STEVE McKEITHEN

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause No. 11-06-07027 CV

MEMORANDUM OPINION

The State of Texas filed a petition to commit Thomas B. Matlock as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). After a jury found that Matlock is a sexually violent predator, the trial court rendered a final judgment and an order of civil commitment. In three appellate issues, Matlock challenges evidentiary rulings made by the trial court. We affirm the trial court's judgment.

"We review a trial court's evidentiary rulings for abuse of discretion." Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re Commitment of Salazar, No. 09-07-345 CV, 2008 Tex. App. LEXIS 8856, at *19 (Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). Error may not be predicated upon a ruling which excludes evidence unless the party's substantial rights are affected. Tex. R. Evid. 103(a). We will not reverse a judgment based on an error of law unless that error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a).

In issue one, Matlock challenges the trial court's denial of his motion to strike the testimony of Dr. Antoinette McGarrahan. During the State's case in chief, McGarrahan testified that the SVP statute defines a behavioral abnormality as "'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.'" She opined that Matlock has a behavioral abnormality based on his sexual deviance, pedophilia, "psychopathic and antisocial attitudes[,]" "willingness to violate the rights of others without regard for the victims or even regard [for] the consequences to himself[,]" risk factors, and substance abuse. On cross-examination, Matlock's counsel asked McGarrahan whether a person can have a behavioral abnormality and not be likely to commit a predatory act of sexual violence, to which McGarrahan replied "No." The following exchange ensued:

Counsel: So if someone has a behavioral abnormality, that makes them automatically likely to commit predatory acts of sexual violence?
McGarrahan: According to the statute, if they have a behavioral abnormality, that makes them likely to engage in predatory acts of sexual violence.
Counsel: Okay. But the key term in there, Doctor - "that makes him likely to commit a predatory act of sexual violence"; is that right?
McGarrahan: What do you mean by "key term"?
Counsel: That he has a behavioral abnormality that makes him likely to commit predatory acts of sexual violence; is that correct?
McGarrahan: Yes. That's how the law reads.
Counsel: That's how the statute reads on that part, right?
McGarrahan: That's how the law reads, yes.

During an offer of proof, Matlock's counsel questioned McGarrahan about sections of the SVP statute that discuss when a behavioral abnormality changes such that the person is no longer likely to engage in predatory acts of sexual violence and McGarrahan agreed that these sections address changes in a behavioral abnormality. According to Matlock, portions of the SVP statute contradict the assumption that someone is automatically likely to commit predatory acts of sexual violence if that person has a behavioral abnormality. Matlock argued that McGarrahan misunderstood the SVP statute and he moved to strike McGarrahan's testimony. The trial court denied Matlock's motion to strike.

On appeal, Matlock argues that McGarrahan's testimony should have been stricken because she misunderstands the statute. Matlock urges an interpretation of the statute expressly rejected by the Texas Supreme Court in In re Commitment of Bohannan, No. 10-0605, 2012 Tex. LEXIS 734 (Tex. Aug. 31, 2012) (not yet released for publication). Matlock attacks the reliability of McGarrahan's testimony for merging concepts of behavioral abnormality and propensity to recidivate, but "whether a person 'suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence' is a single, unified issue." Bohannan, 2012 Tex. LEXIS at **16-17 (footnote omitted).

During closing arguments, the State explained that the question for the jury was whether Matlock has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence and argued that the evidence supports such a finding. In its charge, the trial court's definitions of "sexually violent predator" and "behavioral abnormality" tracked the SVP statute. See Tex. Health & Safety Code Ann. § 841.002(2) (West Supp. 2012); Id. § 841.003(a) (West 2010). These instructions are consistent with the Supreme Court's Bohannan decision, and we presume the jury followed the trial court's instructions. See Bohannan, 2012 Tex. LEXIS at **14-17; Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003). The trial court did not err in denying Matlock's motion to strike McGarrahan's testimony. We overrule issue one.

In issue two, Matlock contends that the trial court abused its discretion by overruling his relevancy objections to evidence of unreported sexual assaults. During cross-examination of Dr. Walter Quijano, Matlock's expert witness, the State elicited testimony that Matlock has three convictions for sexually violent offenses. The State asked Quijano whether he agreed that "there's a lot of underreporting of sex offenses[,]" to which Quijano stated, "That's true." The following exchange then occurred:

State: And there are a lot of victims of sex offenses -- a lot of victims --
Matlock's Counsel: Objection, Your Honor. Relevance.
Trial Court: He hasn't got the whole question out yet. Let him get the whole question out first.
State: There are a lot more victims of sex offenses than get reported? Matlock's Counsel: Objection, relevance.
Trial Court: Overruled.
Quijano: That's true. There are many offenses that aren't reported.

On appeal, Matlock contends that this evidence allowed the jury to make the improper inference that there are other sexual offenses that were not reported and for which Matlock was not prosecuted. As the record demonstrates, testimony regarding the underreporting of sexual offenses was initially admitted without objection. Because Matlock did not object at the earliest opportunity, he has failed to preserve this issue for appellate review. See Tex. R. App. P. 33.1(a); see also Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 152 (Tex. App.—Amarillo 2001, pet. denied) (op. on reh'g) (An objection is timely when asserted at the earliest opportunity or when the potential error becomes apparent.). We overrule issue two.

In issue three, Matlock contends that the trial court abused its discretion by overruling his constitutional objections to alleged hearsay evidence. Matlock objected to testimony from McGarrahan and Gaines on various grounds, including hearsay, the Fourteenth Amendment of the United States Constitution, and due process. The trial court overruled these objections, but granted Matlock a running objection to the testimony and gave the following limiting instruction to the jury:

Hearsay is normally not admissible; however, certain hearsay information contained in records reviewed by experts is allowed into evidence through an expert's testimony. Such evidence is admitted only for the purpose of showing the basis of the expert's opinion.

On appeal, Matlock contends the trial court improperly overruled his objections based on the Fourteenth Amendment's due process clause. According to Matlock, Gaines and McGarrahan "summarized damaging hearsay information contained in police records and witness statements[,]" which he contends violated his due process right of confrontation.

To preserve a complaint for appeal, the complaining party must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a). Matlock's general references to the Fourteenth Amendment and due process were not sufficiently specific to preserve the particular complaint he now raises on appeal. See id.; see also In the Interest of L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (Even constitutional error must be timely raised by a sufficiently specific objection.). For this reason, we overrule issue three. Having overruled Matlock's three issues, we affirm the trial court's judgment.

AFFIRMED.

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STEVE McKEITHEN

Chief Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.