in Re the Commitment of Gregory Dee Green

NUMBER 13-20-00082-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE THE COMMITMENT OF GREGORY DEE GREEN

On appeal from the 54th District Court
of McLennan County, Texas.

MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina

A jury found appellant Gregory Dee Green to be a sexually violent predator (SVP).

See TEX. HEALTH & SAFETY CODE ANN. ch. 841 (SVP Act). The trial court signed a final

judgment and an order of civil commitment. See id. § 841.081. By three issues, Green

argues that the evidence is legally and factually insufficient to support the “behavior

abnormality” element of the State’s case (issues one and two), and the trial court

erroneously allowed a testifying expert to testify about a non-testifying expert’s out-of-

court opinion (issue three). We affirm.
 I. BACKGROUND1

Green was incarcerated in the Texas Department of Criminal Justice (TDCJ)

serving two fifteen-year sentences for sexual assault of a child. On August 20, 2018, while

incarcerated, the State filed its petition to have Green declared an SVP under the SVP

Act, alleging that Green was a repeat sexually violent offender who suffers from a

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

violence.

At trial on October 22, 2019, Clinical Psychologist Antoinette R. McGarrahan,

PhD., testified that she specializes in forensic psychology and neuropsychology. She

evaluated Green for a behavioral abnormality, and based on her education, training, and

principles of forensic psychology, it is her expert opinion that Green suffers from a

behavioral abnormality that makes him likely to engage in another predatory act of sexual

violence. McGarrahan explained that a behavioral abnormality is “a congenital or acquired

condition” that affects the “person’s emotional or volitional capacity” and “predisposes the

person to commit a sexually violent offense” “to the extent that the person becomes a

menace to the health and safety of another person.” She has performed this type of

evaluation for about seventeen years. To conduct this type of evaluation, McGarrahan

reviewed Green’s records, evaluated Green face-to-face, conducted a clinical review,

gathered background information, and utilized different actuarial instruments and

psychopathy assessments. She also reviewed several thousand pages of records

1 This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of
the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate
courts); 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to
another any time that there is “good cause” for the transfer).
2
regarding Green’s previous imprisonments, such as classification records, medical

records, disciplinary records, records from the Board of Parole, indictments, convictions,

judgments, sentences, witness statements, police reports, victim statements, arrest

reports, sex offender registry records, Green’s deposition, victim interviews, and an

evaluation by a multidisciplinary team doctor, among others.

In making her determination that Green has a behavior abnormality, McGarrahan

looked to risk factors and protective factors that indicate how likely a person is to reoffend

in the future. According to McGarrahan, she utilized a diagnostic and statistical manual

to determine that Green “has a very, very large number of risk factors. He has more than

I’ve seen in any other case I’ve had.” For example, she opined that Green has an ongoing

sexual deviancy, he has an antisocial personality disorder, displays repeated problems

following the rules of society, has difficulty with authority figures, and he is a prototypical

psychopath.

McGarrahan stated that as a young adolescent, Green acted in a sexually deviant

manner that continued while he was incarcerated in high structured environments such

as the Texas Youth Commission (TYC) and the TDCJ because he has been repeatedly

charged with—and repeatedly convicted of—sexual offenses. McGarrahan stated that in

scoring the actuarial measures and in assessing the risk factors, it was standard

procedure and methodology to look at the details and the facts underlying Green’s

charges and convictions as well as to consider the allegations of other sexual offenses

that did not necessarily lead to a conviction.

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 McGarrahan considered a previous aggravated sexual assault of an eight-year-old

child committed by Green when he was thirteen years old and living in a foster placement.

According to the reports, the child and Green were unrelated. McGarrahan reviewed a

psychological evaluation from a psychologist. At the time of the offense, Green provided

“pretty detailed information about what occurred during that crime and assault of [the

child].” Green admitted that he found it arousing that the child had confided in him that he

had been sexually assaulted at a prior placement. Green indicated he then made the child

lie face down on the bed, penetrated the child’s anus with his penis until he ejaculated,

and used a pillow to muffle the child’s moans and cries of pain. Green wanted to do it

again, but the foster staff came, intervened, and subsequently moved Green to another

location. Green was given community supervision for this offense, but he did not

successfully complete it: he did not attend school regularly; he failed to attend sex-

offender treatment; he was suspended from school; and he violated curfew, among other

things.

Once Green’s probation was revoked, he was placed in the TYC where he was

convicted of two more sexual offenses. The records indicated that Green was nineteen

years old and one of the victims, Manuel, was sixteen years old. According to the court-

related records, after Manuel caught Green masturbating in a closet, Green punched him

in the stomach, grabbed his neck, bent him over a sink, and forced anal sex on him. On

at least one other occasion, Green digitally penetrated Manuel’s anus with his finger.

Another sixteen-year-old, Kevin, housed at the TYC claimed that Green kept

asking him for anal sex, but Kevin kept refusing. Green threatened to beat up Kevin and

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threatened to engage the whole dorm in a gang fight if Kevin did not allow Green to anally

penetrate him.

When Green was released, he was subsequently charged with indecency by

exposure against Sara, the fifteen-year-old sister of Green’s girlfriend at the time. This

was significant to McGarrahan’s assessment because Sara was a stranger to Green, and

he had never met her before the incident, which McGarrahan believes raises his risk to

engage in another sexual offense. Sara was babysitting children when Green came into

the room and demanded anal sex. When Sara threatened to call the police, Green

explicitly threatened her with a gun. Family members arrived and stopped the incident.

McGarrahan testified that when she discussed the aggravated sexual assault of

the eight-year-old child with Green, Green denied penetration and stated he climbed into

bed with the child only to “get comfort with him.” When McGarrahan discussed the

offenses against Manuel with Green, he claimed they were consensual. As to the incident

with Kevin, McGarrahan opined that Green’s behavior with Kevin is known as

“persistence after punishment” because Green’s impulsive behavior continues and

persists after he has been punished. According to McGarrahan, Green indicated that Sara

made sexual advances, and he turned her down. McGarrahan testified that this encounter

demonstrates Green’s emotional and volitional capacity—his sexual deviancy relates to

his ability to regulate how he interacts with others and his expression of emotion,

particularly with impulse.

In conducting her evaluation, McGarrahan also considered at least twenty-two

documented disciplinary reports labeled as “sexual misconduct” while Green was

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incarcerated again at TDCJ. For instance, an inmate reported that Green put a metal

shank to his neck and said, “I want some of that.” The report states that Green proceeded

to pull down the inmate’s pants, penetrated the inmate for about three minutes,

ejaculated, then threatened to kill the inmate if the inmate told anybody. While Green

denied most of the sexual misconduct disciplinaries, he admitted to McGarrahan that he

manipulates the system to get what he wants. According to McGarrahan, Green’s

inclination to cope with a difficult situation in a sexual and violent manner is called

“sexualized coping.” A discipline report shows that as recently as September 2019, Green

was disciplined for threatening to inflict harm on staff, fighting with a weapon against

another inmate, and what McGarrahan described as “some other minor stuff.”

McGarrahan employed the Psychopathy Checklist-Revised, an assessment tool

typically used by psychologists, to gauge Green’s level of psychopathy. The highest score

is a forty; Green scored a 38.8. Based on this score, McGarrahan stated Green “has an

extremely high number of psychopathic personality characteristics” with respect to

psychopathy.

McGarrahan also scored Green on the Static-99, which she testified is an actuarial

instrument to estimate the risk of being convicted for a sexual offense in the future. Green

scored an eleven out of a possible twelve. 2 In fact, Green was the first individual

McGarrahan had ever seen in the double digits: the score put Green “at the ninety-nine,

point, ninety-ninth percentile”; according to McGarrahan, “nobody can score higher . . . .”

2 Green did not meet the criteria for the last factor because McGarrahan stated that he had not
“been out in the free world long enough to live with a lover for more than two years.”
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 Green testified. He admitted that he did not complete sex offender treatment. He

stated that he acts out violently when he feels unsafe, and he testified about specific

additional encounters of violence he inflicted against family members, prison employees,

and inmates, including creating weapons and using them against correctional officers.

For these acts, he spent six years in administrative segregation. Green admitted that he

has attempted several treatment programs but has been unable to successfully complete

them because of his behavioral tendencies. He admitted to amassing over twenty-two

disciplinaries for sexual misconduct in the prison system.

After hearing the evidence, including Green’s testimony, the jury unanimously

found that Green is an SVP. Green now appeals.

II. SUFFICIENCY OF THE EVIDENCE

A. Sexually Violent Predator

The SVP Act provides a procedure for the involuntary civil commitment of an SVP.

See id. §§ 841.001–.153. The SVP Act was enacted based on legislative findings that “a

small but extremely dangerous group of [SVPs] exists” and that “those predators have a

behavioral abnormality that is not amenable to traditional mental illness treatment

modalities and that makes the predators likely to engage in repeated predatory acts of

sexual violence.” Id. § 841.001; see Kansas v. Crane, 534 U.S. 407, 413 (2002) (holding

that a similar statute satisfies constitutional due process only when there is “proof of

serious difficulty in controlling behavior”).

Under the SVP Act, a person may be civilly committed if the factfinder determines

by a unanimous verdict and beyond a reasonable doubt that the person is an SVP. See

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TEX. HEALTH & SAFETY CODE ANN. §§ 841.062, 841.081. An SVP is defined as a person

that (1) is a “repeat sexually violent offender,” and (2) “suffers from a behavioral

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

§ 841.003(a). A person is a “repeat sexually violent offender” if the person is convicted of

more than one “sexually violent offense” and a sentence is imposed on at least one of

those convictions. Id. § 841.003(b). A behavioral abnormality is “a congenital or acquired

condition that, by affecting a person’s emotional or volitional capacity, predisposes the

person to commit a sexually violent offense, to the extent that the person becomes a

menace to the health and safety of another person.” Id. § 841.002(2).

B. Standard of Review

A commitment proceeding under the SVP Act is the unusual civil case

incorporating the “beyond a reasonable doubt” burden of proof typically reserved for

criminal cases. In re Commitment of Fisher, 164 S.W.3d 637, 639–41 (Tex. 2005). The

standard for conducting evidentiary-sufficiency reviews on appeal with respect to these

cases involves an intermediate “clear and convincing” burden. In re Commitment of

Stoddard, 619 S.W.3d 665, 674 (Tex. 2020). “A legal-sufficiency review of a finding that

must be proven by clear and convincing evidence requires that the court review the

evidence in the light most favorable to the finding to determine whether a reasonable

factfinder could form a firm belief or conviction that the finding was true.” Id. The court

must: (1) “assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so,” (2) “disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible,” and (3) “may not disregard

8
undisputed facts that do not support the finding.” Id. (citing In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002)).

“By contrast, a factual-sufficiency review is premised on consideration of the entire

record.” Id. We must determine whether, considering the entire record, that evidence “is

so significant that a factfinder could not reasonably have formed a firm belief or conviction”

that the finding was true. Id. The Texas Supreme Court has stated:

We hold that a properly conducted factual-sufficiency review in an SVP case
requires the court of appeals to determine whether, on the entire record, a
reasonable factfinder could find beyond a reasonable doubt that the
defendant is an SVP. In so doing, the appellate court may not usurp the
jury’s role of determining the credibility of witnesses and the weight to be
given their testimony, and the court must presume that the factfinder
resolved disputed evidence in favor of the finding if a reasonable factfinder
could do so. If the remaining evidence contrary to the finding is so significant
in light of the entire record that the factfinder could not have determined
beyond a reasonable doubt that its finding was true, the evidence is factually
insufficient to support the verdict.

Id. at 668.

C. Discussion

Green does not challenge the first prong of the SVP Act that he is a repeat sexually

violent offender. By his first issue, Green challenges the legal sufficiency of the evidence

supporting the jury’s finding that he has a behavioral abnormality. Specifically, Green

argues that his past sexual history cannot reasonably support an inference or an

adequate basis to support an expert opinion that he meets the legislatively intended

definition of “behavioral abnormality.” By his second issue, Green challenges the factual

sufficiency of the evidence supporting the jury’s finding that he is an SVP “based on

uncharged and unproven offenses that amount to little more than rumor, innuendo[,] and

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speculation . . . .”

1. Legal Sufficiency

Green contends that he does not meet Chapter 841’s definition of “behavior

abnormality” because it applies to only “one small group of extremely dangerous sexually

violent predators,” and Green “is nothing more than just a potentially ‘dangerous but

typical recidivist.’” He asserts that because the number of sexually violent offenses he

“has committed over his lifetime can be counted on the fingers of one hand,” he does not

meet the definition of “behavioral abnormality” that Chapter 841 was meant to address.

However, in a civil commitment case, the State does not need to prove that Green

is a member of a “small but extremely dangerous group of sexually violent predators” or

that Green is not just a “dangerous but typical recidivist.” See Stoddard, 619 S.W.3d at

677 (“This ‘small but extremely dangerous group’ language, contained in the Act’s

legislative findings, is not part of the statute’s definition of ‘sexually violent predator’ and

was not an element the jury was required to find.”). Instead, the State only needs to prove

beyond a reasonable doubt that Green is an SVP. See TEX. HEALTH & SAFETY CODE ANN.

§ 841.062(a). Thus, the State need not compare Green “to other adjudicated SVPs with

predicate offenses and criminal histories that were sustained and [more] egregious” than

Green’s acts because “that is simply not what the Act requires.” Stoddard, 619 S.W.3d at

678.

Here, McGarrahan specifically defined “behavior abnormality,” and she explained

how the statutory definition applied to Green. She testified regarding all the resources she

consulted in forming her opinions including criminal records, court records, witness

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statements, Green’s testimony, her use of actuarial tests, the many factors she assessed

in making her determination, and her interview with Green. She then discussed the

various risk factors she considered and how those factors affected her overall conclusion

regarding Green’s likelihood to commit another predatory act of sexual violence. In fact,

she stated that Green has more risk factors than any other person she has evaluated

throughout her career, and she reiterated that all his disorders were chronic and

warranted a significant amount of treatment. She opined that Green suffers from a

behavior abnormality that predisposes him to committing sexually violent offenses.

There was no testimony to refute her opinion. Although Green testified at trial, he

did not offer an opinion as to whether he possessed a behavior abnormality. Assessing

the evidence in the light most favorable to the verdict, we conclude there was more than

a scintilla of evidence to support the jury’s finding beyond a reasonable doubt that Green

is an SVP. See In re Commitment of Short, 521 S.W.3d 908, 911 (Tex. App.—Fort Worth

2017, no pet.). We overrule Green’s first issue.

2. Factual Sufficiency

Green challenges the factual sufficiency of the evidence in one sentence: “[I]t

would be clearly unjust to permit the judgment to stand when it is critically based on

uncharged and unproven offenses that amount to little more than rumor, innuendo[,] and

speculation under the reasoning of [a] New York Court of Appeals’ decision . . . .”

However, the decisions of the New York Court of Appeals are not binding on Texas courts;

we do not adhere to the laws or reasoning of the courts of New York. See Penrod Drilling

Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (providing that Texas courts “are

11
obligated to follow only higher Texas courts and the United States Supreme Court”).

Nonetheless, the jury heard McGarrahan explain the bases for her conclusion that

Green was likely to reoffend, including, but not limited to, his history of committing violent

and sexual crimes against numerous victims, many of whom were strangers to Green.

She detailed the risk factors evidenced by those offenses as well as the actions and

statements of Green that supported her diagnosis:

I gave him an unspecified paraphilia, antisocial personality disorder with
significant psychopathic personality traits, and then he has a history of a
whole host of childhood problems such as conduct disorder, oppositional
defiance disorder, ADHD, post-traumatic stress disorder, and learning
disabilities.

McGarrahan explained that paraphilia is a chronic condition that warrants a significant

amount of treatment. She further explained that individuals with antisocial personality

disorder are often in trouble with the law despite the consequences because they’re

impulsive, they’re irresponsible, they repeatedly engage in behavior that gets them

arrested, and they violate the rights of others. According to McGarrahan, this is a chronic

and persistent disorder.

McGarrahan also testified regarding how each of the risk factors increased Green’s

likelihood of committing violent sexual offenses in the future and how those factors

supported her opinion that Green has a behavioral abnormality that makes him likely to

commit predatory acts of sexual violence. For example, Green has repeatedly used

violence to force other individuals to engage in sexual activity. Green admitted that he

complained to the medical staff at TDCJ that he has a compulsion to repeatedly

masturbate. McGarrahan assessed Green’s prior convictions for sex offenses, as well

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allegations that did not result in a criminal conviction. She additionally assessed the

multiple infractions he received while incarcerated in TYC and TDCJ. Aside from Green’s

sexually violent behaviors, McGarrahan also explained that Green’s nonsexual violent

behaviors make it more likely he will commit a predatory act of sexual violence.

Furthermore, although Green repeatedly gave significantly different accounts of

what transpired, McGarrahan opined that Green was a pathological liar, another

characteristic of being a psychopath. See In re Commitment of Stoddard, 619 S.W.3d at

668 (providing that in a factual sufficiency review, we may not substitute our judgment for

that of the jury, which is the sole judge of the credibility and the weight to be given to

witnesses’ testimony). It was the jury’s province to weigh this evidence, judge the

credibility of the witnesses’ testimony, and to resolve any conflicts in the evidence. See

In re Commitment of Williams, 539 S.W.3d 429, 446 (Tex. App.—Houston [1st Dist.] 2017,

no pet.). The jury was also free to believe all, part, or none of a witness’s testimony. In re

Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet. denied).

Having reviewed the entire record, including undisputed evidence contrary to the

verdict, we determine that the factfinder could find beyond a reasonable doubt that Green

is an SVP. See In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied) (“[T]he possibility that the evidence in a particular case will be legally

sufficient but factually insufficient essentially decreases as the burden of proof

increases.”). We therefore conclude that the State presented factually sufficient evidence

that Green was likely to reoffend and commit a predatory act of sexual violence. See TEX.

HEALTH & SAFETY CODE ANN. § 841.003(a). We overrule Green’s second issue.

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 III. HEARSAY

By his third issue, Green argues the trial court reversibly erred by overruling his

hearsay objection to McGarrahan’s testimony of a non-testifying expert’s finding that

Green has a behavioral abnormality.

A. Standard of Review & Applicable Law

We review the trial court’s ruling on evidentiary matters for an abuse of discretion.

See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014); In re Commitment

of Mares, 521 S.W.3d 64, 69 (Tex. App.—San Antonio 2017, pet. denied). An abuse of

discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made

without regard for guiding legal principles. Ford Motor Co. v. Garcia, 363 S.W.3d 573,

578 (Tex. 2012).

Hearsay is an out of court statement used to prove the truth of the matter asserted.

TEX. R. EVID. 801. Hearsay is generally not permitted in trial, except as otherwise allowed

under the Texas Rules of Evidence or by statute. Id. R. 802. The rules of evidence provide

that “[a]n expert may base an opinion on facts or data in the case that the expert has been

made aware of, reviewed, or personally observed.” Id. R. 703. “If experts in the particular

field would reasonably rely on those kinds of facts or data in forming an opinion on the

subject, they need not be admissible for the opinion to be admitted.” Id. That said, “[a]n

expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient

basis for the opinion.” Id. R. 705(c). And “[i]f the underlying facts or data would otherwise

be inadmissible, the proponent of the opinion may not disclose them to the jury if their

probative value in helping the jury evaluate the opinion is outweighed by their prejudicial

14
effect.” Id. R. 705(d). “If the court allows the proponent to disclose those facts or data the

court must, upon timely request, restrict the evidence to its proper scope and instruct the

jury accordingly.” Id.

B. Discussion

1. Out-of-Court Expert Opinion

During McGarrahan’s testimony, the following exchange occurred:

[State]: Okay. Did you review and rely on a report for—from
that multidisciplinary team doctor in Mr. Green’s case?

[McGarrahan]: Yes, I did.

[State]: And who was the doctor on that case?

[McGarrahan]: Dr. Turner.

[State]: And is it standard practice in these types of cases to
review and rely upon that multidisciplinary
psychologist’s report?

[McGarrahan]: Yes.

[State]: And I guess if you were called [sic]—when was Dr.
Turner’s evaluation of Mr. Green for a behavioral
abnormality?

[McGarrahan]: I believe in May.

[Green]: Objection, Your Honor, hearsay.

THE COURT: Sustained.

....

THE COURT: Ladies and Gentlemen, before we proceed any further,
I have an instruction I need to give you regarding
evidentiary matters. This witness who is an expert
witness has testified and is going to be testifying
regarding what we call “hearsay.” I know you’ve all

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 heard that term before. Hearsay is a statement made
by someone at some time other than while they’re
testifying in the present hearing. That is when a party
offers into evidence to prove the truth of the matter in
the statement, and this may not make any sense to
you, but it’s legally the way we have to do this.

Generally, hearsay is not admissible as evidence
during a trial. However, in this case . . . certain hearsay
information contained in records that you’ve heard a
little bit about was reviewed and relied upon by experts
and will be presented to you through this expert's
testimony.

Such hearsay evidence is being presented to—to you
only for the purpose of showing the basis of this
expert’s opinion and cannot be considered as evidence
to prove the truth of the matter asserted. You may not
consider this hearsay information for any other
purpose, including whether the facts alleged in the
records that we’re talking about are true. You may
proceed.

[State]: Thank you, Your Honor.

[State]: So, Dr. McGarrahan, when was Dr. Turner’s behavioral
abnormality evaluation of Mr. Green?

[McGarrahan]: In May, of 2018.

[State]: And what was Dr. Turner’s opinion as to whether or not
Mr. Green suffers from a behavioral abnormality?

[McGarrahan]: Dr. Turner made the opinion that Mr. Green does suffer
from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence.

Green argues that McGarrahan’s testimony should not have been admitted under

Texas Rule of Evidence 705(d) because McGarrahan “did not rely (or even testify that

she relied) on Turner’s out-of-court opinion ‘in forming an opinion on the subject’ that Mr.

Green has a behavior abnormality.” However, as set forth in the exchange above,

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McGarrahan explicitly acknowledged that she reviewed and relied on Turner’s report and

findings. She further explained that it was standard practice to review those types of

reports in these cases. See id. R. 703. Thus, the trial court could have reasonably

determined that McGarrahan based her opinion and testimony, at least in part, on

Turner’s report. See id.; In re Commitment of Burd, 612 S.W.3d 450, 461–63 (Tex. App.—

Houston [1st Dist.] 2020, no pet.); In re Commitment of Winkle, 434 S.W.3d 300, 315

(Tex. App.—Beaumont 2014, pet. denied); see also In re Commitment of Resto, No. 13-

19-00300-CV, 2021 WL 376887, *1 (Tex. App.—Corpus Christi–Edinburg Feb. 4, 2021,

no pet.) (mem. op.) (concluding that the trial court did not abuse its discretion in allowing

the expert to testify that she relied on an out-of-court’s expert’s report in forming her

conclusion).

2. Prejudicial Effect

Next, Green argues that the probative value of McGarrahan’s statement was

outweighed by its prejudicial effect. We disagree.

“Regarding any prejudicial effect that may have resulted from the basis testimony,

this effect was mitigated by the trial court’s limiting instruction, which explained the

evidence’s scope and purpose.” In re Commitment of Johnson, 613 S.W.3d 613, 618

(Tex. App.—San Antonio 2020, pet. denied). Here, the trial court specifically instructed

the jury at the time of the testimony and outlined it again in the jury charge that the mention

of Dr. Turner’s report was meant “only for the purpose of showing the basis of

[McGarrahan’s] opinion and cannot be considered as evidence to prove the truth of the

matter asserted.” In the absence of evidence to the contrary, we presume the jury followed

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the court’s limiting instruction.3 See id.

Under these circumstances, we cannot agree that the evidence was so unfairly

prejudicial as to substantially outweigh its probative value. We conclude the trial court

acted within its discretion in determining that McGarrahan’s testimony regarding the non-

testifying psychologist’s opinion was admissible under the rules of evidence. See TEX. R.

EVID. 703, 705. Green’s third issue is overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA
Justice

Delivered and filed on the
23rd day of November, 2021.

3 We note that Green supplied the trial court with the limiting instruction, and he did not object to
the limiting instruction provided in the jury charge.
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