in Re the Commitment of Jose Ovalle ( 2020 )

NUMBER 13-19-00043-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE THE COMMITMENT OF JOSE OVALLE
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
After a jury found appellant Jose Ovalle to be a sexually violent predator (SVP),
the trial court civilly committed Ovalle for sex-offender treatment and supervision. See
TEX. HEALTH & SAFETY CODE ANN. § 841.081. By four issues, Ovalle argues: (1) the trial
court’s response to the first jury’s note constituted reversible error; (2) he has probably
been prevented from presenting his appeal because the jury’s second note went missing;
(3) the evidence was legally insufficient to support the jury’s finding that he is an SVP;
and (4) the evidence was factually insufficient to support the finding that he is an SVP.
We affirm.
I. BACKGROUND
In 2018, Ovalle was incarcerated in the Texas Department of Criminal Justice—
Institutional Division (TDCJID) when the State filed its original petition requesting Ovalle
be civilly committed for treatment and supervision because of his alleged status as an
SVP. See id. § 841.001.
A. Ovalle’s History of Sexual Offenses
On October 29, 2018, the trial on Ovalle’s civil commitment began. The State’s
sole witness was Darrel Turner, a clinical psychologist that specializes in forensic
psychology. He was retained by the State to evaluate Ovalle and opine as to whether
Ovalle displayed a behavioral abnormality that warranted civil commitment. See id.
§ 841.001. According to Turner, he begins his evaluation process by reviewing the
records and documents pertaining to the individual in question. He then personally
interviews the individual in question, performs some psychological testing, identifies both
risk factors and protective factors regarding the individual’s likelihood of committing future
predatory sexual offenses, and then comes to a final opinion.
Turner recounted Ovalle’s history of sexual violence. According to the records and
criminal history that Turner reviewed, Ovalle’s first conviction of a sexually violent offense
was in 1999 when he was convicted for sexual assault of a child. See TEX. PENAL CODE
ANN. § 22.011(a)(2). The underlying offense was committed in 1998 when Ovalle was
twenty-two years old and on probation for possession of cocaine. At the time, Ovalle had
known the victim, a thirteen-year old girl, for about one year. Ovalle went to the home of
2
the girl, entered through her bedroom window around 3:00 a.m., and they had sex on the
bedroom floor. Ovalle admitted that he was intoxicated that night. Ovalle was sentenced
to thirty months’ imprisonment.
The second sexual offense occurred in 2002, shortly after being released from
prison for his first sexual offense. Ovalle was twenty-five years old and married. The victim
in this case was Ovalle’s six-year-old stepdaughter. According to the record, Ovalle had
sex with his wife then took his stepdaughter from her bed to the couch and fondled her
vagina. Ovalle’s wife walked in and confronted him; Ovalle denied all wrongdoing but the
girl confirmed the abuse. Ovalle was convicted for indecency with a child and placed on
community supervision for five years. See id. § 21.11(a)(1).
The third sexual offense occurred in 2004, just two years after—and while Ovalle
was still on community supervision for—the second sexual offense. The victim was
Ovalle’s six-year old niece. According to the record, Ovalle was babysitting the girl and
either penetrated or attempted to penetrate her anus with his penis. Ovalle also admitted
that he was drinking and using drugs at the time of the offense. He was sentenced to
twenty years’ imprisonment for the second sexual offense and ten years’ imprisonment
for the third sexual offense, and the sentences were ordered to run concurrently. The
State filed its original petition to have Ovalle civilly committed during this incarceration
period.
Turner testified that when he interviewed Ovalle, Ovalle initially denied all
wrongdoing.
B. Ovalle’s Test Results
3
Turner testified concerning some of the tests he used in evaluating Ovalle. First,
using the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Turner
diagnosed Ovalle with pedophilic disorder, which is a pattern of on-going attraction to
prepubescent children. Turner testified that the age of thirteen is usually considered a
boundary between prepubescent and postpubescent. If the person is eleven or twelve,
then it depends on the development of the child; however, in Ovalle’s case, “it is pretty
clear” he is attracted to prepubescent children because he committed sexual offenses
against two different six-year old children, just two years apart.
Turner also diagnosed Ovalle with antisocial personality disorder. Turner testified
that individuals with this diagnosis “are not rule followers. They generally have problems
with authority. . . . They tend to be manipulative, lacking empathy in other people, and
they are willing to victimize other people to get what they want.” Turner opined that Ovalle
displayed signs of antisocial personality disorder all throughout his life. In his youth, he
was in a gang and was arrested for theft, possession of marijuana, and assault. The
record also indicated that he traded drugs for sex at a young age. Turner explained that
psychopathy is an extreme degree of antisocial personality disorder and that psychopaths
lack moral reasoning. Turner testified that he employed the Psychopathy Checklist-
Revised (PCL-R) to gauge Ovalle’s level of psychopathy. Ovalle scored a 29 on the PCL-
R, which is in the “high range of psychopathic characteristics and even in the upper range
of high range, approaching severe range.” Ovalle received such a high score for being
cunning and manipulative, pathological lying, and lacking remorse and empathy.
According to Turner, it is unusual for a pedophile to receive such a high PCL-R score.
4
Turner also evaluated Ovalle on the Static-99R, which Turner testified is an
actuarial instrument to estimate the risk of being convicted for a sexual offense in the
future. Ovalle scored a four on this test, meaning he was in the above-average range of
risk; more specifically, a score of four indicates that Ovalle is twice as likely to reoffend
compared to the average sex offender. However, Turner testified that Ovalle’s range of
risk is even higher than what the Static-99R score indicated because that test score does
not take into consideration his pedophilia diagnosis, sexually offending while on
probation, having both prepubescent and postpubescent victims inside and outside of the
family, or Ovalle’s history of substance abuse.
C. Risk Factors and Protective Factors
Turner testified concerning several recidivism risk factors he observed while
reviewing Ovalle’s convictions. According to Turner, two of the biggest risk factors are
sexual deviance and antisocial orientation. Turner defined sexual deviance in this context
as a sexual interest that requires victimizing someone in order to satisfy their own sexual
urge; pedophilic disorder is an example of sexual deviance. When a person possesses
both sexual deviance and antisocial traits, the person is “especially dangerous.” Thus,
because Ovalle has both sexual deviance and antisocial traits, it is a large risk factor for
him.
Turner further testified concerning some of the specific risk factors he identified.
Concerning the 1999 offense, Turner stated:
Well, it starts to become a problem when the version of something
as significant as a sexual assault changes across time. So we have outright
denial and then we have admittance. But I did not know how old she was
and she is a bit promiscuous herself. We see it changing and we don’t want
to see it change. We want to see a sex offender admit in full to their offense,
5
admit to what they did, recognize any effect that it may have had on the
victim and we are not really seeing that in this case.
....
But committing a sexual offense while you are being supervised is
something that speaks directly to the question of behavioral abnormality.
This is a person that had eyes on him. He was suppose[d] be reporting.
There were certain things [Ovalle] was suppose[d] to be doing; substance
abuse treatment, things of that nature and he wasn’t. This was a second
chance and during that second chance, he committed a sexual offense. So
it speaks to his ability to control his behaviors as the definition talks about
volitional control. So it is very important.
....
Research shows that sex offenders who offend while they are
intoxicated are actually at an increased risk of being arrested or convicted
for another sex offense in the future. So Mr. Ovalle admitted to being
intoxicated on cocaine and alcohol that night, so that acts as a risk factor in
this case.
Regarding the 2002 offense, Turner identified a few additional risk factors, such as
reoffending after being punished and admitting to being intoxicated again. According to
Turner, reoffending after being punished is a “huge risk factor.” More importantly, Turner
added:
We are now talking about a six year old girl that he was in a caregiver role
for her and so for him to not admit what he did, especially given the fact that
he is currently in treatment in sex offender treatment [sic], for him to deny
that offense and then deny denying the offense and then only admit to only
touching her bottom and then when confronted with records then finally say,
okay, I touched her vagina. It’s problematic. He is lacking insight. He’s
lacking in understanding of how serious these offenses are and he is not
understanding the impact that these offenses have had on the victims.
With regard to the 2004 offense, Turner opined that it was the most concerning of the
three offenses:
Well, in this case, we are seeing—we are seeing the offending
behavior escalate. So we are going from touching the vagina to making an
attempt of insertion. Again, with people present. Again, while on
6
supervision. Again, while being given another chance. So the [brazenness]
is increasing . . . his risk that he is willing to perpetrate against children
when others can conceivably find him.
....
Well, I think this is one of the most important aspects in defining his
behavioral abnormality. A behavioral abnormality is a condition that makes
a person likely to reoffend. So when we look at his behavior, that’s what we
see. We see him offend against a 13 year old. We see him reoffend after
that punishment against a six year old and then while being on supervision
given probation for that sentence, he offends again. So this is someone with
problems controlling his behavior. This is someone with problems
controlling those sexual urges to the point that he is acting out on them and
they are repeatedly landing him in legal trouble.
Turner cited Ovalle’s sexual assault of both family members and non-family
members as an additional risk factor:
Now that we have a family victim [sic] increases his victim pool even further.
So not only do we have a post-pubescent victim and prepubescent victims,
but we also have victims outside of the family and victims inside the family.
So that is going to increase his risk as well because the potential victim pool
is getting larger.
Turner also observed several protective factors, which are factors that mitigate or
reduce the risk of committing further sexual offenses. Turner testified that Ovalle’s largest
protective factor is the fact that he was forty-two years old at the time of the hearing.
Turner testified that recidivism rates for sexual offenders decrease with age. Turner also
noted that while Ovalle was in prison, he obtained his GED and only “had a few
disciplinary infractions . . . but nothing major.” Turner identified other protective factors,
such as Ovalle not having any male victims or victims that were complete strangers to
him. Turner additionally noted that Ovalle had attended an “intensive inpatient sex
offender treatment program,” which could be a protective factor. However, Turner
7
contacted the providers of the treatment program and testified that he does not believe
Ovalle progressed very much in the program.
When Turner was asked how the three offenses factored into his conclusion
concerning whether Ovalle suffers from a behavioral abnormality, Turner answered:
When we look at the definition, we are trying to decide if he has a condition
that predisposes [him] to engage in the very acts that he is engaging in
repeatedly. Another thing about the [2004 offense] that ties into that
question is the fact that it occurred not only while he was on supervision
and while register[ed] as a sex offender but relatively briefly, maybe two
years after the [2002 offense]. As we saw earlier, not a lot of time in free
society without committing a sexual offense. So this is an urge. This is clear
evidence of difficulty with volitional control which is in the definition and
acting out sexually which is in the definition.
Based on all of the above, Turner opined that Ovalle suffers from a behavioral abnormality
that makes him likely to commit predatory acts of sexual violence. The only other witness
to testify was Ovalle himself. He admitted to committing the offenses but claimed that he
was not attracted to children. Instead, he said alcohol and drugs were his trigger and that
accordingly, he would seek substance abuse treatment.
The jury unanimously found that Ovalle is an SVP. The trial court civilly committed
Ovalle for sex-offender treatment and supervision. See TEX. HEALTH & SAFETY CODE ANN.
§ 841.081. Ovalle filed a motion for new trial, which was overruled by operation of law.
This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
In his third and fourth issues, which we address first, Ovalle argues that there was
legally and factually insufficient evidence to support a finding beyond a reasonable doubt
that he is an SVP.
8
A. Standard of Review and Applicable Law
We review SVP 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.
“When reviewing the factual sufficiency of the evidence to support a 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. We do so by viewing all the evidence in a neutral light
and asking whether a jury was rationally justified in finding guilt beyond a reasonable
doubt. See In re Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011,
pet. denied).
Chapter 841 of the Texas Health and Safety Code (the SVP Act) provides a
procedure for the involuntary civil commitment of an SVP. See TEX. HEALTH & SAFETY
CODE ANN. §§ 841.001–.153; see also In re Commitment of Hull, No. 13-17-00378-CV,
2019 WL 3241883, at *1 (Tex. App.—Corpus Christi–Edinburg July 18, 2019, pet. filed)
(mem. op.) (detailing the background and purpose of SVP statutes in Texas). A person
can only be civilly committed if the factfinder determines, by a unanimous verdict and
beyond a reasonable doubt, that the person is an SVP. See TEX. HEALTH & SAFETY CODE
ANN. §§ 841.062, 841.081. An SVP is a person that (1) is a repeat sexually violent
offender, and (2) suffers from a behavioral abnormality that makes him likely to engage
9
in a predatory act of sexual violence. Id. § 841.003(a). A person is a repeat sexually
violent offender if the person is convicted of more than one sexually violent offense and
a sentence is imposed on at least one of those convictions. Id. § 841.003(b). A behavioral
abnormality is defined 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.” Id. § 841.002(2).
B. Analysis
Ovalle does not dispute the first SVP prong. The State moved for a directed verdict
that Ovalle is a repeat sexual offender, and Ovalle stated he had no objections. However,
Ovalle challenges the second SVP prong, arguing that the evidence was legally and
factually insufficient to show that he suffers from a behavioral abnormality.
See id. § 841.003(a), (b).
1. Legal Sufficiency
Ovalle first complains that Turner’s testimony did not sufficiently support his
diagnosis of Ovalle with pedophilic disorder. In other words, Ovalle argues that Turner’s
testimony did not establish that Ovalle was a “true pedophile”; instead, the evidence
suggested that Ovalle was “more of an opportunistic child sex offender.” Thus, Ovalle
argues the evidence is insufficient to support a finding that he has a behavioral
abnormality. Ovalle also argues that the mere fact he committed two sexual offenses
against prepubescent children, and one offense against a postpubescent child, does not
establish that he is a member of that “small but extremely dangerous group of sexually
violent predators” that Chapter 841 is meant to address. The State counters that when
10
the evidence is viewed in the light most favorable to the verdict, a rational trier of fact
could find the statutory elements required for commitment beyond a reasonable doubt.
We agree with the State.
In a civil commitment case, the State does not need to prove that Ovalle is a “true
pedophile” or that he is necessarily a member of the “small but extremely dangerous
group of sexually violent predators” that Chapter 841 is meant to address. Instead, the
State only needs to prove beyond a reasonable doubt that Ovalle is an SVP. See TEX.
HEALTH & SAFETY CODE ANN. § 841.062(a). Thus, the State needed to prove that Ovalle
(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. Id. § 841.003(a).
Because Ovalle does not dispute the first prong, the only fact issue that needed to be
resolved is whether Ovalle has a behavioral abnormality. Id. § 841.002(2).
Turner testified regarding all of the resources he consulted in forming his opinions,
including criminal records, court records, parole records, prison records, depositions, his
use of actuarial tests, and his interview with Ovalle. Turner then discussed the various
risk factors he considered and how they affected his overall conclusion regarding Ovalle’s
likelihood to commit a predatory act of sexual violence in the future. Turner opined that
Ovalle suffers from a behavioral abnormality that predisposes him to committing sexually
violent offenses; Ovalle was the only other witness at trial but he did not offer an opinion
as to whether he possessed a behavioral abnormality.
Assessing the evidence in the light most favorable to the verdict, we conclude there
was more than a scintilla of evidence to support the jury’s finding beyond a reasonable
11
doubt. See In re Commitment of Short, 521 S.W.3d at 911. We overrule Ovalle’s third
issue.
2. Factual Sufficiency
We first note that the State asserts that it is unnecessary to conduct a factual
sufficiency review in civil cases where the burden of proof is beyond a reasonable doubt.
See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.)
(abolishing factual sufficiency review in criminal cases). The State highlights that several
courts of appeal, including this Court, have adopted a single-sufficiency standard in
juvenile adjudication cases. See In re T.E.G., 222 S.W.3d 677, 678 (Tex. App.—Eastland
2007, no pet.); In re C.G., 162 S.W.3d 448, 452 (Tex. App.—Dallas 2005, no pet.); In re
H.R.C., 153 S.W.3d 266, 269 (Tex. App.—El Paso 2004, no pet.); In re J.D.P., 85 S.W.3d
420, 426 (Tex. App.—Fort Worth 2002, no pet.); In re T.K.E., 5 S.W.3d 782, 785 (Tex.
App.—San Antonio 1999, no pet.); In re K.L.C., 972 S.W.2d 203, 206 (Tex. App.—
Beaumont 1998, no pet.); but see In re C.C., 13 S.W.3d 854, 858 (Tex. App.—Austin
2000, no pet.); see also In re C.D., No. 13-12-00644-CV, 2013 WL 3203220, at *2 n.3
(Tex. App.—Corpus Christi–Edinburg June 20, 2013, no pet.) (mem. op.). However, as
the State concedes, neither this Court or the Texas Supreme Court has considered the
question of whether factual sufficiency review should be continued or abolished in civil
commitment cases. Thus, in an abundance of caution, we shall address Ovalle’s fourth
issue regarding the factual sufficiency of the evidence. See In re Commitment of Day,
342 S.W.3d at 213 (noting that “commitment proceedings are decided on evidence that
concerns the application of a ‘soft’ science that calls for the exercise of a considerable
amount of intuitive judgment on the part of experts with specialized training” and
12
concluding that the “consequences of an incorrect judgment are great enough that the
legal system should retain a factual sufficiency standard of review to minimize the risk of
an injustice”).
In our factual sufficiency analysis, we weigh all of the evidence in a neutral light to
determine whether the jury’s finding is so against the great weight and preponderance as
to be manifestly unjust. See id. at 206. But in cases where the burden of proof is beyond-
a-reasonable-doubt, “the risk of injustice is essentially slight.” Id. at 213.
Turner testified that Ovalle committed his first sexual offense while on community
supervision for a drug offense. Ovalle was twenty-two years old at the time of the first
offense while the victim was thirteen-years old. Ovalle entered the victim’s home through
the window early in the morning and they had sex on her bedroom floor. According to the
record, the girl expressed concern over getting pregnant, and Ovalle told her that if she
drank an entire bottle of liquor it would kill the baby. Ovalle told Turner during an interview
that he never told her to drink alcohol; however, Ovalle admitted that he was intoxicated
at the time of the incident. Ovalle also alleged that the girl told him that she was eighteen;
thus, he believed the sexual encounter was consensual.
Ovalle committed his second sexually violent offense shortly after being released
from prison for his first sexual offense. The second offense occurred when Ovalle was
twenty-five years old and married. But instead of being a post-pubescent teenager outside
of his family, the victim this time was his six-year-old stepdaughter. According to the
record, after Ovalle had sex with his wife, he took his stepdaughter to the couch and
fondled her vagina. During Turner’s interview, Ovalle denied that he touched the girl’s
vagina. Then, according to Turner, Ovalle denied having ever denied the allegation. He
13
only admitted that he touched her when he was confronted with the documents where he
pleaded guilty to touching her vagina.
Ovalle committed his third sexual offense just two years after committing, and while
still on probation for, his second sexual offense. This time, Ovalle’s victim was his six-
year-old niece. While he was babysitting her, Ovalle penetrated or attempted to penetrate
her anus with his penis. Ovalle denied the allegations to Turner and asserted that the
allegations were motivated by revenge because he was not getting along with the victim’s
father. Turner noted that in the deposition for the current case, Ovalle started by
conceding that he might have “accidentally brushed against her buttocks” but he denied
touching her with his penis. However, once again, Turner testified that Ovalle only
admitted to committing the offense when he was confronted with his plea of guilty.
Turner testified concerning Ovalle’s results on various tests. Using the DSM-5,
Turner diagnosed Ovalle with pedophilic disorder. According to Turner, “it is pretty clear”
that Ovalle is attracted to prepubescent children because in a two-year span, he
committed sexual offenses against two different six-year old children in his family.
Turner also diagnosed Ovalle with antisocial personality disorder. According to
Turner, Ovalle has displayed signs of antisocial personality disorder all throughout his life.
In his youth, he traded drugs for sex, was in a gang, and was arrested for theft, possession
of marijuana, and assault. Turner explained that psychopathy is an extreme degree of
antisocial personality disorder and that it was unusual for pedophiles to score high on the
psychopathy scale. However, Turner testified that Ovalle scored a 29 on the PCL-R,
placing him in the “high range of psychopathic characteristics and even in the upper range
of high range, approaching severe range.”
14
Turner also evaluated Ovalle on the Static-99R to measure his risk of committing
further sexual offenses in the future. Ovalle scored a four on this test, meaning he was in
the above-average range of risk; however, Turner testified that Ovalle’s range of risk is
even higher than what the Static-99R score indicated because that test score does not
take into consideration Ovalle’s risk factors, such as his pedophilia, offending while on
probation, having both prepubescent and postpubescent victims inside and outside of the
family, or Ovalle’s history of substance abuse.
Turner further testified concerning Ovalle’s risk factors. According to Turner,
sexual deviance and antisocial personality orientation represent the two largest risk
factors in predicting whether an individual will commit predatory acts of sexual violence.
Turner asserted that Ovalle’s pedophilia is a sexual deviance. Accordingly, because
Ovalle exhibits both sexual deviance and an antisocial orientation, Turner opined that
Ovalle is “especially dangerous.”
Turner also testified concerning some of the specific risk factors he identified when
reviewing Ovalle’s sexual offenses. Concerning the first offense against the thirteen-year-
old, Turner testified he was concerned with Ovalle’s failure to take responsibility for the
offense. Turner observed that Ovalle blamed the victim and changed his version of what
happened as time went on. Ovalle also denied the allegations on multiple occasions,
which Turner found to be problematic. Even more concerning, Turner opined that
committing a sexual offense like this while on community supervision “speaks directly to
the question of behavioral abnormality” because it reflects Ovalle’s lack of volitional
control over his behavior.
15
Regarding the second offense, Turner testified that committing this offense shortly
after being released from prison for the first offense is a significant risk factor. Turner also
testified to Ovalle’s lack of understanding how serious these offenses are and his failure
to understand the impact these offenses have on the victims.
Concerning the third sexual offense, Turner opined that it was very representative
of Ovalle’s overall behavioral abnormality because it demonstrates that Ovalle has
problematic sexual urges that he has trouble controlling. According to Turner, the third
offense is the most significant in determining Ovalle’s behavioral abnormality because of
the implications. Turner was on supervision and was “given another chance” and yet he
reoffended anyway, while other people were home. This suggests that Ovalle has sexual
urges that he has difficulty controlling. Turner also displayed concern that Ovalle was
intoxicated during all three offenses because substance abuse is related to an increased
risk for committing sexual offenses. Turner further noted that Ovalle had committed
sexual offenses against both family members and non-family members, which is alarming
because the “potential victim pool is getting larger.”
Turner next discussed some of Ovalle’s protective factors. Ovalle’s largest
protective factor is his age; Ovalle is now forty-three years old and recidivism rates for
sexual offenders decreases with age. It is also true that while Ovalle was in prison, he
obtained his GED and only received a few minor disciplinary actions. Turner indicated
other protective factors, such as Ovalle not having any male victims or victims that were
complete strangers to him. Turner additionally noted that Ovalle had attended an inpatient
sex offender program, which could be a protective factor. However, Turner testified that
it was not a protective factor in this particular case:
16
I think it’s important that he was given an opportunity to receive treatment.
He claims he was going to treatment and clearly that treatment did not
provide him with tools that he could use to not reoffend or he chose to not
use those tools. So that’s an important one. They all matter because they
all speak to just this irresponsibility and that speaks to antisociality.
Based on all of the above evidence, Turner opined that Ovalle suffers from a behavioral
abnormality that makes him likely to commit predatory acts of sexual violence.
No other experts testified, but Ovalle testified on his own behalf. He testified that
even though he initially denied the allegations because he was ashamed, he now admits
he committed the offenses. However, Ovalle denies ever being sexually attracted to
children; according to Ovalle, alcohol and drugs are his triggers. Ovalle claimed that he
plans on getting treatment for his substance abuse. He testified that he does not think
that he will ever commit another sexual offense.
Because we have already decided that the verdict is supported by legally sufficient
evidence, the risk of injustice is “essentially slight.” Id. at 213. Nevertheless, having
weighed all the evidence in a neutral light, we see no injustice in the jury’s verdict that
requires a new trial. See In re Commitment of Short, 521 S.W.3d at 911. Turner’s opinions
were based on accepted techniques and the basis for his opinions were explained to the
jury. The evidence is factually sufficient. We overrule Ovalle’s fourth issue.
III. THE JURY NOTES
In his first issue, Ovalle argues that the trial court’s response to the jury’s first note
constituted reversible error. In his second issue, Ovalle argues “[t]he lost and missing
second jury note has ‘probably prevented’ [Ovalle] from ‘properly presenting’ this case to
this Court” because the jury’s second note has been deemed “lost” by the district clerk
and thus was not included in the appellate record.
17
A. Standard of Review & Applicable Law
We review jury charge error for abuse of discretion. See Bargsley v. Pryor
Petroleum Corp., 196 S.W.3d 823, 829 (Tex. App.—Eastland 2006, pet. denied). The trial
court abuses its discretion when “its action is arbitrary, unreasonable, and without
reference to any guiding rules or principles.” Id. “When the trial judge responds
substantively to a jury question during deliberations, that communication essentially
amounts to an additional or supplemental jury instruction. . . . Therefore, in determining
whether the subject matter of the communication was proper, we look to the rules
governing instructions.” Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993). A
trial court must submit such instructions and definitions as shall be proper to enable the
jury to render a verdict. Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 482 (Tex. App.—
Corpus Christi–Edinburg 2008, pet. denied). An instruction is proper if it (1) assists the
jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.
Id.; see TEX. R. CIV. P. 278. A trial court has wide discretion to determine the sufficiency
of definitions and instructions. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791
(Tex. 1995).
To obtain a reversal of a judgment on the basis of trial-court error in civil cases,
the appellant must show that the alleged error “(1) probably caused the rendition of an
improper judgment; or (2) probably prevented the appellant from properly presenting the
case to the court of appeals.” TEX. R. APP. P. 44.1(a).
B. Analysis
In his first issue, Ovalle complains that the trial court’s response to the jury’s first
question during deliberation was erroneous and probably caused the rendition of an
18
improper judgment. More specifically, he argues that the trial court erred by failing to
clarify to the jury that it is the State’s burden to prove its case. The State claims that the
trial court did not err because the record reflects that there was no confusion as to who
carried the burden. We agree with the State.
Throughout the case, the jury was told numerous times that the State had the
burden to prove its case against Ovalle and that Ovalle had no burden to present any
evidence. The jury was told during voir dire, opening statements, and closing arguments
that the State needed to prove its case beyond a reasonable doubt. The trial court’s
written jury charge also instructed the jury as follows: “The burden of proof in this case
rests solely on the petitioner. This means the petitioner must prove each element of its
cause of action beyond a reasonable doubt.”
Despite these constant reminders, Ovalle insists that the jury’s first note suggests
that it was confused as to who carried the burden. During deliberation, the jury sent a
note to the judge asking, “Why didn’t the defense provide an expert witness to refute Dr.
Turner?” The trial court informed both parties’ attorneys that its normal response would
be to simply inform the jurors that they already have all of the evidence and that they
should continue to deliberate. The trial court asked if there were any objections to such
an instruction. Ovalle’s attorney responded, “No objection other than maybe just the
burden does rely [sic] on the State. Reminding them of that.” The trial court, believing that
such an instruction would be a “comment on the evidence,” overruled the requested
instruction. The trial court noted Ovalle’s objection but only instructed the jury that it
possessed all of the evidence and should continue deliberating.
19
Ovalle relies on two cases to argue that the trial court’s alleged error in overruling
his request probably caused the rendition of an improper judgment. See FPL Farming
Ltd. v. Envtl. Processing Sys., L.C., 383 S.W.3d 274 (Tex. App.—Beaumont 2012), rev’d
on other grounds, 457 S.W.3d 414, 426 (Tex. 2015) (concluding that the trial court’s error
was harmful “[b]ecause the charge required FPL to prove an element on which it did not
bear the burden of proof”); Bargsley, 196 S.W.3d at 830 (holding that the appellant was
probably caused harm because the jury charge improperly placed the burden on
appellant). However, we find these cases distinguishable because in both cases, the trial
court affirmatively misplaced the burden. In contrast, in the present case, the trial court
properly instructed the jury multiple times that the burden rests on the State to prove its
case beyond a reasonable doubt; furthermore, the trial court in the present case never
affirmatively misplaced the burden in its response to the jury note or at any other time. To
the contrary, the jury was properly instructed multiple times throughout the trial regarding
the proper burden of proof. Therefore, we cannot conclude that the trial court abused its
discretion by failing to give the requested instruction. See Bargsley, 196 S.W.3d at 830.
We overrule Ovalle’s first issue.
In his second issue, concerning the second jury note, Ovalle argues that he was
prevented from properly presenting his appeal. More specifically, he asserts that he was
properly presented from making his appeal because the second jury note was not
included in the clerk’s record due to it being deemed “lost.” The entirety of this argument
is made within a single paragraph and without referencing any relevant authority.
Accordingly, we find this issue to be inadequately briefed. See TEX. R. APP. P. 38.1(i). We
overrule Ovalle’s second issue.
20
IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Delivered and filed the
26th day of March, 2020.
21