in Re: The Commitment of Julius D. Marshall ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00452-CV
___________________________
IN RE: THE COMMITMENT OF JULIUS D. MARSHALL
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. D372-S-13395-16
Before Sudderth, C.J.; Meier and Gabriel, JJ.
Opinion by Chief Justice Sudderth
MEMORANDUM OPINION1
In four issues, Appellant Julius D. Marshall appeals the order of civil
commitment following his sexually-violent-predator civil commitment proceeding.
See Tex. Health & Safety Code Ann. § 841.001 (West 2017).
In January 2007, Marshall pleaded guilty to two charges of sexual assault and
received deferred adjudication. He quickly violated the terms of his probation, and in
March 2007 he was sentenced to twelve years’ incarceration. As he approached the
date of his release, the State petitioned to have him civilly committed. Two witnesses
testified at the trial—Marshall and Dr. Timothy Proctor, a forensic psychologist. The
jury found that Marshall was a sexually violent predator, and the trial court ordered
him civilly committed. For the reasons discussed below, we affirm.
Background
I. Marshall’s childhood
By all accounts, Marshall had a rough childhood. He grew up in poverty in a
dangerous neighborhood in Shreveport, Louisiana. He did not know his father and
was raised by his mother, aunt, and two older sisters, who exposed him to drugs,
alcohol, and sex at an early age.
Likely as a result of that exposure, Marshall developed a significant drug
problem at an early age. He testified that he started smoking and drinking when he
See Tex. R. App. P. 47.4.
1
2
was only five years old and began using heavy drugs to “escape reality” when he was
eight or nine. At trial, he admitted to having used acid, marijuana, alcohol, and
prescription pills over the years and testified that he drank alcohol and used marijuana
every day and ecstasy and cocaine every weekend.
In addition to his substance abuse problems, Marshall became involved with
gang culture early on and displayed a number of behavioral problems as a child.
When he was eight, he became involved with the Crips and damaged and vandalized
property, including one instance when he set a dumpster on fire for fun. When he
was nine, he was arrested for stealing and spent three months in juvenile detention.
By the time he was eleven, he became an official member of the Crips. He was in and
out of school—he was kicked out of school in sixth grade after he broke a classmate’s
arm in a fight and was kicked out of school again in eighth grade when he broke a
classmate’s leg during another fight. He was sent to juvenile detention a second time
after being charged with assault in connection with the eighth-grade fight and he was
placed on probation for a term intended to last until he was 21 years old. But
Marshall continued to get in trouble for truancy, theft, and running away from home,
and he was involved in gang-related violence.
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II. The 2007 sexual assault convictions
Marshall moved to Texas when he was 17 and soon after, he sexually assaulted
two women, Alicia2 and Brandy.
According to Proctor’s review of the offense records, Alicia was an 18-year-old
woman of “low mental functioning,” and Marshall forced her to have sex with him at
least twice and attempted to force her to have sex with him on another occasion.
Proctor testified that the records indicated “that [Marshall] used force and that there
was an instance that . . . occurred on a playground where he forced down her pants
and forced her to bend over and forced sex on her from behind.” Alicia became
pregnant after the incident. While Marshall reportedly told Proctor that Alicia’s
mental functioning was “overblown,” Proctor testified based on his review of a
recorded statement made by Alicia in 2005 that “it was obvious . . . that she was
somebody of low mental functioning.” He noted that Alicia could not identify her
address or what street she lived on when asked for that information by the police in
the interview.
At the civil commitment trial, Marshall claimed that at the time of the incident,
Alicia had been his girlfriend for about eight months and the sex was consensual,
which contradicted the guilty plea he entered to the sexual assault charge in 2007. It
2
To protect Alicia’s and Brandy’s anonymity, we use aliases. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
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also contradicted offense records reporting Alicia’s statements that she was not
interested in Marshall and they were not dating.
Marshall’s sexual assault of Brandy took place shortly after his September 2005
assault of Alicia. Around 3:00 a.m. on Christmas morning in 2005, Marshall assaulted
Brandy, a prostitute, by grabbing her as she walked down the street, pulling her to the
side, forcing off her pants and shoes, and forcing her to engage in sex with him.
According to records, a witness heard Brandy screaming and “heard him saying things
that suggested force,” such as “shut up and take my dick,” and the witness called 911.
Marshall admitted that he had sex with Brandy but denied that he did so by force. In
Marshall’s version of events, he had had sex with Brandy before, sometimes in
exchange for drugs and other times when he paid her, and the Christmas morning
incident was no different—he claimed that he offered Brandy drugs in exchange for
sex. According to Proctor, Brandy denied knowing Marshall.
In January 2007, Marshall pleaded guilty to both charges of sexual assault and
received deferred adjudication. His freedom was short-lived, as his probation was
revoked in March 2007 for his failure to register as a sex offender and for testing
positive for marijuana and alcohol use. He was sentenced to twelve years’
confinement for each sexual assault charge and to five years’ confinement for the
separate charge of failing to register as a sex offender.
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III. Marshall’s behavior in prison
Marshall developed a lengthy disciplinary record while serving his time in
prison. According to Proctor’s review, Marshall’s prison records included 90 major
disciplinary cases, and Marshall admitted that these infractions included fighting,
refusing to obey orders, creating disturbances, refusing to work, being out of place,
possessing contraband, possessing tobacco products, testing positive for marijuana,
stealing, and sexual misconduct. Marshall admitted that he threatened to harm
correctional officers and that he even broke a correctional officer’s jaw by repeatedly
punching him during a fight. His drug use continued—he admitted to smoking
marijuana daily and to using K2 on occasion while in prison—and he continued to be
involved in gang activity.
At least 26 of Marshall’s disciplinary infractions were for sexual misconduct.
Proctor testified that Marshall had intentionally exposed himself and masturbated in
front of other people in prison, particularly female correctional officers. Marshall
admitted at trial that he purposely masturbated in front of female correctional officers
as often as twice a week and that, in his opinion, some of the female officers “entice[d
him] into masturbating.” He also admitted that he was not written up for every
instance of his masturbating in front of officers. According to Proctor, this behavior
was continuous throughout Marshall’s incarceration, through various prison units and
toward different correctional officers, and as a result Marshall was only allowed to
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have “[v]ery limited” exposure to women in prison and no contact with female
civilians.
Despite his history of misconduct and his admission that he masturbated in the
past as often as two or three times a day, Marshall denied having a high sex drive. He
also denied having a problem with masturbation, but he answered “Yes, obviously,”
when asked if he wished he masturbated less.
As a result of Marshall’s repeated disciplinary problems, he was denied access
to education and treatment programs (including sex offender treatment), he was not
permitted to work, he lost good conduct time, he was denied parole, and he spent
approximately eight of his twelve years of incarceration in administrative segregation.
IV. The trial
A. Marshall’s testimony
At trial, Marshall professed that he had “a lot of regrets” about the trouble he
caused as a child and admitted that his behavior was wrong. But he did not express
remorse about the 2005 sexual assaults of Alicia and Brandy, insisting instead that
both incidents were consensual. He also denied having a drug problem or being a sex
offender and testified that he did not need any substance abuse or sex offender
treatment.
B. Proctor’s assessment
Proctor testified at length regarding his evaluation of Marshall. Proctor
explained that he conducted an almost three-hour interview with Marshall and
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reviewed documents including police records related to the 2005 sexual assaults,
witness statements (including those by Alicia and Brandy), prison records, medical
records, court documents, a record of a prior psychological evaluation, and Marshall’s
deposition in this case. He also conducted actuarial tests. Based on his evaluation,
Proctor opined that Marshall had a behavioral abnormality that made him likely to
engage in a predatory act of sexual violence.
Proctor listed several factors that he considered in making this determination.
In particular, he emphasized the nature of Marshall’s sexual deviancy and Proctor’s
diagnosis of Marshall as a psychopath, which he described as a severe version of
antisocial personality disorder.
Several characteristics of Marshall’s sexual deviancy stood out to Proctor. He
noted that Marshall was not related to his victims and that one (Brandy) was a
stranger to him. This was significant because it indicated that Marshall’s potential
victims could be anyone. Proctor also emphasized the continuing nature of Marshall’s
sexually violent behavior, especially his continuing to engage in sexual misconduct in
prison. In Proctor’s view, this evidenced a high sex drive and Marshall’s inability to
control himself despite the obvious consequences he could receive in prison. Proctor
labeled Marshall’s persistent sexual misconduct in prison as a “really important risk
factor.”
According to Proctor’s evaluation, Marshall’s sexual deviancy was a partial
manifestation of his antisocial and psychopathic personality. Proctor described a
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person with antisocial personality disorder as “somebody who violates the rights and
rules of others, breaks rules, doesn’t follow the rules and regulations of society, is
aggressive, impulsive, dishonest. It starts as a juvenile and continues on of not
complying with the rules and - - and laws of society.” He then described psychopathy
as “a more severe form of antisocial personality” that has many aspects and is
characterized by “somebody who breaks rules repeatedly both early on and as they get
older, who’s aggressive, who is - - engaging in things like lying.” He elaborated, “[I]t
has more of the emotional component that goes along with someone who is a
psychopath of them having a very high opinion of themselves, having a very - - what
we call grandiose opinion of themselves and their abilities.” And he described
psychopaths as “[o]ften attempt[ing] to be c[u]nning and manipulative[, c]old and
callous and lacking in empathy[, i]rresponsible.”
Proctor used the Hare Psychopathy Checklist-Revised (PCLR), Static-99R, and
Risk for Sexually Violent Protocol (RSVP) to assist in his diagnosis of Marshall as a
psychopath. Proctor testified that PCLR is a tool used to determine if someone is a
psychopath using a list of extensively researched factors that include pathological
lying, being grandiose, and being irresponsible. It uses a scale of zero to 40, and most
psychopaths score above a 30. Proctor scored Marshall as a 33. He testified that, in
terms of the general prison population, Marshall’s score of 33 was “very high” and in
the 94th percentile.
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Proctor described the Static-99R as a “risk assessment measure” that used
research-based factors that “tended to separate people who committed another sex
offense versus those who didn’t re-offend.” The Static-99R takes into account ten
factors, including the offender’s age, the number of previous sex offenses, the number
of times the offender had been sentenced for any kind of offense, and whether the
offender has ever had a long-term (more than two years in duration), live-in romantic
relationship. Proctor gave Marshall a score of six, which placed him in the “well-
above-average risk range, which is the highest of the range.” According to Proctor, a
typical sex offender scores as a two.
Finally, Proctor utilized the RSVP, which he described as a list of risk factors
used to determine an offender’s risk level. In addition to Marshall’s sexual deviancy as
discussed above, Proctor took into account the following:
• Marshall’s young age. He was 30 at the time of trial and Proctor testified that
people older than 35 generally have a lower risk of reoffending.
• Marshall’s lack of involvement in any long-term, live-in intimate relationships.
• Marshall’s substance abuse problems.
• Marshall’s history of violent and suicidal thoughts and gestures, difficulties
managing stress, poor coping skills, lack of self-awareness, and inability to plan
for the future.
• Marshall’s affiliations with “people that are a bad influence, including
continued involvement in a gang.”
• Marshall’s limited employment history.
• Marshall’s lack of sex offender or substance abuse treatment.
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• Marshall’s problems with supervision and authority, especially as demonstrated
through his extensive prison disciplinary history.
• Marshall’s minimization and denial of the 2005 sexual assaults and his sexual
misconduct in prison.
In summary, Proctor testified that Marshall was “somebody . . . that is very
prone to acting on his own impulses, his own desires, will break the rules and
regulations of others for his own desires. Isn’t concerned about other people, their
well-being, their feelings the way you want to see someone. . . . [T]hey’re not
empathetic.” He went on to say, “[W]ith that makeup . . . he’s prone to doing what
he wants to do. Like I said, if - - if somebody will give him what he wants, he’ll take
it. If - - if - - but if they won’t, then he’ll get it through force.” Proctor concluded
that Marshall was at a high or well-above-average risk of sexually reoffending.
C. The jury’s verdict and the trial court’s order
The jury found that Marshall was a sexually violent predator. The trial court
correspondingly ordered that Marshall be civilly committed.
Discussion
Marshall brings four issues on appeal. In his first two issues, he challenges the
legal and factual sufficiency of the evidence, respectively. In his third and fourth
issues, he challenges the trial court’s overruling of his rule 403 objections to certain
evidence.
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I. Sufficiency of the evidence
We review sexually-violent-predator civil commitment proceedings for legal
sufficiency of the evidence using the appellate standard of review applied in criminal
cases. In re Commitment of Short, 521 S.W.3d 908, 911 (Tex. App.—Fort Worth 2017,
no pet.). We assess the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could find the statutory elements required
for commitment beyond a reasonable doubt. Id.
While we have adopted the criminal standard for reviewing legal sufficiency of
the evidence in these proceedings, we apply the civil standard for factual sufficiency.
See id. Thus, when reviewing the factual sufficiency of the evidence to support the
civil commitment order, we weigh all 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.” Id. (quoting In re Commitment of Dever, 521
S.W.3d 84, 85–86 (Tex. App.—Fort Worth 2017, no pet.)). We reverse only if, after
weighing the evidence, we determine that the risk of an injustice remains too great to
allow the verdict to stand. Id.
To have an offender civilly committed, the State must show beyond a
reasonable doubt that the person (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. Tex. Health & Safety Code Ann. §§ 841.003
(defining “sexually violent predator”), 841.062(a) (imposing a “beyond reasonable
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doubt” burden of proof) (West 2017). The evidence undoubtedly qualifies Marshall
as a sexually violent offender because he has more than one conviction for a sexually
violent offense—sexual assault. See id. § 841.003 (defining “repeat sexually violent
offender” as a person who has been convicted of more than one sexually violent
offense).
Marshall essentially argues that the evidence is legally and factually insufficient
because he has never been released from prison, committed another sexual offense,
and then been reconvicted and sentenced to another prison term. He emphasizes the
fact that he was 18 when he went to prison and dismisses his extensive disciplinary
history while in prison on the basis that masturbation is popular in prison. In
Marshall’s opinion, the evidence “may support a conclusion that [he] may have had a
behavioral abnormality 12 years ago, but it does not support a conclusion that [he]
suffer[ed] from a behavioral abnormality at the time of his commitment trial.” His
argument is entirely unconvincing.
Contrary to his argument, the evidence did establish that Marshall is a
recidivist. While he was being investigated for sexually assaulting Alicia, he sexually
assaulted Brandy. And a plethora of evidence displayed his defiance of authority and
inability to follow the rules, factors that Proctor took into account in diagnosing
Marshall as a psychopath. Proctor testified that Marshall’s lengthy sexual misconduct
disciplinary history was “unusual.” And Marshall admitted that because of his
continued disciplinary infractions he spent two-thirds of his time in prison in
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administrative segregation, was prohibited from working or obtaining treatment, was
denied parole, and lost good conduct time.
Proctor testified based on his education and experience to his review of the
records, interview of Marshall, and diagnosis of Marshall as a psychopath. He
explained the numerous factors that he considered, which included Marshall’s sexual
deviance, his traits and behavior as a psychopath, his antisocial traits, his ongoing
substance abuse problems, his inability to control himself and lack of coping skills,
and his problems with supervision and authority.
Although Marshall denied having sexually assaulted Alicia or Brandy (despite
his guilty pleas to both crimes), he admitted to his violation of the terms of probation
and to his extensive disciplinary problems in prison. Marshall even admitted at trial
that he purposely masturbated in front of female correctional officers as often as
twice a week and he thought that some of the female officers “entice[d him] into
masturbating.” Marshall was written up 26 times for sexual misconduct in prison, and
he admitted on the stand that he was not written up for every instance of sexual
misconduct he actually committed. Despite his candid admissions, Marshall testified
that he did not need sex offender treatment.
The same is true of Marshall’s substance abuse problems. Despite his
admissions that he has used drugs since the startlingly young age of five and his
continuing use while in prison, Marshall denied needing drug or alcohol treatment.
Proctor emphasized Marshall’s drug and alcohol use, explaining that alcohol and
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drugs are “disinhibitors,” meaning that “they allow things to come out in the person
that they might normally hold back.” He explained that this was especially concerning
considering that Marshall already had trouble restraining his impulses.
And Proctor testified that Marshall is at a well-above-average risk of sexually
reoffending, in the highest category of such risk.
Viewing all of this evidence in the light most favorable to the jury’s verdict, it
was legally sufficient; viewing it in a neutral light, it was factually sufficient. See Short,
521 S.W.3d at 914 (considering evidence of appellant’s mental and personality
disorders, lack of empathy, the nature of his offenses, his lack of treatment, and the
expert’s conclusions in holding evidence was sufficient); In re Commitment of Wirtz, 451
S.W.3d 462, 466–67 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding
evidence was sufficient where appellant admitted to multiple sexual offenses,
including exposing himself to children and an inappropriate relationship with a minor
and continuing his sexual misconduct in prison, and forensic psychologist testified to
diagnosis of pedophilia and giving appellant the highest possible score on the Static-
99 scale). We therefore overrule Marshall’s first and second issues.
II. Rule 403 objections
In Marshall’s third and fourth issues, he argues that the trial court erred by
overruling his rule 403 objections to evidence of Alicia’s and Brandy’s statements to
police and to evidence of his juvenile criminal history.
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We review the admission of evidence for an abuse of the trial court’s discretion.
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). A trial court
abuses its discretion if the court acts without reference to any guiding rules or
principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate
court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in
the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998).
Rule 403 provides that the trial court may exclude relevant evidence if its
probative value is “substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Additionally, an
expert witness is precluded from disclosing otherwise inadmissible underlying facts or
data if their probative value in helping the jury evaluate the opinion is outweighed by
their prejudicial effect. Tex. R. Evid. 705. Factors to consider in determining
whether evidence’s probative value is outweighed by a risk of unfair prejudice
“include the probative value of the evidence, the potential of the evidence to impress
the jury in some irrational way, the time needed to develop the evidence, and the
proponent’s need for the evidence.” In re Commitment of Stuteville, 463 S.W.3d 543, 555
(Tex. App.—Houston [1st Dist.] 2015, pet. denied) (quoting In re Commitment of
Anderson, 392 S.W.3d 878, 882 (Tex. App.—Beaumont 2013, pet. denied)).
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A. Alicia’s and Brandy’s statements
Marshall objected to the following testimony by Proctor:
Q. . . . [W]hat did you see in the records that’s pertinent to your
opinion?
A. Right. And, obviously, there was a sexual offense involving
[Alicia] that he was convicted of. She reported, in addition to that one
instance, two other instances. One where he forced sex upon her a
second time and another where he attempted to. She was said to be a
person of low mental functioning who had suffered - -
Marshall’s counsel objected to the testimony on the basis that it was hearsay and
improper expert testimony, and that its probative value was outweighed by the risk of
unfair prejudice.
Marshall’s counsel also objected to the following question by the State posed
to Proctor:
Q. So what did you learn from the records and the recordings
that you listened to concerning the offense with [Brandy] that’s pertinent
to your opinion that Mr. Marshall has a behavioral abnormality?
Marshall’s counsel lodged the same objections to hearsay and improper expert
testimony and under rule 403. He has not pursued his hearsay or improper expert
testimony objections on appeal and instead has focused his argument on rule 403.
Marshall argues in particular that any probative value of Proctor’s challenged
statements was outweighed by its unfairly prejudicial nature because Proctor had
already testified to his reliance on Alicia’s and Brandy’s statements and “thus, there
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was no need for the State to keep piling on the specific details other than to prejudice
Mr. Marshall.”
First, we remind Marshall that evidence, by its nature, is designed to be
prejudicial. Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).
Second, our sister courts have agreed that, in a sexually violent predator
proceeding, “having an expert explain the facts he considered, including past sexual
offenses, and how those facts influenced his evaluation, assists the jury in weighing
the expert’s opinion on the ultimate issue.” Stuteville, 463 S.W.3d at 555 (citing In re
Commitment of Young, 410 S.W.3d 542, 557 (Tex. App.—Beaumont 2013, no pet.)).
The Beaumont court of appeals—which until 2015 was the only court to review these
proceedings—has often upheld the admission of expert testimony about the details of
underlying sex offenses. Id. at 556 (citing In re Commitment of Alvarado, No. 09-13-
00217-CV, 2014 WL 1285136, at *10–11 (Tex. App.—Beaumont Mar. 27, 2014, pet.
denied) (mem. op.); In re Commitment of King, No. 09-13-00255-CV, 2014 WL 346109,
at *2–3 (Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.)). As the facts are
presented in this case, we agree with our sister courts.
Proctor explained that sexual deviancy, in addition to an antisocial lifestyle, is
one of the biggest risk factors to consider in evaluating the risk for sexual reoffending.
He also explained that examining the details of Marshall’s convictions was important
to evaluating his emotional and volitional capacity and that reviewing the records was
important because offenders do not generally volunteer information about their own
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sexual deviancy. This is true in this case—Marshall denied assaulting Alicia and
Brandy and alleged that both sexual encounters were consensual. The trial court did
not abuse its discretion by allowing Proctor to challenge Marshall’s version of events
by discussing his review of Alicia’s and Brandy’s statements, which also provided the
jury with insight into Proctor’s evaluation of Marshall. We therefore overrule
Marshall’s third issue.
B. Juvenile criminal history
Marshall’s fourth issue argues that the trial court abused its discretion by
allowing Proctor’s testimony to Marshall’s criminal history as a juvenile because its
probative value was outweighed by its unfairly prejudicial nature.
Although Marshall complains of Proctor’s testimony that Marshall set a
dumpster on fire when he was eight and was detained for vandalism, truancy, theft,
and assault, Marshall only objected to the relevance of this testimony and did not
object to it on the basis of Rule 403. He does not pursue his relevancy objection on
appeal, instead arguing that its admission violated rule 403. By failing to object to that
testimony under rule 403, he waived the argument he now presents on appeal. See
Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1); Bushell v. Dean, 803 S.W.2d 711,
712 (Tex. 1991) (op. on reh’g) (holding that a complaint is waived if a party fails to
present a timely objection to the trial court).
When Marshall lodged a rule 403 objection to the State’s question of Proctor,
“Per [Marshall’s] self-report, was he involved in any fighting behaviors as a juvenile?”
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the trial court excused the jury and held a hearing. During the hearing Proctor
testified,
In terms of fights, . . . he got into the fights when he was younger,
especially between the ages of 11 and 13. As a result of these fights,
which occurred in school, he was in the sixth grade expelled and sent to
alternative school. And then in the eighth grade he was suspended—
essentially expelled for the rest of the year and sent to alternative school,
but originally returned to that school.
The trial court then found that the probative value outweighed the “prejudicial
impact,” and Proctor testified to the same once the jury returned.
On appeal, Marshall argues that this evidence had no correlation to his sexual
offenses and served “no purpose other than to prejudice” the jury against him.
Marshall’s argument again falls flat.
As discussed above, it is useful for the jury to consider the expert’s explanation
of the facts he considered in order to weigh the expert’s opinion on the ultimate issue.
Stuteville, 463 S.W.3d at 555. Proctor testified that Marshall’s behavioral issues as a
juvenile, which include his history of fighting, were integral to Proctor’s diagnosis of
Marshall as antisocial and as part of the overall assessment of Marshall’s risk to
reoffend.
Even if we were to hold that allowing the testimony was an abuse of discretion,
there was no harm. We will not reverse a trial court’s judgment because of an
erroneous evidentiary ruling unless the ruling probably, though not necessarily, caused
the rendition of an improper judgment. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,
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136 (Tex. 2012); Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex.
2008). Viewing Marshall’s history of fighting as a juvenile in the context of the entire
record—which included evidence of his ongoing gang involvement and fighting in
prison, including with a prison guard—its admission was harmless. We therefore
overrule Marshall’s fourth issue.
Conclusion
Having overruled all of Marshall’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: September 13, 2018
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