Opinion
NO. 09-11-00449-CV
09-06-2012
IN RE COMMITMENT OF NATHAN LYNN ALLEN
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-10-11906-CV
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit Nathan Lynn Allen as a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). A jury found Allen suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id. § 841.003. The trial court entered final judgment and an order of civil commitment under the Act. We affirm the judgment of the trial court.
Nathan Lynn Allen is also known as Nathaniel Lynn Allen.
In two issues, Allen complains on appeal that the trial court erred in admitting testimony by one of the State's experts regarding the details of Allen's convictions. Specifically, in his first issue, Allen argues that the trial court erred in allowing the State's expert, Dr. Antoinette McGarrahan, a forensic psychologist, to testify regarding the details of his offenses because the testimony was hearsay and because the prejudicial nature of the testimony outweighed its probative value. In his second issue, Allen contends the trial court abused its discretion in admitting McGarrahan's testimony regarding the details of his offenses because it was cumulative and repetitive.
At trial, McGarrahan explained to the jury the process she goes through in conducting an evaluation to determine whether an individual has a behavioral abnormality as defined by the statute. She explained what records she typically reviews and testified these were records typically relied on by experts in her field conducting these types of evaluations. McGarrahan explained that she relied on facts and data in the records she reviewed in forming her opinion in this case. McGarrahan also explained why records regarding Allen's past behavior were important in helping the jury determine whether he suffers from a behavioral abnormality. McGarrahan stated that records regarding past behavior provide information regarding patterns of behavior, help pinpoint factors that were relevant in Allen's offending, and aid in the determination of whether those factors are still present. When the State elicited testimony from McGarrahan regarding the details of Allen's offenses, defense counsel objected that it constituted hearsay, was cumulative, and the prejudicial nature of the testimony outweighed its probative value. The trial court overruled the objection, and defense counsel asked for a limiting instruction. The trial court instructed the jury as follows: "[h]earsay information contained in records reviewed by experts is allowed into evidence through expert testimony. Such evidence is admitted only for the purposes - purpose of showing the basis of the expert's opinion. Okay." Thereafter, McGarrahan testified from the records regarding the pertinent facts she considered from Allen's 1992 offenses and his 1999 offense in forming her opinion. At the conclusion of her direct examination, McGarrahan opined that Allen suffers from a behavioral abnormality as defined by the statute.
The admission of evidence is reviewed under an abuse of discretion standard. In re Commitment of Salazar, No. 09-07-345 CV, 2008 WL 4998273, at *2 (Tex. App.— Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A judgment will not be reversed based on the admission of evidence unless the appellant establishes that the trial court's ruling was in error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Id.; see also Tex. R. App. P. 44.1. Under Rule 705 of the Texas Rules of Evidence, an expert may disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data on which she bases her opinion. Tex. R. Evid. 705(a); In re Commitment of Yaw, No. 09-08-042 CV, 2008 WL 5096511, at *1 (Tex. App.—Beaumont Dec. 4, 2008, no pet.) (mem. op.). Rule 705(d) provides as follows:
(d) Balancing test; limiting instructions. 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 asTex. R. Evid. 705(d). "When an expert relies upon hearsay in forming his opinion, and it is of a type reasonably relied upon by such experts, the jury is generally permitted to hear it." Salazar, 2008 WL 4998273, at *4. Inadmissible evidence relied upon by an expert should be excluded only if the danger that it will be used for some purpose other than explanation or support for the expert's opinion, outweighs its value as explanation or support or is unfairly prejudicial. Tex. R. Evid. 705(d); see also In re Commitment of Wilson, No. 09-08-00043-CV, 2009 WL 2616921, at *9 (Tex. App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.); Salazar, 2008 WL 4998273, at *4. The rule also states that if otherwise inadmissible evidence is disclosed to the jury, the court must give the jury a limiting instruction upon request. Tex. R. Evid. 705(d).
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.
McGarrahan explained that Allen's past behavior was relevant to her assessment of whether Allen has a behavioral abnormality. Additionally, McGarrahan testified that information contained in the records relating to past behavior is generally relied upon by experts in her field in making these types of determinations. The only unequivocal testimony regarding the facts related to Allen's offenses came from McGarrahan. When asked about the details of his offenses, Allen only recalled events leading up to and following the offenses. According to Allen, he was intoxicated on both occasions and had no recollection of most of the details regarding his sexual offenses. Additionally, other than to discuss the age range of the victims and the fact that Allen fled the scene after each offense, the State's other expert witness did not testify regarding the details of Allen's sexual offenses. Therefore, McGarrahan's testimony regarding Allen's offenses was not cumulative or repetitive.
At Allen's request, the trial court gave the jury a limiting instruction informing them that the hearsay information contained in the records reviewed by McGarrahan was only allowed to show the basis of her opinion. In addition, the jury charge included a limiting instruction virtually identical to that provided by the trial court during trial. Allen argues that the trial court's limiting instruction was insufficient to cure the prejudice that resulted from the testimony and that the trial court failed to perform a balancing test under Rule 705(d). Allen cites no authority in support of his contention that the limiting instruction was insufficient to cure any harm done by admitting the testimony. Allen did not object to the court's instruction, nor did he request a different or additional instruction at the time the trial court gave the instruction. See Yaw, 2008 WL 5096511, at *3 (citing Depena v. State, 148 S.W.3d 461, 470 n. 10 (Tex. App.—Corpus Christi 2004, no pet.) (suggested limiting instruction in criminal cases)); see also In re Commitment of Reed, No. 09-11-00484-CV, 2012 WL 1072255, at *2 (Tex. App.— Beaumont Mar. 29, 2012, no pet.) (mem. op.). Further, Allen did not object to the limiting instruction contained in the jury charge. "We presume the jury followed the court's limiting instruction." Yaw, 2008 WL 5096511, at *3 (citing Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex. 1982)).
The limiting instruction contained in the jury charged stated, "Furthermore, certain hearsay information contained in records reviewed by the experts was admitted into evidence through expert testimony. Such evidence was admitted only for the purpose of showing the basis of the experts' opinion."
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Allen did not object to McGarrahan's testimony on the basis that the details of the underlying offenses and resulting convictions provided an insufficient basis for McGarrahan's opinion. Additionally, we note that the details regarding the offenses provided by McGarrahan during her testimony were minimal. On this record, we conclude the trial court acted within its discretion in concluding that the underlying facts or data were not unfairly prejudicial, and that the danger of improper use did not outweigh their value as explanation or support for McGarrahan's opinion. See Tex. R. Evid. 705(d). Moreover, we cannot conclude the trial court erred in allowing disclosure of the underlying facts or data, or that the limiting instruction was insufficient to cure any possible prejudicial effect of the details of the offenses. See id. Nor can we conclude that the trial court's overruling Allen's objections was in error or that such error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1.
We overrule issues one and two. Having overruled all of Allen's appellate issues, we affirm the judgment of the trial court.
AFFIRMED.
________
CHARLES KREGER
Justice
Before McKeithen, C.J., Kreger and Horton, JJ.