In Re: The Commitment of David Basquez, Jr. v. the State of Texas ( 2023 )

Affirmed and Opinion Filed June 7, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00299-CV
IN RE THE COMMITMENT OF DAVID BASQUEZ, JR.
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. CV2070002
OPINION
Before Justices Partida-Kipness, Smith, and Breedlove
Opinion by Justice Breedlove
Appellant David Basquez Jr. appeals the trial court’s judgment civilly
committing him for treatment and supervision pursuant to the Texas Civil
Commitment of Sexually Violent Predators Act (SVP Act). See TEX. HEALTH &
SAFETY CODE ANN. § 841.003. In one issue, appellant argues that the trial court
erred by admitting evidence of unadjudicated or unsubstantiated sex offenses. We
affirm the trial court’s judgment.
I. SVP ACT COMMITMENT STANDARDS
In 1999, the Texas Legislature enacted the SVP Act to provide a “civil
commitment procedure for the long-term supervision and treatment of sexually
violent predators.” See id. § 841.001. The SVP Act aims to protect the public from
a “small but extremely dangerous group of sexually violent predators” who “have a
behavioral abnormality that is not amenable to traditional mental illness treatment
modalities and that makes the predators likely to engage in repeated predatory acts
of sexual violence.” Id. The SVP Act provides for the involuntary civil commitment
of a repeat sexual offender who is found to be a sexually violent predator. Id.
§§ 841.003(a), 081(a).
In a suit to commit a person as a sexually violent predator, the State must
prove beyond a reasonable doubt that the person (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), 062(a).
As relevant to the present case, a person is a repeat sexually violent offender if he
has been convicted of more than one sexually violent offense and a sentence was
imposed for at least one of the offenses. Id. § 841.003(b); see also id. § 841.002(8)
(defining “sexually violent offense”). A “behavioral abnormality,” as defined by the
SVP Act, is 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). A “predatory act” is an “act directed toward
individuals, including family members, for the primary purpose of victimization.”
Id. § 841.002(5).
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II. BACKGROUND
On March 12, 2020, the State filed its petition to have appellant deemed a
sexually violent predator and have him civilly committed for treatment and
supervision. See id. § 841.003, 041. The focus at appellant’s jury trial was
appellant’s sexual offenses and the doctor’s evaluation. See generally id. §841.061.
At trial, the State called Dr. Timothy Proctor and appellant to testify.
A. Appellant’s Sexual Offenses
The record showed appellant’s first sexual offense occurred in 1980 when
appellant was 17 years old. The victim in the case was G.F.,1 a boy who was seven
years old when the sexual abuse began. According to appellant’s testimony,
appellant performed oral sex on G.F. about four or five times. He described the
victim as “very playful and very promiscuous” and testified that he thought G.F.
wanted him to perform oral sex on him. Appellant was sentenced to three years’
imprisonment for this offense, probated.
The record showed appellant’s second sexual offense also occurred in 1980
when appellant was 17 years old. The victim in the case was V.F., G.F.’s older
brother who was nine years old when the sexual abuse began. Appellant testified
that the alleged incident with V.F. did not occur and that V.F. was lying. Appellant
was sentenced to three years’ imprisonment for this offense, probated.
1
We refer to all minor victims by the abbreviations used by appellant in his brief.
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The record showed appellant’s third sexual offense occurred in 1985 when
appellant was 21 years old. The victim in the case was D.B., a boy who was
approximately three years old when the sexual abuse began. Appellant admitted in
his testimony to performing oral sex on D.B. on several occasions. Appellant was
sentenced to 24 years’ imprisonment for this offense.
The record showed appellant’s fourth sexual offense occurred in 1989 when
appellant was 25 years old. The victim in the case was J.B., D.B.’s younger brother
who was approximately three or four years old when the sexual abuse began.
Appellant admitted in his testimony to performing oral sex on D.B. on several
occasions. Appellant was sentenced to 35 years’ imprisonment for this offense.
The record also includes evidence of two unadjudicated sexual offenses that
form the subject of this appeal as well as several additional non-violent sex-related
crimes and prison violations2. First, the State offered evidence that appellant
sexually assaulted RoRo, a cousin of G.F., after sexually abusing G.F. in RoRo’s
presence. Appellant denied the allegation regarding RoRo.
Second, according to appellant’s voluntary statement provided to the police
and admitted without objection, appellant allegedly attempted to sexually assault
2
Appellant does not argue on appeal that the trial court erred in admitting the testimony regarding
the additional non-violent sex-related crimes and prison violations, so we do not address their
admissibility.
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S.L., the six-year-old cousin of G.F., but was interrupted by S.L.’s mother.
Appellant also testified to this occurrence on cross-examination.
B. Doctor Proctor’s Testimony
Dr. Proctor is a board-certified forensic psychologist and licensed Sex
Offender Treatment Provider. The State hired him to conduct a risk assessment of
appellant and provide his opinions and conclusions regarding whether appellant
suffered from a behavioral abnormality. Dr. Proctor explained he reviews records
(including criminal, medical, and disciplinary records), interviews the individual
face-to-face, reviews deposition testimony from the appellant, and then conducts a
risk assessment to determine if the individual has a behavior abnormality.
Dr. Proctor testified that he interviewed appellant for three hours. Based on
that interview and his review of the records, Dr. Proctor concluded appellant suffers
from a “behavioral abnormality that makes him likely to commit predatory acts of
sexual violence.” He explained the biggest risk factor he identified in appellant was
“sexual deviance” and identified numerous additional risk factors he observed in
appellant. He also testified that appellant’s unwillingness to acknowledge the
problematic elements of his behavior and appellant’s insistence on blaming the
victims and minimizing or rationalizing his sexual attraction to prepubescent boys
are concerns for reoffending. He was similarly concerned with what he called a
“chronic long-term pattern” of offending rather than a single instance or a few
instances of sexual violence close together in time.
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In determining appellant’s diagnosis, Dr. Proctor considered appellant’s
criminal history, including juvenile criminal history, non-violent sexual offenses and
violations of probationary and parole conditions. Dr. Proctor also reviewed the four
sexually violent offenses appellant was convicted of and his denial of or excuses for
involvement in them. He stated the sexual assault offenses are considered to be
violent offenses according to statute.
Dr. Proctor testified he diagnosed appellant with pedophilic disorder.
Dr. Proctor would consider appellant “non-exclusive” because his sexual relations
included both adults and children. When asked if appellant still suffers from
pedophilic disorder, Dr. Proctor explained that the record was clear that appellant
has “a history of offending against multiple, pre-puberty male children, being
aroused as part of that sexuality,” and that the fact that he has not offended against
any children while in prison is irrelevant because there are no children in prison. He
stated that because of appellant’s sexual attraction to children and his history of
sexual deviance, appellant is predisposed to commit sexually violent offenses, at
high risk to sexually reoffend, and a “menace to the health and safety” of others.
C. Judgment and Appeal
The jury unanimously found beyond a reasonable doubt that appellant is a
sexually violent predator. The trial court civilly committed him for sex offender
treatment and supervision. Appellant appealed the trial court’s judgment on March
28, 2022. In one issue, appellant complains that the trial court committed reversible
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error by admitting evidence of unadjudicated or unsubstantiated sex offenses. In
response, the State argues that allowing Dr. Proctor to discuss something that was
already before the jury without objection was not reversible error.3
III. STANDARD OF REVIEW
SVP commitment cases require the State to prove the elements beyond a
reasonable doubt, as in a criminal case. Id. §§ 841.003(a), 841.062(a). Evidentiary
rulings are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v.
Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial court abuses its discretion when
it acts without regard for guiding rules or principles. Id. Even if the trial court
abused its discretion in admitting certain evidence, reversal is appropriate only if the
error was harmful, i.e., it probably resulted in an improper judgment. Id.An expert in an SVP Act civil commitment proceeding may disclose the
underlying facts or data upon which the expert bases his or her opinion if it is a type
relied upon by experts in the field in forming opinions on the subject. In re
Commitment of Butler, No. 05-19-01007-CV, 2021 WL 2525508, at *9 (Tex.
App.—Dallas June 21, 2021, no pet.) (mem. op.) (citing In re Commitment of Talley,
522 S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.] 2017, no pet.), and TEX. R.
EVID. 703, 705(a)). The reasoning for this is that having an expert explain the facts
3
We note that the State’s brief appears to address the testimony involving only S.L., which was
included in appellant’s voluntary statement to the police and admitted without objection, and not
the testimony regarding RoRo, which was not included in the statement.
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he or she considered, and how those facts influenced his or her evaluation, assists
the jury in weighing the expert’s opinion that the person has a behavioral
abnormality, which is the ultimate issue the jury must determine. Id. (citing
Commitment of Langford, No. 01-18-01050-CV, 2019 WL 6905022, at *3 (Tex.
App.—Houston [1st Dist.] Dec. 19, 2019, no pet.) (mem. op.)). But the expert’s
disclosure of these facts and data is subject to the same relevance constraints that
govern admission of other kinds of evidence. Id.; see also TEX. R. EVID. 705(d) (“If
the underlying facts or data would otherwise be inadmissible, the proponent of the
opinion may not disclose them to the jury if their probative value in helping the jury
evaluate the opinion is outweighed by their prejudicial effect.”); TEX. R. EVID. 403);
Talley, 522 S.W.3d at 748.
IV. DISCUSSION
Appellant argues that the trial court erred in admitting testimony regarding
unadjudicated sexual offenses against two separate victims: (1) S.L. and (2) RoRo.
Because the circumstances surrounding the admission of these offenses differ, we
address them separately.
A. Testimony Regarding S.L.
According to appellant’s voluntary statement, S.L. was approximately six
years old when he asked appellant to perform the same sexual act(s) upon him as
appellant had upon his cousin, G.F. Appellant was preparing to perform oral sex
upon S.L. when his mother entered the room and stopped them. During direct
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examination, Dr. Proctor testified to this incident over the objection of appellant.
His testimony is limited to the details that were previously provided by appellant in
his voluntary statement to police. This voluntary statement was admitted as a trial
exhibit without objection. Objections to the admission of evidence “will not result
in reversal when other such evidence was received without objection, either before
or after the complained-of ruling.” Mays v. State, No. 05-13-00086-CR, 2014 WL
3058462, at *2 (Tex. App.—Dallas July 8, 2014, no pet.) (not designated for
publication) (citing Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010)).
Because appellant’s graphic statement about his attempted crime against S.L. had
already been admitted into evidence without objection, any objection to
Dr. Proctor’s testimony, or appellant’s subsequent testimony, regarding the
unadjudicated offense against S.L. was harmless. See id.B. Testimony Regarding RoRo
Appellant objects to the additional admission of testimony regarding an
offense against RoRo that was not included in appellant’s previously admitted
voluntary statement. Because, unlike the allegations regarding S.L., appellant
properly and timely objected to any admission of evidence containing the allegations
regarding RoRo, we consider whether the trial court erred in admitting the testimony
over appellant’s objections. See id.Dr. Proctor testified as follows regarding RoRo: “The police report indicates
that it was one occasion and that after sexually offending against [G.F.], Mr. Basquez
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then turned on [RoRo] and performed oral sex on him, as well.” The State also
elicited testimony regarding the relevance of the unadjudicated sexual offenses:
STATE: So first off, beyond conviction, is it appropriate for an expert,
when conducting a behavioral abnormality evaluation, to take into
account offenses that did not lead to a conviction?
DR. PROCTOR: Yes.
STATE: And why is that?
DR. PROCTOR: Well, certainly you don’t put the same weight on an
allegation or a charge that you would on a conviction, but the research
points to that it’s known that not every, obviously sexual offenses
results in a conviction and that instruments like the ones I used, that
we’ll speak about later, instruct you to look at not only history of
convictions but were they ever charged with other sexual offenses or
accused [of] other sexual offenses and what were the characteristics of
those. Research about sexual offending considers those kinds of data
points in order to try to get as full a picture as possible of possible
offending. So that is why I do so.
In Montgomery v. State, the Texas Court of Criminal Appeals created criteria
for evaluating whether the danger of unfair prejudice substantially outweighs the
probative value of the proffered evidence. 810 S.W.2d 372, 392 (Tex. Crim. App.
1990) (op. on reh’g). Our sister courts have applied a modified version of the
Montgomery test in SVP cases to address the admission of evidence of unadjudicated
offenses; we apply that test here. See, e.g., Commitment of Renshaw, 598 S.W.3d
303, 314–15 (Tex. App.—Texarkana 2020, no pet.); Commitment of S.D., No. 10-
17-00129-CV, 2020 WL 103721, at *5 (Tex. App—Waco Jan. 8, 2020, no pet.)
(mem. op.); Commitment of Flores, No. 13-17-00258-CV, 2018 WL 1755876, at *4
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(Tex. App.—Corpus Christi Apr. 12, 2018, no pet.) (mem. op.); Commitment of
Stuteville, 463 S.W.3d 543, 555 (Tex. App.—Houston [1st Dist.] 2015, pet. denied);
Commitment of Ford, No. 09-11-00425-CV, 2012 WL 983323, at *2 (Tex. App.—
Beaumont Mar. 22, 2012, no pet.) (mem. op.).
Under the modified Montgomery test, we consider the following: (1) the
probative value of the evidence; (2) the potential of the evidence to impress the jury
in some irrational way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence. Renshaw, 598 S.W.3d at 314–15. “[W]hen the
record reveals one or more such relevant criteria reasonably conducing to a risk that
the probative value of the tendered evidence is substantially outweighed by unfair
prejudice,” then the trial court abused its discretion in admitting the evidence.
Montgomery, 810 S.W.2d at 393 (footnote omitted). Here, appellant concedes that
the evidence has some probative value and that a relatively brief amount of time was
expended to develop the evidence. Therefore, we address only the two remaining
contested criteria: (1) the potential of the evidence to impress the jury in some
irrational way and (2) the proponent’s need for the evidence.4
4
However, even if appellant had contested the probative value of the evidence, we would hold that
the evidence is highly probative and weighs strongly in favor of its admission. See Renshaw, 598
S.W.3d at 314–15 (“In civil commitment cases, evidence of uncharged sexual offenses, when it is
used by experts, is ‘highly probative and helpful to the jury in explaining the basis of [the expert’s]
opinion that [a person] has a behavioral abnormality that makes him likely to engage in a predatory
act of sexual violence.’”) (quoting Stuteville, 463 S.W.3d at 556) (brackets in original).
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While the details of the allegation regarding RoRo arguably had the potential
to impress the jury, the trial court provided the contemporaneous limiting instruction
requested by appellant at trial.5 “Absent record evidence to the contrary, we presume
that the jury followed the court’s limiting instructions.” In re Commitment of Millar,
No. 05-18-00706-CV, 2019 WL 3162463, at *2 (Tex. App.—Dallas July 16, 2019,
no pet.) (citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex.
2003)). Also, the record before us shows that the allegation was not nearly as graphic
as the details of appellant’s four convictions or of the admitted-to unadjudicated
offense against S.L. Thus, the trial court did not abuse its discretion in finding that
the unadjudicated offense against RoRo would not impress the jury in an irrational
manner. See Renshaw, 598 S.W.3d at 315 (holding that while the details of the
unadjudicated offenses had the potential to impress the jury, those allegations were
not nearly as sordid as the details of the defendant’s convictions).
5
The court’s instruction stated:
Members of the Jury, the Defense has requested a limiting instruction about the
disclosure of hearsay testimony in this case. So I am going to instruct you as
follows. Hearsay is a statement made by a person at some time, other than while
testifying at the current trial or hearing, which a party offers into evidence to prove
the truth of the matter asserted in the statement. Generally hearsay is not admissible
as evidence during the trial. However, in this case certain hearsay information
contained in records was reviewed and relied on by experts and will be presented
to you through that expert’s testimony. Such hearsay information is being
presented to you only for the purpose of showing the basis of the expert’s opinion
and cannot be considered as evidence to prove the truth of the matter asserted. You
may not consider this hearsay information for any other purpose, including whether
the information alleged in the records is true.
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Finally, the court did not abuse its discretion in finding that there was a need
to present evidence of the unadjudicated offense against RoRo to show the basis of
Dr. Proctor’s opinion that appellant suffered from a behavioral abnormality.
Without this offense, the jury would not be basing its verdict on “the full picture of
[appellant’s] sexual deviancy,” see id., which was necessary to establish the basis
for Dr. Proctor’s opinion regarding appellant’s status as a sexually violent predator.
Further, Dr. Proctor testified that the scientific instruments and tests he relied upon
in forming the basis of his opinion, as well as the prevailing research, consider
unadjudicated offenses, which is why they are important to the jury’s understanding
of appellant’s likelihood of reoffending. The trial court could have reasonably
concluded that the facts and details related to the offense against RoRo “would be
helpful to the jury in weighing [appellant’s] testimony and [the expert’s] testimony,
and in explaining the basis for [the expert’s] opinion[s] that [appellant] suffers from
a behavioral abnormality.” See id. at 316 (quoting Stuteville, 463 S.W.3d at 556)
(brackets in original). Thus, this factor also weighs in favor of admission. See id.
at 315.
Based on the record before us, we conclude that the trial court did not abuse
its discretion in refusing to find that the probative value of this evidence was
substantially outweighed by the danger of unfair prejudice. “Given the purpose for
admitting this evidence and the trial court’s limiting instructions, we hold that the
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trial court did not abuse its discretion by admitting evidence of uncharged offenses.”
Id. (quoting Stuteville, 463 S.W.3d at 556).
V. CONCLUSION
We affirm the trial court’s judgment.
220299f.p05
/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE THE COMMITMENT OF On Appeal from the Criminal District
DAVID BASQUEZ, JR. Court No. 1, Dallas County, Texas
Trial Court Cause No. CV2070002.
No. 05-22-00299-CV Opinion delivered by Justice
Breedlove. Justices Partida-Kipness
and Smith participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 7th day of June 2023.
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