COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE COMMITMENT OF

LARRY JOHNSON, 

 Appellant. 

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§ 

§ 

§ 

No. 08-22-00222-CV

Appeal from the 

427th Judicial District Court 

of Travis County, Texas 

(TC# D-1-GN-20-007812) 

O P I N I O N 

BACKGROUND

Appellant Larry Johnson was found to be a sexually violent predator and civilly committed 

as such in accordance with the Texas Health and Safety Code.

1 See TEX. HEALTH & SAFETY 

CODE ANN. §§ 841.003, 841.081. In a single issue, Appellant argues the trial court erred in 

admitting evidence of his adjudicated and unadjudicated sex offenses. We affirm.

Factual Background 

A petition was filed to civilly commit Appellant as a sexually violent predator and a jury 

trial was held. To establish Appellant is a sexually violent predator, the State needed to prove he 

1 This case was transferred from our sister court in Travis County, Texas pursuant to the Texas Supreme 

Court’s docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the 

Third Court of Appeals to the extent it might conflict with our own. See TEX. R. APP. P. 41.3. 
2

is a repeat sexually violent offender and has a “behavioral abnormality” that makes him “likely to 

engage in a predatory act of sexual violence.” See TEX. HEALTH & SAFETY CODE ANN.

§ 841.003(a).

At trial, the State offered two expert witnesses to establish Appellant as a sexually violent 

predator. The State first offered Dr. Stephen Thorne, a psychologist, who has performed around 

300 behavioral abnormality evaluations in Texas. The State also offered Dr. Michael Arambula, a 

psychiatrist, who has performed around 250 behavioral abnormality evaluations in Texas. Both 

doctors concluded Appellant suffers from a behavioral abnormality that makes him likely to 

engage in a predatory act of sexual violence.

Dr. Thorne discussed the records he reviewed and relied on relating to Appellant’s prior 

psychiatric diagnoses. Appellant objected to hearsay. The State responded the testimony was a 

Texas Rule of Evidence 705 exception because Dr. Thorne reviewed and relied upon the 

information as an expert. The trial court overruled the objection. Appellant then requested to take 

Dr. Thorne on voir dire for a Rule 403 and 704 hearing. The trial court agreed, excused the jury,

and a voir dire examination of Dr. Thorne was conducted.

Dr. Thorne was questioned outside the presence of the jury as to the facts and data 

contained in the records he reviewed and relied upon in forming his opinion, and how best to 

communicate that opinion to the jury. Dr. Thorne was asked whether he could adequately explain

how he reached his findings without being able to go into details of Appellant’s offenses.

Dr. Thorne responded that it would be very challenging to adequately explain his findings without 

getting into the facts and details of the offenses. According to Dr. Thorne, without the details, his

diagnostic considerations would be on a “rather general level” and his findings would be difficult 

to support without the details of the offenses, which could render his expert opinion speculative.
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Overall, Dr. Thorne testified to the importance of the underlying facts and details of 

Appellant’s adjudicated and unadjudicated sexual offenses in identifying the risk factors, 

Appellant’s diagnoses, and how to communicate his expert opinion to the jury. After considering 

the hearing testimony, the trial court again overruled Appellant’s hearsay objection and determined 

the testimony regarding the underlying facts and details of the offenses was more probative than 

prejudicial and would be admitted as basis evidence for the expert testimony.

The testimony of Dr. Thorne resumed, and Appellant requested a hearsay in limine 

instruction be read to the jury. With no objection from the State, the trial court instructed the jury 

as follows:

Larry Johnson, respondent, requests this Court to advise the jury as follows by the

inadmissibility of hearsay. The respondent has requested a limiting instruction 

about the disclosure of hearsay facts or data underlying the expert’s opinion.

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 

that the matter asserted in the statement. Generally, hearsay is not admissible as

evidence during trial. However, in this case, certain hearsay information contained 

in records was reviewed and relied upon by experts and will be presented to you 

through that expert’s testimony. Such hearsay evidence 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 facts 

alleged in the records are true.

Dr. Thorne explained that in conducting a behavioral abnormality evaluation, he looks at 

risk factors, which include a person’s history, life, and offenses, which have all been shown to 

relate to future sexual reoffending. According to Dr. Thorne, sexual deviancy and antisocial 

behavior are two of the major “umbrella factors” across studies of risk factors in a behavioral 

abnormality evaluation. Dr. Thorne found both factors present in Appellant. Dr. Thorne explained 

Appellant has committed multiple sexual offenses against multiple victims, and Dr. Thorne stated 

he reviewed the facts and details of Appellant’s sexual offenses in making his determination. 
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According to Dr. Thorne, the facts and details of sexual offenses is where information relating to 

the risk factors are present—i.e., the type of victims chosen, the gender of the victims, the nature 

of the sexual behavior or sexual deviancy against those victims, and the access one has to his 

selected victims. Because not every sexual offense is the same, Dr. Thorne explained it goes 

beyond just the named offense, and thus, the details and facts of the sexual offenses are important

to the evaluation.

Dr. Thorne then described the facts and details of the offenses in the record he used during

his evaluation. As to a 1999 aggravated sexual assault offense, he described:

The State: And can you explain what the records indicate happened 

with this offense?

Dr. Thorne: Yes. That Mr. Johnson sexually abused, I believe it was, a 

19-year-old female named Casi. She was an escort working 

for an escort service. He called and requested someone to 

come to his house from this escort service. Casi came. When 

he arrived -- or when she arrived, he didn't have the money, 

ended up forcing her into sexual activity, in terms of -- and 

nonsexual violence as well. He choked her with his hands, 

choked her with a belt or a cord. Or I think it was called a 

rope or a cord. It was different things. He gave her bruises. 

He pulled her hair. He made her perform oral sex on him on 

multiple occasions. He told her that if she didn't make him 

ejaculate and swallow the ejaculate within 30 seconds, he 

was going to kill her. He put his penis into her vagina. Just 

again, sexual deviancy but also maybe -- part of sexual 

deviancy but also nonsexual violence towards Casi as well.

The State: And so looking just at this offense, what risk factors did you 

find or what did you find significant with this?

Dr. Thorne: Well, there is an identifiable victim that he engaged in 

sexually -- sexual violence and deviancy with or against. 

And also that he had no prior relationship with Casi. He had 

never met her before. So Casi is what is considered a stranger 

victim. And the research suggests that sex offenders who 

select stranger victims as opposed to victims in their own 
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family or victims who they’ve had a prior relationship with, 

they’re at greater risk for sexual reoffending in the future.

The State: And then . . . [w]hat sentence did Mr. Johnson receive in that 

case?

Dr. Thorne: In that case, he received a five-year prison sentence.

Dr. Thorne then explained the facts and details of a 2007 attempted sexual assault 

offense:

The State: And what do the records indicate happened with [the victim,] 

Aracely?

Dr. Thorne: That he, again, didn’t have money -- which again, Aracely 

was from an escort service in Austin. She came to his 

residence. He didn’t have the money to pay her. He forced 

her onto the bed. He, I think, pulled her shirt down, grabbed 

her breast, put his hand in her pants trying to grab her vagina. 

He had, what has been referred to as, a knife in his shirt 

pocket. And Aracely said she thought he was grabbing for 

that. She grabbed him, got the knife and she ended up getting

away and leaving the residence.

The State: What risk factors did you see in this offense?

Dr. Thorne: Similar to what we’ve described. So now you have a second 

victim, who is also an escort, also a stranger victim, 

somebody who he had no prior relationship with, again, 

engaged in acts of sexual deviance and violence with her. 

But also what’s important is, this offense against Aracely 

took place after Mr. Johnson was convicted of the initial 

offense against Casi that we just talked about. So he 

committed that first offense in November of ‘99, received a 

five-year prison sentence, was released from prison. And 

then in August of 2007, committed this offense against 

Aracely. In the literature, what they call that is persistence 

after punishment -- is kind of the terminology. And that’s 

thought to be -- one of the most significant risk factors when 

looking at these cases is individuals who have committed a 

sex offense, been, quote/unquote, punished or convicted and 

then go on to reoffend and do it again. So that’s different 

than -- I’m not trying to minimize it the other way. But if an 

individual has two victims before they’re ever caught and 

punished, we look at that differently than if they have one 
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victim, they’re caught and punished and then they go off and 

have another victim.

The State: And what sentence did he receive for this sentence?

Dr. Thorne: A fifteen-year prison sentence.

As for unadjudicated offenses, Dr. Thorne considered the facts and details of a 1999 

allegation in which Appellant had Priscilla, an escort, come over to his residence, claimed he did 

not have any money, rolled over on top of her on the bed, held her arms behind her back, put his 

hands inside her shirt, and grabbed her breast. And another occurrence in 2007, in which Appellant 

was alleged to have had Maria, an escort, over at his residence, claimed he did not have any money, 

held a knife against her, and touched her breast from underneath her shirt. Dr. Thorne explained 

the two unadjudicated allegations factored into his opinion because they contributed to the showing 

of an attraction to the same type of victim selection and abuse—an attraction to calling escorts, not 

having the funds, then sexually abusing them by threatening violence, which was relevant to what

access he has to the particular type of victim he selects. In other words, as Dr. Thorne explained, 

Appellant

[C]an potentially have access to the same type of victim the day he’s back in the 

community because he can call on a phone and request an escort to come over. You 

take that into consideration of what type of access will Mr. Johnson have to the type 

of victim that he has selected over the years. And so it’s just something to take into 

consideration.

Dr. Thorne also diagnosed Appellant with sexual sadism—which is sexual arousal by the pain, 

suffering, or humiliation of another—and antisocial personality disorder.

Similarly, Dr. Arambula testified to the methodology used in his behavioral abnormality 

evaluations, and what was employed in respect to his evaluation of Appellant. Dr. Arambula 

explained he spends a significant amount of time obtaining information about the offenses an 
7

individual has committed, and his evaluation in this case is based entirely on the facts and data 

contained in the records provided to him.

Then, Appellant extended the same objections made during Dr. Thorne’s testimony to 

Dr. Arambula’s testimony. The jury was excused and a voir dire examination of Dr. Arambula was 

conducted. Appellant relodged his running hearsay objection, which the trial court noted. 

Dr. Arambula’s testimony resumed in the presence of the jury.

Dr. Arambula testified to the same factors as Dr. Thorne—Appellant’s sexual deviancy, 

sexual sadism, antisocial behavior, prior convictions and unadjudicated offenses. He testified to 

the facts and details of the 1999 aggravated sexual assault offense against Casi, the 2007 attempted 

sexual assault offense against Aracely, the unadjudicated offense in 2007 against Maria, and two 

other cases that preceded the two convictions, which all involved escorts. We do note that 

Dr. Arambula did not go into as much detail as Dr. Thorne on any of the offenses during his 

testimony. He nevertheless discussed that he looks for similarities between the circumstances and 

victims, which is where the facts and details come into play. He confirmed he relied upon the facts 

and details of Appellant’s adjudicated and unadjudicated offenses in making his determination that 

Appellant is a sexually violent predator.

Procedural Background

After a jury trial, the jury unanimously found, beyond a reasonable doubt, that Appellant 

is a sexually violent predator, and Appellant was civilly committed. Appellant filed a motion for 

new trial. This appeal followed.

DISCUSSION

In a single issue, Appellant argues the trial court abused its discretion in admitting the facts 

and details of his adjudicated and unadjudicated sexual offenses. We disagree.
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Standard of Review

We review the trial court’s evidentiary rulings for an abuse of discretion. In re Commitment 

of Hull, No. 13-17-00378-CV, 2019 WL 3241883, at *8 (Tex. App.—Corpus Christi July 18, 

2019, pet. denied) (mem. op.). An abuse of discretion occurs when a trial court fails to follow 

guiding rules and principles. Id. Reversal is warranted only if the error probably caused the 

rendition of an improper judgment. Id. In making this determination, we evaluate the entire case, 

considering the role the evidence played in the context of the trial. Id.

Applicable Law

To civilly commit a person as a sexually violent predator, the State must prove 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(a). Under Texas Rule of Evidence 703, “[a]n expert may base an opinion on facts or 

data in the case that the expert has been made aware of, reviewed, or personally observed.”

TEX. R. EVID. 703. An expert in a Chapter 841 civil commitment proceeding may disclose details 

regarding the underlying facts or data the expert relied on in arriving at his or her opinion. In re 

Commitment of Renshaw, 598 S.W.3d 303, 314 (Tex. App.—Texarkana 2020, no pet.) (citing In 

re Commitment of Stuteville, 463 S.W.3d 543, 554-55 (Tex. App.—Houston [1st Dist.] 2015, pet. 

denied); see TEX. R. EVID. 705(a) (Stating an Opinion Without Disclosing the Underlying Facts or 

Data). However, “before an expert states an opinion or discloses the underlying facts or data, an 

adverse party in a civil case may . . . be permitted to examine the expert about the underlying facts 

or data,” which must take place outside the jury’s presence. TEX. R. EVID. 705(b) (Voir Dire 

Examination of an Expert About the Underlying Facts or Data). “If the underlying facts or data 

would otherwise be inadmissible, the proponent . . . may not disclose them to the jury if their 
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probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect, 

[and if] the court allows the proponent to disclose those facts or data the court must, upon timely 

request, restrict the evidence to its proper scope and instruct the jury accordingly.” TEX. R. EVID.

705(d) (When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing 

the Jury).

The Beaumont Court of Appeals first established Rule 705(d) affords a trial court discretion 

to admit “facts and details” evidence because such evidence assists the jury in weighing expert 

testimony. In re Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. 

denied) (“Having each expert to explain which facts were considered and how those facts 

influenced his evaluation assisted the jury in weighing each expert’s testimony and the opinion 

each offered regarding the ultimate issue in the case.”); TEX. R. EVID. 705(a)(“expert may state an 

opinion--and give the reasons for it--without first testifying to the underlying facts or data. But the 

expert may be required to disclose those facts or data on cross-examination”).

In Day, the State developed, through three expert witnesses, “testimony about the details 

of [prior] offenses for which Day was imprisoned, the commission of other crimes and bad acts 

for which he was not convicted, and his behavior while in prison.” Day, 342 S.W.3d. at 197. Day 

argued the details of the offenses and other bad acts created “outrage in the jury without adding to 

the determination of a behavioral abnormality.” Id. at 198. The Beaumont court disagreed, and 

explained “the information each expert considered and the analytical process each expert 

employed differed from [one another]”, and “[h]aving each expert explain which facts were 

considered and how those facts influenced [their respective] evaluation assisted the jury in 

weighing each expert’s testimony and the opinion each offered regarding the ultimate issue in the 

case”—determining whether to civilly commit Day as a sexually violent predator. Id. at 199. The 
10

court also emphasized that it presumed the jury followed the trial court’s limiting instruction and 

ultimately held the trial court acted within its discretion in allowing the experts to discuss the 

details of the offenses and other bad acts committed within the records they reviewed. Id.

Since Day, Texas appellate courts have adopted this reasoning and have consistently held 

that facts and details evidence in sexually violent predator cases assists the jury in weighing an

expert’s testimony by explaining the basis for the expert’s opinion. See Stuteville, 463 S.W.3d at 

555-56; see Renshaw, 598 S.W.3d at 314-316; see In re Commitment of Tesson, 413 S.W.3d 514, 

519-521 (Tex. App.—Beaumont 2013, pet. denied); see In re Commitment of S.D., 

No. 10-17-00129-CV, 2020 WL 103721, at *4-5 (Tex. App.—Waco Jan. 8, 2020, no pet.) (mem. 

op.); see In re Commitment of Bailey, No. 03-17-00312-CV, 2018 WL 4140850 at *3-4 

(Tex. App.—Austin Aug. 30, 2018, no pet.) (mem. op.); see In re Commitment of Johnson, 613 

S.W.3d 613, 618-19 (Tex. App.—San Antonio 2020, pet. denied).

Analysis

Appellant argues the trial court erred in admitting the facts and details of his adjudicated 

and unadjudicated sex offenses for the limited purpose of helping the jury evaluate the expert 

opinions because the probative value was outweighed by its prejudicial effect. Appellant requests

we reject Day because it essentially eliminates the probative-versus-prejudice balancing test of 

Rule 705(d) and the jury would inevitably consider the facts and details “for their truth and

improper purposes beyond the limited purpose of evaluating the expert opinions,” which according 

to Appellant, “probably ‘helped’ the jury arrive at its verdict[.]” Appellant maintains, “it is difficult 

to imagine how the Rule 705(d) limiting instruction would have prevented the jury from doing 

so[.]”
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Here, the trial court heard Dr. Thorne’s and Dr. Arambula’s methodology of reviewing the 

records, the application of the facts and details of Appellant’s offenses to their expert opinions,

and why that information was important for the jury in understanding their respective expert

opinions. Before the jury heard any facts and details evidence, the trial court applied a balancing 

test and held voir dire examinations outside the presence of the jury, in compliance with Texas 

Rule of Evidence 705(b). See TEX. R. EVID. 705(b). After considering the hearing testimony, the 

trial court determined the testimony regarding the underlying facts and details of the offenses was

more probative than prejudicial and would be admitted as basis evidence for the expert testimony. 

Before allowing the experts to disclose any facts and details in the presence of the jury, the trial 

court provided a limiting instruction, in compliance with Texas Rule of Evidence 705(d). See

TEX. R. EVID. 705(d). The trial court explained to the jury that the information contained in the 

records was reviewed and relied upon by the experts and would be presented to them through the

expert’s testimony, and articulated that such evidence was being presented for the purpose of 

showing the basis of the expert’s opinion and could not be considered as evidence to prove the 

truth of the matter asserted. The trial court specifically instructed the jury that they could not 

consider the hearsay information for any other purpose, including whether the facts alleged in the 

records are true. In addition to the voir dire examinations and verbal limiting instruction, the trial 

court also provided the jury with a written limiting instruction in the jury charge. The written, 

special limiting instruction read:

In this case, certain hearsay information contained in records reviewed by an expert 

or experts was admitted before you through expert testimony. Such hearsay was 

admitted 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.
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Appellant admits he relies “mostly on common sense and also on concurring and dissenting 

opinions” from the U.S. Supreme Court in support of his contentions, which discuss that it is 

“nonsense” for courts to indulge in the presumption that juries do not consider facts and details 

evidence for its truth.

2 However, unless the record demonstrates otherwise, we presume the jury 

followed the trial court’s limiting instructions. See In re Commitment of Day, 342 S.W.3d at 199. 

The record does not demonstrate anything to the contrary. Without more than Appellant’s reliance 

on assertions, “common sense,” and dicta, we presume the jury followed the trial court’s limiting 

instruction.

In a Chapter 841 civil commitment proceeding, the details of a sex offender’s prior criminal 

offenses are admissible for the purpose of explaining the expert’s opinion, and an expert may 

disclose the facts and details regarding the underlying facts the expert relied upon in reaching his 

opinion, subject to the trial court’s application of a balancing test and providing any requested 

2 Appellant also relies on a Texas Criminal Court of Appeals (CCA) decision wherein the CCA articulated factors 

that should be accounted for in a Rule 403 balancing test, which the CCA described as asking: “how great is the 

proponent’s ‘need’ for the extraneous transaction?” Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 

1990) (op. on reh’g). The CCA explained this inquiry breaks down into three subparts: “Does the proponent have 

other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If 

so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? When the 

proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous 

misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versusprejudicial balance.” Id. at 390. Appellant focuses on the subpart that asks whether the proponent has other available 

evidence to establish the fact of consequence that the extraneous misconduct is relevant to show. For example, 

Appellant takes issue with Dr. Thorne’s testimony wherein he shared that Appellant told Casi “if she didn’t make him

ejaculate and swallow the ejaculate within 30 seconds, he was going to kill her” which according to Appellant, “added 

little, if anything, to the ‘fact of consequence’ for which the ‘facts and details’ evidence was admitted [in] helping the 

jury evaluate whether the state experts had an adequate basis for saying that these ‘facts and details’ showed ‘sexual 

deviancy’ and ‘sexual violence’ committed against a ‘stranger” victim.’” We disagree. We find it was reasonable for 

the trial court to find that Appellant threatening to kill if his victim did not commit the sexual acts he was commanding 

her to perform, was more probative than prejudicial in assisting the jury to understand the basis of the expert’s opinion 

regarding Appellant’s behavioral abnormality, which here, was his sexual deviancy and sexual violence against a 

specific type of victim. This related to Appellant’s increased risk to sexually reoffend and to the ultimate issue of his 

behavioral abnormality. In any case, we find Montgomery distinguishable and inapplicable. In that case, the challenged 

evidence was extraneous offense evidence under Texas Rule of Evidence 404(b) and Montgomery was convicted of 

two counts of indecency with a child; it was not a civil commitment of a sexually violent predator case as we have 

here, and Rule 705 was not at issue as it is here. Id. at 374-397. Accordingly, we find Appellant’s reliance on 

Montgomery is misplaced.
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necessary limiting instructions. See In re Commitment of Anderson, 392 S.W.3d 878, 882-83

(Tex. App.—Beaumont 2013, pet. denied). In a sexually violent predator case, “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. Accordingly, in civil commitment cases, when evidence of sexual offenses is used 

by experts, it can be 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. Id. at 556. For this reason, experts in civil commitment cases may disclose 

the underlying facts and details an expert relied on, including adjudicated and unadjudicated sex 

offenses. Renshaw, 598 S.W.3d at 314-316.

The complained of evidence here was offered to assist the jury in understanding the basis 

of the experts’ opinions regarding Appellant’s behavioral abnormality, which here, was mostly 

based on Appellant’s sexual deviance and sexual violence against “stranger” victims which, 

according to the experts’ opinions, were factors that increased Appellant’s risk to sexually reoffend 

and contributed to their conclusion that Appellant is a sexually violent predator. The trial court 

employed a balancing test in its application of voir dire examinations, provided verbal and written 

limiting instructions, and allowed the evidence for the limited purpose of assisting the jury in

understanding the basis of the experts’ opinions. The trial court was consistent with case law and 

statutory law in allowing such evidence, and we decline to veer from established Texas precedent.

We conclude the trial court could have reasonably determined the probative value was not 

outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in 

admitting the underlying facts and details of Appellant’s adjudicated and unadjudicated sex 

offenses for the limited purpose of assisting the jury in weighing the experts’ opinions on the 
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ultimate issue of Appellant’s behavioral abnormality. Accordingly, Appellant’s sole issue is 

overruled. 

CONCLUSION

For these reasons, we affirm.

 YVONNE T. RODRIGUEZ, Chief Justice

June 19, 2023 

Before Rodriguez, C.J., Palafox, and Soto, JJ.