in Re: Commitment of George Cleveland Auvil, Jr. ( 2022 )

NO. 12-22-00062-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 123RD
IN RE: COMMITMENT OF
§ JUDICIAL DISTRICT COURT
GEORGE CLEVELAND AUVIL, JR. § SHELBY COUNTY, TEXAS
MEMORANDUM OPINION
George Cleveland Auvil, Jr. appeals the trial court’s judgment and order of civil
commitment as a sexually violent predator. Appellant’s sole issue on appeal is that the trial court
abused its discretion when it admitted certain testimony. We affirm.
BACKGROUND
Appellant was convicted of four counts of aggravated sexual assault of a child and
sentenced to imprisonment for thirty years. Before his sentence was complete, the State filed a
civil petition to commit him as a sexually violent predator. At trial, the jury heard evidence that
Appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory
act of sexual violence. The jury also heard evidence that Appellant was currently serving four
concurrent thirty-year sentences following his convictions for aggravated sexual assault of a child.
Prior to that, Appellant was sentenced in Louisiana in 1979 for “aggravated crime against nature.”
At the conclusion of trial, the jury found beyond a reasonable doubt that Appellant is a sexually
violent predator. The trial court entered judgment in accordance with the jury’s verdict and civilly
committed Appellant for sex-offender treatment and supervision. This appeal followed.
ADMISSIBILITY OF EVIDENCE
In his sole issue, Auvil urges the trial court abused its discretion when it overruled his
objection to a question allegedly calling for speculation.
Standard of Review and Applicable Law
When reviewing a trial court’s ruling on admissibility of evidence, we must uphold the
trial court’s decision absent an abuse of discretion. See City of Brownsville v. Alvarado, 897
S.W.2d 750, 753 (Tex. 1995); McLellan v. Benson, 877 S.W.2d 454, 458 (Tex. App.–Houston
[1st Dist.] 1994, no writ). A trial court abuses its discretion when it acts without regard for any
guiding rules or principles. Alvarado, 897 S.W.2d at 754.
To preserve error for appellate review the complaining party must timely and specifically
object to the evidence and obtain a ruling. See TEX. R. APP. P. 33.1(a); see also TEX. R. EVID.
103(a)(1). The objection at trial must be sufficiently specific to make the trial court aware of the
complaint. TEX. R. EVID. 103(a)(1)(A). “An objection at trial that does not comport with a point
of error on appeal preserves nothing for review.” Anderson v. Snoddy, No. 06-14-00096-CV,
2015 WL 5634564, at *11 (Tex. App.—Texarkana Sept. 25, 2015, pet. denied) (mem. op.).
An opinion is speculative when it is based on guesswork or conjecture. Nat. Gas Pipeline
Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012); Rife v. Kerr, 513 S.W.3d 601, 615 (Tex.
App.—San Antonio 2016, pet. denied). An opinion is not speculative if it is rationally based on
an eyewitness’s perception. In re Molina, 575 S.W.3d 76, 81–82 (Tex. App.—Dallas 2019, orig.
proceeding); see also TEX. R. EVID. 701(a). “The requirement that an opinion be rationally based
on the perceptions of the witness is composed of two parts: (1) the witness must establish personal
knowledge of the events from which his opinion is drawn; and (2) the opinion drawn must be
rationally based on that knowledge.” Dodson v. Munoz, No. 04-17-00409-CV, 2018 WL
3747748, at *6 (Tex. App.—San Antonio Aug. 8, 2018, no pet.) (mem. op.) (internal quotation
marks omitted). An opinion satisfies the personal knowledge requirement “‘if it is an
interpretation of the witness’s objective perception of events,’” and it is rationally based on the
witness’s personal knowledge “‘if a reasonable person could draw that opinion under the
circumstances.’” Id. (quoting Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 670 (Tex.
App.—Houston [14th Dist.] 2017, no pet.)); see also Health Care Serv. Corp. v. E. Tex. Med.
Ctr., 495 S.W.3d 333, 339 (Tex. App.—Tyler 2016, no pet.) (“‘Rationally based’ means that the
opinion must be one that a person could normally form from observed facts.”).
Analysis
During the State’s direct examination of Appellant, it asked about Appellant’s 1979
conviction for “aggravated crime against nature.” During the questioning, Appellant denied
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engaging in the activities alleged and for which he was convicted. The State then asked Appellant
the following:
Q: Why do you think [the victim] would accuse you of offending him?
A: I don’t have no idea.
[Appellant’s attorney]: Objection. Speculation.
[Trial court]: Overruled.
Appellant contends the trial court erroneously overruled his objection, which diminished
his credibility. He argues on appeal that the testimony was inadmissible under Texas Rule of
Evidence 701 regarding opinion testimony by lay witnesses. However, Appellant did not make
that objection in the trial court. Appellant’s objection of “speculation” was not specific enough to
inform the trial court he was also objecting under Rule 701. See In Interest of M.M.W., 536
S.W.3d 611, 612 (Tex. App.—Texarkana 2017, no pet.). Therefore, this issue is not preserved for
our review.
However, even if this issue were preserved by an argument of speculation on appeal, the
question did not call for speculation. The State asked Appellant why he believed the victim would
claim he was assaulted if the claim were not true. Appellant previously testified that he had
known the victim for approximately one year and they met via mutual friends. It is logical that
Appellant may have known why the victim would accuse him of something he allegedly did not
do. And that information would have been within Appellant’s perceptions and experience.
Therefore, the question did not call for improper, speculative opinion testimony and the trial court
did not abuse its discretion by overruling an objection for speculation. See TEX. R. EVID. 701.
Appellant’s sole issue is overruled.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered August 10, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 10, 2022
NO. 12-22-00062-CV
IN RE: COMMITMENT OF GEORGE CLEVELAND AUVIL, JR.
Appeal from the 123rd District Court
of Shelby County, Texas (Tr.Ct.No. 21CV35640)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.