in Re: The Commitment of William Marshall Barnes ( 2018 )

Affirmed and Opinion Filed July 20, 2018
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-17-00939-CV
IN RE COMMITMENT OF WILLIAM MARSHALL BARNES
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. CV-16-70005
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang, and Justice Stoddart
Opinion by Chief Justice Wright
This is an appeal from a jury trial in a civil commitment action under the Sexually Violent
Predator Act (Act). TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.151 (West 2017 & Supp.
2017). After a jury unanimously found that appellant was a sexually violent predator, the trial
court ordered appellant to be civilly committed for sex offender treatment and supervision. In one
issue, appellant contends the trial court erred by allowing certain evidence. We overrule
appellant’s issue and affirm the trial court’s judgment.
Background
Before the State filed the petition for civil commitment, appellant was convicted of three
offenses that qualify as sexually violent offenses under the Act: (1) February 9, 1989, in Arkansas,
he was sentenced to six years’ probation for the offense of sexual abuse in the first degree;1 (2) on
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The trial court took judicial notice of the fact that the Arkansas offenses of sexual abuse in the first degree is substantially similar to the
Texas offense of aggravated sexual assault of a child.
April 20, 1993, appellant violated his probation and was again convicted of sexual abuse in the
first degree and incarcerated in Arkansas; and (3) on November 18, 1999, he was convicted of
indecency with a child under 17, in Dallas County, Texas. Appellant was incarcerated for the
Texas offense at the time the State filed its petition in the underlying case.
At trial, appellant testified he had been sexually attracted to toddlers since he was about
fourteen or fifteen-years old. When he was seventeen-years old, he committed his first offense in
Arkansas, similar to the Texas offense of aggravated sexual assault of a child. Appellant had
known the four-year-old victim since she was two-years old. He befriended her and once he gained
her trust, he performed oral sex on her and ejaculated on her on two occasions. After he was
caught by the child’s mother the second time he assaulted her, appellant was arrested and convicted
of sexual abuse in the first degree and sentenced to six years’ probation. While on probation for
that offense, some of his relatives asked him to babysit his young cousins. When left alone with
the children, appellant performed oral sex and ejaculated on his three-year-old female cousin while
her three younger male siblings were in the same room. He admitted he wanted to have intercourse
with the girl but did not because he did not think he had enough time. Appellant also admitted to
taking Polaroids of the victim’s vagina and her two-year-old brother’s penis. Appellant was
arrested shortly thereafter, convicted of sexual abuse in the first degree, and sentenced to six years’
confinement. The trial court revoked his probation and sentenced him to ten years’ confinement.
Those sentences ran concurrently, and appellant was released approximately five years later.
Once released, appellant began working at an Arkansas Wendy’s, where he met his third
victim’s mother. Appellant and the victim’s mother starting dating and about a month later, he
moved in with her and her two-year-old daughter. A few months later, appellant, his girlfriend,
and her daughter went to Dallas, Texas to visit her family, where he was alone with the toddler for
the first time. Appellant fondled the two-year-old and was caught by her mother. His girlfriend
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and her family sent him back to Arkansas, where he was eventually arrested and transferred back
to Dallas County, Texas. Appellant was sentenced to 20 years for indecency with a child and was
incarcerated for that offense when the State filed the petition for the underlying suit. Appellant
admitted he did not believe the sex offender treatment program in prison would “fix” him,
testifying he believed “[i]t’s gonna be a lifetime.”
Dr. Randall Price, a psychologist who specializes in forensic psychology, testified there
are three psychological evaluations that must take place before a person goes to trial to be civilly
committed. The process starts in prison, where prison sex offender treatment providers screen
every inmate nearing release who has two convictions for sexual offenses. After the initial
screening, some are recommended to the Multi-Disciplinary Team (MTD) and evaluated to
determine whether they have a behavioral abnormality. Those who are determined to have a
behavioral abnormality then undergo a final evaluation by a doctor who reviews all of the inmate’s
criminal and medical records, including the previous evaluations, and conducts a face-to-face
interview to assess whether the inmate has a behavioral abnormality. Price reviewed appellant’s
records, including a report from Dr. Turner2, who completed appellant’s MTD evaluation. Price
testified he and Turner ultimately shared the same opinion—appellant has a behavioral
abnormality. Appellant’s counsel objected to any use of Turner’s opinion, asserting it was
improper hearsay and appellant had a right to cross-examine Turner. The trial court overruled
appellant’s objection. During Price’s testimony, appellant’s counsel requested and was denied a
running objection. Appellant now appeals the trial court’s hearsay ruling.
Applicable Law
We review a trial court’s decision on admission of evidence under an abuse of discretion
standard. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); In re
2
The record does not contain Dr. Turner’s first name.
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Commitment of Salazar, No. 09-07-00345-CV, 2008 WL 4998273, at *2 (Tex. App.—Beaumont
Nov. 26, 2008, pet. denied) (mem. op.) (citing Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728,
735 (Tex. App.—Texarkana 1996, no writ)). A trial court abuses its discretion when it acts without
reference to any guiding rules and principles or if it acts arbitrarily or unreasonably. In re
Commitment of Winkle, 434 S.W.3d 300, 315 (Tex. App.—Beaumont 2014, pet. denied) (citing
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)).
Discussion
In his sole issue, appellant contends the trial court erred by admitting Turner’s expert
opinion through Price’s testimony. According to appellant, the State improperly used Price as a
“conduit” for Turner’s opinion while avoiding cross-examination and improperly bolstering
Price’s testimony. We disagree.
Rule 705 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
supporting his or her opinion through trial testimony. See TEX. R. EVID. 705(a); In re Commitment
of Polk, 187 S.W.3d 550, 555 (Tex. App.—Beaumont 2006, no pet.). “When an expert relie[s]
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.” In re Commitment of Salazar, 2008 WL 4998273, at *4.
However, hearsay evidence that would be otherwise admissible may be excluded if its probative
value in helping the jury evaluate the opinion is outweighed by its prejudicial effect. See TEX. R.
EVID. 705(d); In re Commitment of Carr, No. 09-14-00156-CV, 2015 WL 1611949, at *2 (Tex.
App.—Beaumont Apr. 9, 2015, no pet.) (mem. op.). If the court allows the jury to hear such
evidence and the opponent of the evidence makes a timely request, the court must provide a
limiting instruction to the jury, restricting the jury’s use of the evidence. See TEX. R. EVID. 705(d);
In re Commitment of Carr, 2015 WL 1644949, at *2.
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Here, Price explained he reviewed records about appellant’s training and education,
employment and medical histories, two prior sexual offenses, prison file, and a copy of the
statutorily required MDT (Multi-Disciplinary Team) evaluation. The MDT evaluation was
conducted by Turner in forming his opinion.
Although Price mentions Turner’s opinion that appellant had a behavioral abnormality,
Turner’s opinion was part of the initial screening process and considered by Price in reaching his
own conclusion. Price explained that he did not form an opinion about whether appellant had a
behavioral abnormality until after he reviewed all the records and completed a face-to-face
interview with appellant. And, the statute allows Price to rely on such information in determining
whether an offender has a behavioral abnormality.3 See TEX. HEALTH & SAFETY CODE ANN. §
841.023 (West 2017). Accordingly, the trial court did not err in allowing Price to mention Turner’s
opinion as part of his expert testimony.
In reaching this conclusion, we necessarily reject that Price was acting as a “conduit” for
Turner’s opinion. Rather, he was explaining the basis for his opinion using the type of information
reasonably relied on by experts in his field. See Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d
558, 566–68 (Tex. App.—San Antonio 2011, pet. denied.) (admission of expert testimony was not
error where testifying expert relied on estimate from another expert in same field and information
was of type reasonably relied on by experts in their field). Moreover, the trial court included a
limiting instruction to further restrict the jury’s use of Turner’s opinion. Under these
circumstances, we conclude the trial court did not abuse its discretion by permitting Turner’s
expert opinion through Price’s testimony.
3
To be civilly committed under the Act, a jury must unanimously find the offender is a sexually violent predator. Id. 841.062. The Act
defines a “sexually violent predator” as 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).
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We reach a similar conclusion with respect to appellant’s complaint that he should have
been allowed to cross-examine Turner. As stated above, rule 705 of the 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 supporting his or her opinion through trial testimony. See TEX. R.
EVID. 705(d). Here, appellant cross-examined Price, at which time, he had the opportunity to
question him regarding the basis of his opinion. The basis of Price’s opinion included Turner’s
opinion that appellant has a behavioral abnormality. Accordingly, appellant did not have a right
to separately cross-examine Turner; it is sufficient that he cross-examined Price.
Accordingly, we affirm the trial court’s judgment and order of commitment.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
170939F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE COMMITMENT OF WILLIAM On Appeal from the 265th Judicial District
MARSHALL BARNES Court, Dallas County, Texas
Trial Court Cause No. CV-16-70005.
No. 05-17-00939-CV Opinion delivered by Chief Justice Wright.
Justices Lang and Stoddart participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered July 20, 2018.
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