in Re Commitment of Bruce Luna

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00444-CV
____________________

IN RE COMMITMENT OF BRUCE LUNA

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 14-03-03235 CV

MEMORANDUM OPINION

The State of Texas filed a petition to commit Bruce Luna (Luna) as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2014) (SVP Act). A jury found that Luna is a sexually violent

predator, and the trial court rendered a final judgment and an order of civil

commitment. Luna timely filed a notice of appeal.

In five appellate issues, Luna challenges the legal and factual sufficiency of

the evidence supporting the jury’s finding that he has a behavioral abnormality and

also challenges the admission of certain evidence and testimony. We affirm the

trial court’s judgment.
 THE EVIDENCE AT TRIAL

Admissions by Luna

The jury heard Luna’s admissions to the State’s requests for admissions

wherein Luna admitted pleading guilty in 2000 to two counts of aggravated sexual

assault against two children, P.J. and S.J.; both children were younger than

fourteen years of age at the time of the assaults.1 Luna was placed on deferred

adjudication. Luna admitted that he viewed child pornography while on probation

and subsequently the court found he had violated the terms and conditions of his

probation, he was convicted of the aggravated sexual assault charges, and he

received a ten-year sentence for each charge. Luna also admitted to pleading guilty

in 2008 to the failure to register as a sex offender, and he was convicted and

received a two-year sentence.

The jury also heard Luna’s admission to having engaged in sexual conduct

with P.J. when she was twelve and thirteen years old, with S.J. when she was ten

and eleven years old, and with P.J. and S.J.’s sister when she was younger than

thirteen years old. He admitted that his sexual contact with the children ranged

1
We identify the victims by using initials that disguise their identities. See
Tex. Const. art. I, § 30(a)(1) (granting crime victims the “right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
from “more than 10 occasions” to “more than 25 occasions.” He also admitted that

he had sexual contact with a five-year-old girl when he was seventeen years old.

He further admitted that in 2007, he viewed child pornography depicting children

between the ages of two and five years of age and also depicting prepubescent

children and that he has sexual thoughts and urges involving sexual activity with

prepubescent children. Luna admitted he is a sex offender.

Testimony of Luna

Luna testified that at the time of the civil commitment trial he was

incarcerated for two convictions for aggravated sexual assault, serving ten-year

concurrent sentences on each conviction, and that his sentences will discharge in

2017. He agreed that the victims he was convicted of offending against were his

stepdaughters. He agreed he was “using the girls to try to get back with [their

mother]” after he and the mother had separated.

He testified that he started having sexual thoughts about his stepdaughter

P.J. when she was twelve years old. He described his offense against P.J., which

included watching her take a shower and making sexual contact with her with his

finger and his mouth. He agreed he groomed P.J. and that he was sexually aroused

before and after sexual contact with her. He agreed he told P.J. not to tell anyone

because “her mother would get in trouble with the police[.]” At trial, he agreed he
performed oral sex on P.J. about thirty times, but when asked about having

previously indicated that it was as many as fifty or 100 times, he responded “[t]hat

was for the sake of polygraph during treatment.” He testified that his sexual

offending against P.J. lasted about a year.

Luna also testified he sexually offended against P.J.’s younger sister S.J.,

that he started having sexual thoughts about S.J. when she was nine years old, and

he agreed he “used grooming behaviors” with S.J. “[t]o get her to comply with

what [he] wanted her to do.” He described his offense against S.J., which included

watching her take a shower and sexual contact with her with his hands, his mouth,

and his penis. He testified that he had sexual contact with S.J. thirty to thirty-five

times. When asked about having previously indicated that he exposed himself to

S.J. approximately 100 times, he responded “that was for the polygraphs.” He

testified that the sexual offending against S.J. went on for approximately eighteen

months and that “this behavior” with P.J. and S.J. went on for at least two-and-a-

half years. Luna also testified that P.J. and S.J. had another sister, who was around

twelve or thirteen years old whom he watched in the shower ten to twelve times

and also that he “[l]ifted up her panties and viewed her vagina.”

He agreed that he was placed on ten years’ deferred adjudication for the

offenses against P.J. and S.J. and that, as a condition of probation, he was not
permitted to have contact with anyone younger than seventeen years old, he was

not allowed to be in areas where children would congregate, he was required to

register as a sex offender, and he was required to participate in sex offender

treatment. He testified that he married a woman while he was on probation. He was

not allowed to live in the same house with his wife because her two children lived

with her, but he testified that he would sometimes go to her house on weekends.

He agreed he did not disclose his marriage to his treatment provider or his

probation officer.

He testified that he started sex offender treatment in 2000 and received

individual and group therapy from the Counseling Institute of Texas. He agreed

that in 2004 his probation officer made him switch to Central Psychological

Services (Central Services) because Luna had not disclosed his marriage. He

testified that he did not find the treatment by Central Services helpful, and he was

discharged from treatment by Central Services in July of 2007. He explained the

reason he stopped treatment at Central Services because he failed to register as a

sex offender and he committed another crime, including looking at child

pornography, which was a violation of his probation. He testified that in June of

2007 he took an overdose of sleeping pills and he was hospitalized on an inpatient

basis at a mental health facility for a week, and following his release, he
voluntarily readmitted himself at the same facility. He agreed that, after he was

released from the facility, he went to stay with his wife for a couple of weeks, but

he did not update his sex offender registration. He also agreed that he was arrested

for failure to register as a sex offender and his probation was revoked.

A copy of a handwritten statement Luna gave to the police in July of 2007

was admitted into evidence, and the State cross-examined Luna about the

statement. Luna agreed that in his statement he wrote that he looked at child

pornography on his home computer, including some involving children aged two

to five, and that he used the internet “‘to find pictures of young-looking girls.’” He

testified that the requirements of his probation were “[r]egistering, safety zones,

not going within a certain distance of where people congregate, counseling, just

not being around children.” He stated he did not get in trouble for not following the

terms of his probation prior to 2007, but he stated that he failed to register in 2007

because “I just got depressed and I gave up. Just -- I gave up on life. I didn’t really

care what happened to me, so I just didn’t do anything.”

Luna testified that, at the time of trial, he was in a nine-month sex offender

treatment program, but he stated he was not going to finish the program in the

nine-month time period and his deadline had been extended twice. He agreed that

he had received two informal write-ups in connection with the sex offender
treatment for not attending group sessions and not turning in some assignments. He

testified that he had not received any disciplinaries while in prison other than the

write-ups for not attending group.

Luna explained to the jury that he was not going to reoffend after release

from prison because he did not want to and he had the tools not to, including

calling treatment providers and talking with his parole officer or a family member.

He also stated that his depression was “under control right now.” However, he

admitted that he still has sexual urges regarding children but that he “deal[s] with

them.” He also agreed that he is currently attracted to prepubescent females, that he

has fantasized about rape, and that he is sexually aroused by fantasies of his 2010

victims. He agreed he was responsible for what happened to P.J. and S.J. and for

how his life has turned out.

Testimony of Dr. Arambula

Dr. Michael Arambula, a board-certified forensic psychiatrist, testified for

the State. Based on his training, his experience, the records he reviewed, and his

interview with Luna, Arambula believes Luna suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

Arambula explained his methodology for assessing a behavioral

abnormality, which he testified is the methodology followed by experts with
forensic training who do the same type of evaluations. He stated that in reaching

his opinion, he reviewed legal records associated with Luna’s convictions,

including the facts of his sexual offenses, administrative records from prison, notes

concerning his treatment, a previous psychological evaluation of Luna, and

deposition testimony of Luna, of himself, and of Dr. Mauro (who served as a

defense expert). Arambula explained he relied on the records of the history of

Luna’s sexual offenses “to understand how an illness starts and behaves over

time[]”and “to know [] the clinical course of the illness[.]”

In reviewing the details of Luna’s offenses against P.J., Arambula testified

that it appeared to him that “[P.J.] was being used as maybe a substitute for

[Luna’s] wife that he had been separated from[]” and the activity “progressed[].”

Arambula testified that Luna told him P.J. “was easier to control . . . and he

perceived that she wouldn’t make an outcry and get them into trouble.” Arambula

also stated that the treatment notes indicated Luna started having sexual fantasies

about P.J. when P.J. was about nine years old. Arambula stated that Luna told him

he offended against P.J. one or two times, but that the records indicated a much

larger number of incidents. Arambula explained that he has learned that when a

person has a sexually deviant condition, it interferes with that person’s ability to
objectively report what they have done, and they are going to minimize what they

have done, which is “part of the illness.”

Arambula testified that the details of Luna’s offenses against S.J. showed an

“escalation of what he did with her, even though she was younger [than P.J.]”

Arambula said that Luna admitted to some but not all of his sexual conduct with

S.J. When asked the significance of Luna’s admitting certain sexual conduct with

S.J. at trial but then refusing to admit to the conduct in his clinical interview,

Arambula explained that this was consistent with what he had seen in notes, and

that Luna would “tell some about his history, but he won’t tell all until somebody

confronts him.” Arambula also testified that the discrepancy between Luna’s

rendition of what happened and the victims’ accounts indicated to Arambula that

Luna was “still early in treatment[.]”

Arambula testified that he reviewed Luna’s treatment notes from 2000,

which indicated Luna was “secretive about what was going on[,]” and that he

would keep things from his group members and therapist. Arambula said he

considered Luna a treatment failure with respect to his treatment at two facilities

between 2000 and 2004 because there was an issue of Luna accessing child

pornography, Luna did not turn in assignments timely, Luna kept things from
others, Luna was not compliant with treatment, and Luna’s discharge notes reflect

that Luna had very limited insight.

Arambula gave Luna a diagnosis of pedophilia, which Arambula testified is

a sexual deviance. According to Arambula, Luna’s sexual deviance is broader than

the acts for which he was convicted. Arambula explained that sexual deviance and

pedophilia are chronic conditions but they may lessen with time. Arambula

identified certain signs and symptoms that indicate Luna’s sexual deviance is still

present and currently exists, such as Luna’s denial and minimization, as well as the

fact that Luna admits to still having deviant fantasies. Arambula testified that the

type of pornography that Luna admits he looked at was significant because child

pornography is “pathologic” and illegal, and accessing child pornography was

symptomatic of Luna’s illness. In Arambula’s opinion, Luna does not yet know

how to control his pedophilic sexual deviance. Arambula testified that Luna’s

history with polysubstance abuse seemed to be in remission, although Arambula

regarded it as an aggravating factor because “any time an individual is intoxicated,

then it tends to reduce their inhibitions[,]” which is a danger for someone with

sexual deviance.

Arambula also diagnosed Luna with an unspecified personality disorder,

with features of narcissism. Arambula explained Luna had done some antisocial
things in the past, and the records also indicated borderline personality. Arambula

further testified that Luna has a history of “an unspecified mood disorder[,]” has

taken medication for a mood disorder in the past, and when he was hospitalized

after an overdose, he was diagnosed with recurrent major depression, but later the

diagnosis changed to bipolar disorder unspecified. Arambula explained that a

mood disorder together with sexual deviance is significant because “if the mental

condition becomes active, it’s going to aggravate this. . . . that’s when [Luna]

started accessing porn and he was very depressed and he just got worse.”

Arambula testified that Luna has a history of noncompliance with taking his

medication for his mood disorder and that Luna was not taking his medication

when he sexually offended and when he accessed child pornography.

Arambula stated that Luna had a good adjustment to prison and in prison he

did not get into a lot of trouble. Arambula noted that Luna has been slow getting

sex offender treatment assignments done, that the treatment concepts were still

“fuzzy” to Luna, Luna’s insight is “not great,” and the treatment “hasn’t been real

positive yet.”

Arambula testified that the psychological evaluation he reviewed on Luna

was consistent with Arambula’s finding that Luna has a behavioral abnormality.

The defense objected on the basis of hearsay, and the court responded that
“[e]xperts are allowed to rely on hearsay.” The defense requested a running

objection and limiting instruction, and the court gave a limiting instruction.

Arambula explained that he looked at the results of the Static-99 actuarial

performed by a psychologist, and that although Luna’s results placed him in the

low-risk category, Arambula did not believe this was reflective of Luna’s actual

risk. Arambula explained that “the actuarials don’t look at a history of sexual abuse

or misconduct. They only really look at sexual arrests or sex offense convictions,”

and although Luna offended against P.J. and S.J. “probably well over 100 times[,]”

he only has two convictions. 2

Arambula testified that Luna’s greatest risk factor is his sexual deviance. He

testified that Luna’s history with substance abuse is also a risk factor, although

Luna has been in remission for a long time. Arambula testified that Luna’s

untreated mood disorder was an aggravating risk factor because “[h]is relapse rate

is so high and when it occurs again, that can aggravate his underlying sexual

deviance.” In particular, Arambula noted that one of the symptoms of hypomania

2
The record reflects that Luna was charged with aggravated sexual assault
against P.J. for conduct that occurred on November 14, 1998, and he was charged
with aggravated sexual against S.J. for conduct that occurred on October 19, 1999.
Luna admitted at trial that he had previously stated he offended against P.J. “well
over 100 times” and he testified he offended against S.J. thirty to thirty-five times,
and that his offenses against both children occurred over what he agreed was a
period of “at least about two-and-a-half years.” See infra at 3-4.
is increased libido, which can make sexual deviance worse. Arambula noted the

high number of incidents and the fact that Luna’s offending extended over two-

and-a-half years were risk factors, as well as the fact that Luna had “failed

treatment” twice.

According to Arambula, there were some positive factors that would reduce

Luna’s risk of reoffending including his stable occupational history, the courses

and education Luna pursued in prison, the fact he stayed out of trouble in prison,

his low number of antisocial traits, and the fact that Luna has offended only against

girls. Arambula testified that Luna’s marriage would also be a positive factor if the

wife is not an enabler. On cross-examination, Arambula agreed that Luna told

Arambula that he did not commit a sexual offense against a child in the seven-and-

a-half years between pleading guilty and before his probation was revoked.

According to Arambula, from a clinical perspective, even while Luna was in

treatment, “he relapsed,” accessing pornography and being sexually aroused by

sexually deviant thoughts.

Testimony of Joseph Brown

Joseph Brown (Brown), a licensed social worker and Luna’s current sex

offender treatment provider, testified for the State. Brown testified that Luna was

currently in the second phase of a nine-month treatment program, which includes
both individual and group therapy, and that he has been Luna’s treatment provider

since Luna began the second phase of the program. Brown testified that one of the

requirements in the second phase is for each offender to make a group presentation

of what life was like at the time they offended, to discuss the offense itself, and to

describe how the offense may have affected victims and others. According to

Brown, Luna had attempted to present his synopsis twice but Luna was

unsuccessful due to Luna’s minimization and evasiveness about discussing details

of his offenses.

Brown testified that Luna had not given any indication that Luna

understands his own offense cycle, that he has not observed Luna showing insight

into his offending behavior, that he has not seen Luna demonstrate any recall of

things learned from previous treatment, and that Luna’s refusal to be forthcoming

was hindering his progress in treatment. Brown testified that Luna had received

two disciplinaries during the program – one for failure to complete his offense

synopsis, and the other for refusal to participate and not going to group – but there

was no punishment. Brown stated that he does not believe Luna has internalized

the principles of the treatment program and that Luna does not understand his

pattern of abusive behavior. According to Brown, Luna did accept responsibility

for his offenses and he was hopeful Luna would complete treatment.
Testimony of Dr. Mauro

Dr. Melissa Mauro, a licensed clinical and forensic psychologist and

licensed sex offender treatment provider, testified for Luna. She testified that, in

her opinion, Luna does not have a behavioral abnormality. She explained that, in

forming her opinion, she relied on a four-hour clinical interview she had with

Luna, a review of court records, police reports, victim statements, medical and

mental health records, a report by another psychologist, sex offender treatment

records, records from Luna’s probation officer, depositions of Luna, of Dr.

Arambula, of herself, three conversations she had with Luna’s treatment provider,

and actuarials. Mauro agreed that the facts and data she relied on in forming her

opinion are those that experts in her field rely on and that her evaluation was in

accordance with her training, education, and experience, as well as the accepted

standards in her field.

According to Mauro, during her interview with Luna, they discussed his

personal history, sexual development history, work history, institutional

adjustment, and his offenses and sex offender treatment, which she explained gave

her information and data related to a behavioral abnormality and the risk of

recidivism. She testified that she found Luna to be “reasonably forthcoming[]” in

the interview, admitting to the sex offenses of which he had been convicted and
giving her more details than she had in the records. She testified that she saw “a

little bit of positive impression management[]” with Luna, which she explained as

“the person is attempting to present themselves in a positive light,” and that Luna

did give some inconsistences compared with what she had in the records. Mauro

testified that she did not believe Luna was being untruthful when he was not

forthcoming about details of the offenses, and that he gave her a lot of negative

information about himself, which she found significant because it suggested to her

that Luna was attempting to be forthcoming and honest. According to Mauro,

research has shown that minimization is not a risk factor and it is not relevant to

behavior abnormality or recidivism, although it is important to effective treatment.

Mauro testified that she diagnosed Luna with “pedophilic disorder

nonexclusive type limited to females, incest only[]” and she agreed that pedophilia

is a chronic condition. In her testimony, she explained that the details of Luna’s

offenses against P.J. and S.J. were evidence of pedophilic disorder. Mauro testified

that she did not diagnose Luna with any personality disorder or pathology nor did

she see evidence of an antisocial orientation in Luna. She also testified that, while

Luna has some symptoms in his history associated with depression, she found no

evidence for bipolar disorder nor any evidence that depression or bipolar disorder

is predisposing Luna to commit sexually violent offenses. Although Mauro
testified that Luna’s pedophilia diagnosis is a “major dynamic factor[,]” she agreed

that it is possible for someone to have pedophilia and not have a behavioral

abnormality and that the relationship between a paraphilia and sexual recidivism

was “statistically small.”

Mauro testified that she completed the Static-99R actuarial in evaluating

Luna and she also reviewed results of a Static-99R completed by another

psychologist. Mauro explained that she gave Luna a score of “negative 1[,]” which

she explained was the “lowest category[]” of risk compared with other sex

offenders. She further testified that the predictive validity of the Static-99R was

much higher than any other form of prediction. Mauro testified she also completed

the Static-2002R actuarial, on which Luna’s score was a “1” which Mauro

explained was a low score with a low risk of recidivism.

Mauro testified that it was significant that Luna was convicted of offenses

against stepdaughters because she said research shows that individuals who offend

against relatives or against girls are less likely to offend in the future. Mauro

explained that, despite the fact that Luna offended against P.J. and S.J. many times,

she did not regard Luna as having a behavioral abnormality because, after having

been detected and arrested, he complied with probation requirements for seven

years, went to sex offender treatment, got remarried, was working, and “he does
not ever reoffend again.” She also testified that she had never seen any research

showing that the number of times a person offends against a victim is relevant to

recidivism. Mauro testified that the probation infractions that resulted in Luna’s

probation being revoked were not relevant to whether he has a behavioral

abnormality because failure to register as a sex offender is not a sex offense and

looking at child pornography is not a sexually violent offense. She also explained

that “there’s no evidence that [Luna] has acted out on another victim since 1998.”

Mauro did not see anything in the records suggesting Luna’s wife would

“enable” him in any way, Mauro thought Luna’s records reflected that his wife was

willing to cooperate with his treatment providers and potentially with law

enforcement, and Mauro regarded Luna’s wife’s involvement in his life as a

protective factor in helping to reduce his risk of reoffending. Mauro also identified

the education Luna received in prison as a positive risk factor because it will help

him with finding stable employment.

Mauro testified that she had no evidence that Luna’s pedophilic disorder

affects his emotional or volitional capacity such that it predisposes him to commit

a sexually violent offense, and she stated that “[t]he only evidence that there is of

his pedophilic behavior in that seven years [after his guilty pleas] is a self-report

that he had looked at child pornography.”
 SUFFICIENCY OF THE EVIDENCE

In issues one and two, Luna contends that the evidence is legally and

factually insufficient to support the jury’s verdict because Luna “spent seven and a

half years in the free world without committing a sexually violent offense before

his probation was revoked for a nonviolent offense.” Under a 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 a 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 Supp. 2014). 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. 2014). “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).

The jury was entitled to draw reasonable inferences from basic facts to

determine ultimate fact issues, and to resolve conflicts and contradictions in the

evidence by believing all, part, or none of the witnesses’ testimony. In re

Commitment of Barbee, 192 S.W.3d 835, 842 (Tex. App.—Beaumont 2006, no

pet.). “[P]roof of serious difficulty in controlling behavior” is required to civilly

commit a defendant under the SVP Act. Kansas v. Crane, 534 U.S. 407, 413

(2002). Luna’s current difficulty in controlling his behavior can be inferred from

his past behavior, his own testimony, and Dr. Arambula’s 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.). Dr. Arambula’s

opinion that Luna has a behavioral abnormality, as defined by the SVP Act,

necessarily entails a related finding that he has “serious difficulty controlling his

behavior.” See Almaguer, 117 S.W.3d at 505-06; see also In re Commitment of

Browning, 113 S.W.3d 851, 862-63 (Tex. App.—Austin 2003, pet. denied).

In addition to hearing the details of Luna’s offenses, the jury also heard

Luna’s own testimony concerning his viewing of child pornography and his current

sexual thoughts and urges involving sexual activity with young children. In Dr.

Arambula’s opinion, Luna does not know how to control his pedophilic sexual

deviance, Luna’s mood disorder could aggravate Luna’s sexual deviance, and Luna

had made only limited progress in his sex offender treatment. Considering all the

evidence in the light most favorable to the verdict, we conclude the jury could

reasonably find beyond a reasonable doubt that Luna has a behavioral abnormality

that makes him likely to engage in a predatory act of sexual violence. See Mullens,

92 S.W.3d at 887. The record does not reflect a risk of injustice that compels

granting a new trial. See Day, 342 S.W.3d at 213. We overrule issues one and two.
 EVIDENTIARY CHALLENGES

Admission of Exhibit 6

In his third issue, Luna argues that the trial court erred in admitting

Petitioner’s Exhibit 6 because its probative value was outweighed by the danger of

unfair prejudice. Luna’s brief asserts that this exhibit, which disclosed the details

of types of pornography Luna accessed while on deferred adjudication, “served no

purpose but to infuriate the jury against Mr. Luna.”

We review a trial court’s decision concerning the admissibility of evidence

for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998). A trial court abuses its discretion when it acts without

reference to any guiding rules and principles, or if it acts arbitrarily and

unreasonably. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558

(Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). An erroneous admission of evidence that is merely cumulative of

properly admitted evidence is harmless. See Reliance Steel & Aluminum Co. v.

Sevcik, 267 S.W.3d 867, 873 (Tex. 2008). Even if a trial court errs in admitting

evidence, we will reverse the judgment only if the error by the trial court probably

caused the rendition of an improper judgment or probably prevented the appellant

from properly presenting the case on appeal. See Tex. R. App. P. 44.1(a).
 In this case, Luna himself testified that he accessed child pornography while

he was on deferred adjudication, and he admitted he viewed pornography that

depicted children ages two to five years old and that depicted prepubescent

children. In both Dr. Arambula’s and Dr. Mauro’s testimony, they discussed

Luna’s use of child pornography. During the State’s cross-examination of Dr.

Mauro, the following exchange occurred:

[STATE’S ATTORNEY]: And during a treatment session in June of
2007, around June 22nd of 2007, Luna admitted that he had been
viewing Internet pornography; is that correct?

[MAURO]: Yes, he did.

[STATE’S ATTORNEY]: Including child pornography?

[MAURO]: Yes, he said that.

[STATE’S ATTORNEY]: And when you interviewed Mr. Luna, you
asked him about the reasons his probation was revoked?

[MAURO]: Yes.

[STATE’S ATTORNEY]: And he told you that he had been looking
at porn on the Internet?

[MAURO]: Yes, he did.

[STATE’S ATTORNEY]: And you asked him what kind of porn?

[MAURO]: Yes.

[STATE’S ATTORNEY]: And his response was: Group sex, some
young girls that looked maybe 13 or 14?
 [MAURO]: Yes.

The admission of Exhibit 6 into the record was merely cumulative of other

testimony and evidence admitted at trial. Based on the full record before us, we

conclude that the admission of Exhibit 6 probably did not cause the rendition of an

improper judgment. Tex. R. App. P. 44.1(a). We overrule Luna’s third issue on

appeal.

Admission of Expert Testimony

In his fourth issue, Luna asserts that the trial court erred in allowing Dr.

Arambula’s testimony as to information in the records concerning the “graphic

details” of Luna’s crimes and other alleged offenses as basis evidence. Luna also

argues that he was “unable to challenge the accuracy of the basis evidence because

he was not given an opportunity to cross examine these out-of-court declarants.”

Rule 705(a) of the Texas Rules of Evidence provides that an expert may

disclose on direct examination or be required to disclose on cross-examination, the

underlying facts or data on which the expert bases an opinion. See Tex. R. Evid.

705(a); Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 602 (Tex.

App.—Fort Worth 1995, writ denied). Rule 705(d) provides:

When the underlying facts or data would be inadmissible in
evidence, the court shall exclude the underlying facts or data if the
danger that they will be used for a purpose other than as explanation
 or support for the expert’s opinion outweighs their value as
explanation or support or are unfairly prejudicial. If otherwise
inadmissible facts or data are disclosed before the jury, a limiting
instruction by the court shall be given upon request.

Tex. R. Evid. 705(d) (2014)3; see Day, 342 S.W.3d at 198-99.

To preserve error concerning the admission of evidence, a party must timely

object, stating the specific ground of objection, if the specific ground is not

apparent from the context, and obtain a ruling from the court. Tex. R. Evid.

103(a)(1); see also Tex. R. App. P. 33.1(a). To the extent Luna argues on appeal

that Dr. Arambula’s testimony about the details of Luna’s offenses was unfairly

prejudicial, Luna failed to make that objection at trial and he has waived that

objection. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).

During Dr. Arambula’s testimony, the trial court granted Luna a running

objection as to hearsay and the trial court provided the jury with the following

limiting instruction:

THE COURT: The limiting instruction I normally give is that hearsay
normally is not admissible. However, certain hearsay information
contained in records reviewed by experts is allowed into evidence

3
Effective April 1, 2015, the Texas Supreme Court adopted amendments to
the Texas Rules of Evidence. See 78 Tex. B.J. 42 (Tex. 2015). The amendments
were part of a restyling project that may have changed the wording of some of the
evidentiary rules cited in this opinion. Id. at 42. All citations to the rules of
evidence in this opinion refer to the rules as they existed during the trial of this
matter.
 through expert testimony. Such evidence is admitted only for the
purpose of showing the basis of the expert’s opinion.

Luna’s brief argues that this limiting instruction did not make it clear that the basis

testimony should not come in for its truth. We note that the jury charge also

included the following instruction:

Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered to prove the truth of the
matter asserted. Certain hearsay information contained in records
reviewed by the experts was admitted before you through expert
testimony. Such hearsay was admitted only for the purpose of
showing the basis of the experts’ opinion and cannot be considered as
evidence to prove the truth of the matter asserted.

This Court has previously upheld a trial court’s decision to allow an expert

to testify about the details of the underlying offenses when the expert uses the

details as a basis for his opinion. See In re Commitment of Alvarado, No. 09-13-

00217-CV, 2014 Tex. App. LEXIS 3343, at **25-29 (Tex. App.—Beaumont Mar.

27, 2014, pet. denied) (mem. op.); In re Commitment of King, No. 09-13-00255-

CV, 2014 Tex. App. LEXIS 724, **3-7 (Tex. App.—Beaumont Jan. 23, 2014, no

pet.) (mem. op.). Dr. Arambula explained the facts he considered in forming his

opinion and how those facts affected his evaluation. The trial judge could

reasonably conclude the evidence assisted the jury in weighing the testimony. See

In re Commitment of Ramsey, No. 09-14-00304-CV, 2015 Tex. App. LEXIS 2844,

at *23 (Tex. App.—Beaumont Mar. 26, 2015, pet. denied) (mem. op.). The trial
judge could also reasonably conclude the expert’s testimony was not unfairly

prejudicial. See In re Commitment of Ford, No. 09-11-00425-CV, 2012 Tex. App.

LEXIS 2221, at **4-5 (Tex. App.—Beaumont Mar. 22, 2012, no pet.) (mem. op.);

Day, 342 S.W.3d at 199. Nevertheless, as noted earlier, the trial court provided the

jury with a limiting instruction. We presume the jury followed the trial court’s

limiting instruction and the jury charge. See Golden Eagle Archery, Inc. v.

Jackson, 116 S.W.3d 757, 771 (Tex. 2003); Day, 342 S.W.3d at 199. On this

record, we cannot conclude that the trial court erred in overruling the objection or

that the trial court’s limiting instruction combined with the instruction within the

jury charge was insufficient. We overrule Luna’s fourth issue.

Admission of Treatment Provider’s Testimony

In his fifth issue, Luna argues that the trial court erred in allowing testimony

of Luna’s treatment provider, Joseph Brown. In particular, Luna argues that Brown

only testified as to Luna’s sex offender treatment program, and because Brown’s

testimony did not address whether Luna had a behavioral abnormality, the trial

court should have struck the testimony because it was not helpful and it was more

prejudicial than probative. At the conclusion of Brown’s testimony, Luna moved to

strike the testimony on the “grounds of Texas Rules of Evidence 701 and 702, and

that is, it is not helpful to determine the fact at issue[,]” and also on the grounds
that it was more prejudicial than probative. The trial court overruled the motion to

strike and the objections.

At trial, Luna testified that he was not going to be able to complete his

current sex offender treatment within the nine-month time period and that he had

not successfully presented his sex offense synopsis in treatment as required. Luna

also admitted that he had received some write-ups in connection with his treatment

for missing group sessions. Dr. Arambula testified regarding Luna’s treatment,

concluding that “he’s been slow in getting his assignments done, his insight is not

great, sometimes there are struggles with how much he’s revealing in group. So it

hasn’t been real positive yet.” Even if the trial court erred in admitting Brown’s

testimony, his testimony was cumulative of other testimony properly admitted at

trial and therefore harmless. See Reliance Steel, 267 S.W.3d at 873. Based on the

record before us, we conclude that the admission of Brown’s testimony probably

did not cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a). We

overrule Luna’s fifth issue on appeal. We affirm the trial court’s judgment.

AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on May 21, 2015
Opinion Delivered October 15, 2015

Before McKeithen, C.J., Horton, and Johnson, JJ.