.
Under legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could find,
beyond a reasonable doubt, the elements required for commitment under the SVP
statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont
2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in
the testimony, weigh the evidence, and draw reasonable inferences from basic facts
to ultimate facts. Id. at 887. Under factual sufficiency review, we weigh the
evidence to determine “whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont
2011, pet. denied).
In an SVP case, the State must prove, beyond a reasonable doubt, that a
person is a sexually violent predator. Tex. Health & Safety Code Ann. §
841.062(a) (West 2010). A person is a “sexually violent predator” 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) (West
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Supp. 2013). A “behavioral abnormality” is “a congenital or acquired condition
that, by affecting a person’s emotional or volitional capacity, predisposes the
person to commit a sexually violent offense, to the extent that the person becomes
a menace to the health and safety of another person.” Id. § 841.002(2) (West Supp.
2013). “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.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex.
App.—Beaumont 2003, pet. denied).
In this case, the jury heard evidence regarding Green’s criminal history,
including the details of his sexual offenses. Green testified that he has never
sexually assaulted a woman, but has been convicted of sexual offenses against
women. He testified that he has not received sex offender treatment, does not
believe he is a sex offender, and will not reoffend upon release. Dr. Marisa Mauro
diagnosed Green with a history of alcohol abuse and personality disorder not
otherwise specified with antisocial features. She testified that Green has some
psychopathic traits and that his scores on actuarial tests place him in the moderate
category for re-offense. She testified that Green does not have a behavioral
abnormality, she does not believe he is sexually deviant, he does not have serious
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difficulty controlling his behavior, and he is not likely to engage in a predatory act
of sexual violence.
Dr. David Self testified that Green has a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence. Dr. Self identified
several factors that increase Green’s risk of re-offense, including sexual deviance,
and diagnosed Green with paraphilia not otherwise specified, personality disorder
not otherwise specified with antisocial traits, and history of polysubstance abuse.
He testified that paraphilia and personality disorders are chronic conditions, that
Green has some psychopathic traits, and that Green’s criminal history shows a
pattern of escalation.
The jury was entitled to infer current serious difficulty controlling behavior
based on Green’s past behavior, Green’s testimony, and the expert testimony. See
In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930,
at *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); see also In re
Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at
*20 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem. op.). The jury could
reasonably conclude that Green is likely to commit predatory acts of sexual
violence directed toward individuals for the primary purpose of victimization. See
In re Commitment of Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681,
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at **6-7 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see also
Mullens, 92 S.W.3d at 887; Almaguer, 117 S.W.3d at 506; Burnett, 2009 Tex.
App. LEXIS 9930, at *13; Grinstead, 2009 Tex. App. LEXIS 228, at *16. Viewing
the evidence in the light most favorable to the verdict, a rational jury could have
found, beyond a reasonable doubt, that Green has a behavioral abnormality that
predisposes him to commit a predatory act of sexual violence; thus, the evidence is
legally sufficient. See Kansas v. Crane, 534 U.S. 407, 413 (2002); see also
Mullens, 92 S.W.3d at 885. Weighing all of the evidence, the verdict does not
reflect a risk of injustice that would compel ordering a new trial. See Day, 342
S.W.3d at 213. We overrule issue one.
The State’s Request for Admissions
In issue two, Green argues that the trial court improperly overruled his
objections to the State’s request for admissions that inquired about his prior
offenses and lack of participation in sex offender treatment. At trial, the State read
Green’s responses into evidence. The State later moved for a directed verdict as to
whether Green is a repeat sexually violent offender. After noting that Green
admitted to having two convictions for sexual offenses, the trial court granted the
State’s motion.
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“We review a trial court’s discovery rulings for abuse of discretion.” In re
Commitment of Perez, No. 09-12-00132-CV, 2013 Tex. App. LEXIS 1866, at *13
(Tex. App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.). “We will reverse a
judgment upon a challenge to that court’s discovery ruling when the appellant
shows that the trial court abused its discretion and the trial court’s error probably
caused the rendition of an improper judgment or prevented the appellant from
properly presenting the case on appeal.” Id. at *17; Tex. R. App. P. 44.1(a).
Pen packets were admitted into evidence, without objection, that show
Green’s convictions for attempted sexual assault, aggravated sexual assault, and
aggravated kidnapping. During his own testimony, Green admitted to these
convictions (as well as other convictions), admitted to having been arrested for
drug possession, and admitted that he does not believe he is a sex offender. Self
and Mauro also testified regarding Green’s criminal history. Additionally, the
record contains other evidence by which the trial court could grant a directed
verdict and by which the jury could reasonably conclude that Green is a sexually
violent predator. Even the erroneous admission of evidence is harmless when it is
cumulative. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.
2004). Because the admission of Green’s responses to request for admissions was
not error, we overrule issue two.
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Motion to Modify
In issue three, Green challenges the trial court’s failure to grant his motion to
modify the civil commitment order. The record does not indicate that the trial court
ruled on Green’s motion. Because Green failed to obtain a ruling on his motion,
issue three is not preserved for appellate review and is overruled. See Tex. R. App.
P. 33.1(a); see also Finley v. May, 154 S.W.3d 196, 199-200 (Tex. App.—Austin
2004, no pet.) (To preserve error for appeal, a party complaining of a trial court’s
ruling on a motion must show that the motion was presented to the trial court and
acted upon by the trial court.). We affirm the trial court’s judgment and order of
civil commitment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on November 20, 2013
Opinion Delivered December 12, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
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