In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00329-CV
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IN RE COMMITMENT OF PETE AGAPITO HERNANDEZ
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-11-12012 CV
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MEMORANDUM OPINION
The State of Texas filed a petition seeking the involuntary civil commitment
of Pete Agapito Hernandez as a sexually violent predator. See Tex. Health &
Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP statute). After
a jury found Hernandez to be a sexually violent predator, the trial court rendered a
final judgment and an order of civil commitment. Subsequently, Hernandez
appealed, challenging four of the rulings the trial court made during the course of
his trial. In his first issue, Hernandez contends the trial court abused its discretion
by allowing the State to summarize the evidence that it intended to present during
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the trial during its opening statement. In issue two, Hernandez contends the trial
court abused its discretion by allowing the State to introduce Hernandez’s
responses to the State’s requests for admission into evidence. In issue three,
Hernandez argues the trial court abused its discretion by allowing the State to
introduce evidence of underlying facts or data supporting the opinions of its
experts when they testified during the trial. In issue four, Hernandez argues the
trial court abused its discretion by sustaining the State’s objection to one of the
questions his attorney posed to the State’s forensic psychologist, Dr. Jason
Dunham.
We conclude that Hernandez has not shown that any of his issues require
that we reverse the trial court’s judgment. With respect to issue one, Hernandez has
not shown that the matters discussed by the State’s attorney caused the jury to
render an improper verdict. With respect to the remaining issues, Hernandez has
failed to demonstrate that the trial court abused its discretion with respect to the
rulings at issue. We affirm the trial court’s judgment.
The Statute
Under the SVP statute, the State bears the burden of proving beyond a
reasonable doubt that the person it seeks to commit for treatment is a sexually
violent predator. Id. § 841.062 (West 2010). As defined by the Legislature, a
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sexually violent predator is a person who “(1) is a repeat sexually violent offender;
and (2) suffers from a behavioral abnormality that makes the person likely to
engage in a predatory act of sexual violence.” Id. § 841.003(a) (West 2010). Under
the statute, a “‘[b]ehavioral abnormality’” is “a congenital or acquired condition
that, by affecting a person’s emotional or volitional capacity, predisposes the
person to commit a sexually violent offense, to the extent that the person becomes
a menace to the health and safety of another person.” Id. § 841.002(2) (West Supp.
2012). In another case arising under the SVP statue, we stated that “[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).
Opening Statement
In issue one, Hernandez contends the trial court abused its discretion by
permitting the State’s attorney to summarize the evidence during her opening
statement. With respect to opening statement, Rule 265(a) of the Texas Rules of
Civil Procedure provides that the party with the burden of proof on the whole case
“shall state to the jury briefly the nature of his claim or defense and what said party
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expects to prove and the relief sought.” Tex. R. Civ. P. 265(a). During opening
statement, the State’s attorney generally described the testimony she expected to
present during the case. In part of her opening statement, the State’s attorney
mentioned various specific facts about two of Hernandez’s prior sexually violent
offenses, a rape that occurred in 1993 and an aggravated kidnapping with intent to
violate and sexually abuse the victim that occurred in 1994. The record shows that
Hernandez’s attorney did not object when the State’s attorney first began to
mention specific facts about the 1993 incident; instead, the objection occurred after
the State’s attorney had already discussed many of the facts about the 1993 rape.
The trial court overruled Hernandez’s objection. With respect to Hernandez’s 1994
aggravated kidnapping conviction, the record shows that Hernandez failed to
object when the State’s attorney described that crime.
Generally, by detailing evidence during opening statement, counsel places
matters in front of the jury before the trial court has an opportunity to determine
whether it is admissible. As a result, an opening statement that discusses evidence
that might not later be admitted carries the potential of confusing the jury if the
evidence the trial court admits differs from the evidence counsel mentioned in
opening statement. See Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. Civ.
App.—Austin 1975, writ ref’d n.r.e.).
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Hernandez argues that he was harmed because introducing graphic details
concerning his prior sexual offenses during opening statement prejudiced the jury.
In response, the State contends that by failing to timely object, Hernandez waived
his objections with respect to the 1994 aggravated kidnapping. With respect to the
1993 rape, the State does not defend the degree of detail contained in its opening
statement; instead, the State argues that any error created by the trial court’s ruling
was harmless. See Tex. R. App. P. 44.1(a)(1).
After comparing the statements made in opening statement with the
evidence admitted during the trial, we conclude that the statements made by the
State’s attorney in opening about the 1993 rape do not vary in any significant
manner from the evidence that the trial court subsequently admitted. Generally,
when evidence consistent with the details described in the opening statement is
developed during trial, the trial court’s error in overruling an objection
complaining about counsel’s mention of the evidence in opening statement is
harmless. See Guerrero v. Smith, 864 S.W.2d 797, 800 (Tex. App.—Houston [14th
Dist.] 1993, no pet.). We conclude that the matters the State mentioned during
opening statement about the 1993 rape did not cause the jury to reach an improper
verdict. See Tex. R. App. P. 44.1.
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With respect to the matters discussed in opening statement about the 1994
aggravated kidnapping, Hernandez failed to preserve error because he failed to
object. See Tex. R. App. P. 33.1(a) (requiring a party to make a timely request,
objection, or motion and obtain a ruling from the trial court to preserve error for
appeal). Even had Hernandez lodged an objection, the matters mentioned during
opening statement about the 1994 kidnapping do not vary materially from the
evidence admitted during trial. We overrule issue one.
Requests for Admission
In issue two, Hernandez complains the trial court abused its discretion by
allowing the State to read his responses to the State’s requests for admission into
evidence. See generally Tex. R. Civ. P. 192.1(e) (listing permissible forms of
discovery, which include requests for admission). According to Hernandez, the
State used his responses to diminish the State’s burden of proving that he is a
sexually violent predator.
Unless otherwise provided by the SVP statute, an SVP commitment
proceeding is subject to the Texas Rules of Civil Procedure. See Tex. Health &
Safety Code Ann. § 841.146(b) (West 2010). Rule 198.3, which governs the effect
of admissions, states that “[a] matter admitted under this rule is conclusively
established as to the party making the admission unless the court permits the party
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to withdraw or amend the admission.” Tex. R. Civ. P. 198.3 (Effect of Admissions;
Withdrawal or Amendment). We have previously held that there is no conflict
between the SVP statute and Rule 198, and that admissions may be used
appropriately in SVP cases. See In re Commitment of Malone, 336 S.W.3d 860,
862 (Tex. App.—Beaumont 2011, pet. denied). In other words, if relevant to the
disputed issues, a trial court may allow a party’s responses to the opposing party’s
requests for admission to be used as evidence in SVP cases.
Hernandez argues that by using his responses to the admissions, the State
lowered its burden of proof. We disagree that by reading Hernandez’s responses
into evidence, the State lowered its burden of proof. During voir dire, the State
explained that it bore the burden of proof on its claims. In closing argument, the
State reminded the jury that it had to prove that Hernandez is a sexually violent
predator beyond reasonable doubt. The trial court instructed the jury in the charge
that a “‘yes’” answer was to “be based on a belief beyond a reasonable doubt.” The
charge required the jury to find that Hernandez is a sexually violent predator
“beyond a reasonable doubt.”
While the State used Hernandez’s responses as evidence, his responses did
not lower the State’s burden of proving its case to a lower standard than the one
required, beyond reasonable doubt. See In re Commitment of Delacruz, No. 09-11-
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00554-CV, 2012 Tex. App. LEXIS 649, at **6-7 (Tex. App.—Beaumont Jan. 26,
2012, pet. denied) (mem. op.). We conclude that the State’s use of Hernandez’s
responses was not improper. We overrule issue two.
Disclosure of Underlying Facts and Data
In issue three, Hernandez contends the trial court abused its discretion in
allowing the State’s experts, Dr. Michael Arambula and Dr. Jason Dunham, to
describe the details of Hernandez’s prior sexual offenses when they testified.
During trial, Hernandez objected to the experts disclosing the details of his prior
sexual offenses to the jury. At trial, Hernandez argued that the details of his prior
offenses were inadmissible as hearsay, and that admitting the testimony detailing
the facts of how he committed his prior offenses would unfairly prejudice the jury.
The trial court overruled his objections.
Before admitting the testimony at issue, the record shows the trial court
instructed the jury about using information that experts rely on in forming
opinions, stating:
Hearsay is not admissible as evidence in trial except as provided by
narrow and specific hearsay exceptions. The hearsay evidence
contained in the records about the Respondent’s underlying sex
offenses, arrests, conduct while on probation or parole, prison
disciplinary actions and other such hearsay would ordinarily not be
admissible in the trial; however, because the State’s expert witnesses
and this witness specifically, relied upon those records in forming his
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opinion, you can hear about these records for the narrow purpose of
explanation or support of that expert’s opinion.
In the jury charge, the trial court gave the jury a similar limiting instruction,
informing the jury that such information “was admitted only for the purpose of
showing the basis of the experts’ opinion[s] and cannot be considered as evidence
to prove the truth of the matter[s] asserted.”
Rule 705(a) of the Texas Rules of Evidence allows an expert to disclose the
facts or data on which the expert has based an opinion. See Tex. R. Evid. 705(a). If
the trial court admits underlying facts that are otherwise inadmissible, the court, on
request, is required to give the jury a limiting instruction. See Tex. R. Evid. 705(d).
When the trial court has given the jury a limiting instruction, we presume that it
was followed. See In re Commitment of Day, 342 S.W.3d 193, 198-99 (Tex.
App.—Beaumont 2011, pet. denied).
We conclude the trial court had the discretion to admit the testimony at
issue. In light of the jury instructions regarding using hearsay in records that are
relied upon by the experts, the evidence the trial court admitted to explain the bases
of the expert testimony was not unfairly prejudicial. We overrule issue three.
Cross-Examination
While Dr. Dunham was testifying, Hernandez’s counsel asked: “Does it
matter in your opinion where Mr. Hernandez gets this sex offender treatment in the
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future that you think he needs?” The trial court sustained the State’s objection that
the question was not relevant. In issue four, Hernandez argues the trial court should
have allowed him to ask this question. According to Hernandez, his question is
relevant to the jury’s determining if he is likely to commit a future sexually violent
offense. According to the State, the possibility that Hernandez could receive future
treatment “is not relevant to the question of whether he is currently a sexually
violent predator.”
The testimony from the trial does not show that Hernandez had any concrete
plans to be treated by healthcare professionals in programs designed to reduce the
risk that he would future commit sexually violent offenses. The record reflects that
while in prison, Hernandez failed to complete a program designed to reduce his
risk of recidivism. Additionally, the record reflects that during the trial, Hernandez
testified he did not feel he needed any treatment.
On the record before us, the trial court properly exercised its discretion by
treating the relevance of the question as a question of relevancy conditioned on
whether Hernandez had shown he would obtain treatment in a program that would
lower his risk of committing another sexually violent offense. See Tex. R. Evid.
104(b) (Relevancy Conditioned on Fact). The question Hernandez sought to ask is
premised on the assumption that he intended to obtain treatment, a conditional fact
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that was never proven. We conclude that the question at issue, on the record before
us, was not a fact of consequence. 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 that it would be without the evidence.”); Tex. R. Evid. 402 (“Evidence
which is not relevant is inadmissible.”). We hold the trial court did not abuse its
discretion by disallowing the question at issue. See Tex. R. Evid. 104(b).
Having overruled all of Hernandez’s issues, we affirm the trial court’s
judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on June 7, 2013
Opinion Delivered September 19, 2013
Before Gaultney, Kreger, and Horton, JJ.
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in Re Commitment of Pete Agapito Hernandez
Combined Opinion