### Opinionissued March 10,2015

InThe

### ~ourt

## of**~peals** ForThe

NO. 01-13-00921-CV

INRE COMMITMENTOFDENNIS RAYSTUTEVILLE

OnAppeal from the435th DistrictCourt Montgomery County,Texas TrialCourtCase No. 12-12-13060-CV 

### OPINION This case involves a civil commitment pursuant to the Sexually Violent Predator Act ("the SVP Act"). 1 

### A jury found that Dennis Ray Stuteville is a sexually violent predator as defined in the SVP Act, and the trial court rendered a 

### fmal judgment and an order of civil commitment. In seven appellate issues, See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001-.151 

### (West 2010 & Supp. 2014).

### Stuteville argues that: (1) there is legally insufficient evidence that he has "serious difficulty controlling his behavior"; (2) there is factually insufficient evidence that he has "serious difficulty controlling his behavior"; (3) the trial court abused its discretion when it denied his request for a separate jury instruction on "serious difficulty controlling behavior''; (4) the trial court abused its discretion by admitting evidence ofuncharged offenses allegedly committedby Stuteville forthe limited purpose ofexplaining the basis ofthe State's expert's opinion; (5) the trial court abused its discretion by admitting evidence of details ofthese uncharged offenses, as well as details of the charged offenses for the limited purpose of explaining the basis of the expert's opinion; (6) the trial court etred when it granted the State's motion for a directed verdict on the issue ofwhether he is a "repeat sexually violent offender"; and (7) the trial court improperly commented

onthe weightofthe evidence during voir dire. We affirmthe trial court'sjudgmentand orderofcivil commitment.2 Background Summary 

### On June 7, 2004, Stuteville pleaded guilty to two charges ofindecency with

achildby sexual contact, and three charges ofindecency with a child by exposure. The court assessed Stuteville's punishment at ten years' confinement in the

2 This appeal, originally filed in the Ninth Court ofAppeals, Beaumont, Texas, was transferred to the First Court ofAppeals, Houston, Texas. See TEX. Gov'TCODE ANN. §73.001 (West 2013) (authorizingtransfer ofcases).

2Institutional Division ofthe Texas Department ofCriminal Justice ("TDCJ") with respectto each ofthetwo charges ofindecency with a childby sexual contact, and five yeats' confinement in TDCJ with respect to each of the three charges of indecency with a child by exposure. The sentences in all five cases ran concurrently. Stuteville was scheduled to be released from 

### IDC1 on December 23, 2013. On December 14, 2012, the State filed a petition in the 435th District Court in Montgomery County to civilly commit Stuteville as a sexually violent predator under the SVP Act,3 alleging that he was a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual Violence. See TEX. HEALTH & SAFETY CODE ANN. § 84L003(a) (West Supp. 2014). While at TOCJ, Stuteville was evaluated by forensic psychologistDr. Jason D. Dunham, who concludedthat Stuteville metthe statutoryrequirementofbehavioral abnormality. The trial court determined that Stuteville was indigent and appointed him counsel who filed an answer. Two witnesses testified at the jury trial: Dr. Lisa Clayton, the State'sexpertwitness, and Stuteville.

3 The SVP Act requires that a petition for civil commitment ofa sexually violent predatorbe filed in Montgomery County. See TEX. HEALTH & SAFETYCODEANN. § 84L041(a) (West 2010).

3A. Dr. Clayton 

### Dr. Clayton, who is board certified in both general and forensic psychiatry,

was retained by the State to evaluate Stuteville and determine whether be 

### has a behavioral abnormalitythatmakes him likely to engage in apredatory actofsexual violence. Dr. Clayton testified that she has evaluated approximately 135 sex offenders for behavioral abnormalities during the past thirteen years and testified

as an expert witness in civil commitment trials arising from approximately halfof those cases. 

### Dr. Clayton testified that when she evaluates someone for a behavioral abnormality, she begins by compiling and reviewing any available records on that individual and then meets with the person and performs a face-to-face interview and evaluation. Dr. Clayton explained that this is the methodology relied upon by forensic psychiatristswhenformulating an opinionin such cases. Dr. Clayton testified that she reviewed police reports from two different jurisdictions, victim statements, indictments, plea bargain forms, Stuteville's penitentiary packets, sex offender treatment records, and medical records, and spoke With a witness in one case. She also reviewed prior psychological evaluations by the sex offender treatment program ("SOTP") and forensic psychologist Dr. Dunham. After reviewing these records, 

### Dr. Clayton met with Stuteville for three hours in February 2013. After her interview, she reviewed

4Stuteville's most recent medical history and his deposition testimony in this civil commitment proceeding. Dr. Clayton testified that based on her education, training, experience, and the methodology she employed, she believed, to a reasonable degree ofscientific certainty, that Stuteville suffers from a behavioral abnormalitythatmakes him likelyto engage in apredatory act ofsexual violence. Dr. Clayton testified that Stuteville had somewhere between twenty-seven and forty-three victims going back to 1987, apart from ''the ones he was charged with," and she described various details ofthese charged and uncharged offenses for the jury. Stuteville objected to Dr. Clayton testifying about the charged and uncharged offenses based on hearsay and argued that the evidence was more prejudicial than probative pursuantto Rules ofEvidence 403 and 705(d). The trial court overruled Stuteville's objections, granted him a running objection, and, at Stuteville'srequest, gavethejurythefollowing oral instruction: [H]earsay normally is not admissible. However, certain hearsay infonnation contained in records reviewed by experts is allowed into evidencethroughexperttestimony. Suchevidence is admittedonly for thepurposeofshowingthe basis ofthe expert's opinion. Stuteville did notobjectorrequesta differentinstruction. 

### 1. Charged Offenses Dr. Clayton testified that Stuteville pleaded guilty to two charges of indecency with a 1 0-year-old girl by sexual contact in 2004 for whichhe received prison sentences.

5

### According to Dr. Clayton, Stuteville befriendedthe mother oftwo girls, and eventually began babysitting for them. One of these girls was the named complainant in the two indecency-by-contact convictions. Stuteville paid the girls to perform chores around his home, and he bought them toys, clothing, and jewelry. He would also let the girls swim and play naked in his hot tub. Dr. Clayton described Stuteville's conduct as "groorning," and explained to the jury that ''grooming" is something sophisticated pedophiles do in order to offend against children while lessening the chances ofthe child telling someone aboutthe abuse.The ten-year old complainant told law enforcement that she spent many months with Stuteville, swimming naked inhis hottub, giving and receivingnaked massages with oil, mutual masturbating, and watching pornography. The girl claimedthat Stuteville threatened that she would be taken away from hermotherif she told anyone. After a visit to the school nurse's office in 2002, the nurse contacted CPS due to a suspicious yeast infection. CPS's investigation culminated in the two charges of indecency with a child by sexual contact that Stuteville pleaded guilty to in 2004. Stuteville deniedthe allegations againsthim and blamed the gitl'srnother. Dr. Clayton testified that Stuteville's house was "kind of like the neighborhood Disneyland, where lots of little kids wanted to come over."

6Stuteville had a bicycle, go-cart, hot tub, and a constant Christmas tree with hundreds ofwrapped presents. Ac.cording to Dr. Clayton, Stuteville told her his house was "akid magnet." Dt. Clayton testified that Stuteville also pleaded guilty to three charges of indecency with a child by exposure in 2004. According to Dr. Clayton, those charges involved three sisters (ages 5, 9, and 12) who lived down the street from Stuteville. The girls began going over to Stuteville's house after they saw other children there. The girls told law enforcementthat they swam naked in the hot tub with Stuteville and that Stuteville exposed himselfto thel11 on other occasions, masturbated and ejaculated in front of them, and tried to get them to watch pornography with him. Stuteville also tried to convince the girls to let him fondle theirbreasts and "lick their middles" (i.e., "their vaginal area without clothes on") and told them that otherlittle othergirls hadlethimtouchthem in thatway before. Stuteville, who warned the girls not to tell anyone, showed them a gun and a large knifethathekeptbyhis bed. Stuteville pleaded guilty to three counts ofindecency by exposure involvingthese girls and was sentencedto five years' imprisonmentin eachcase. Dr. Clayton testified that Stuteville told her that he did not commit any of these crimes eventhough he had pleaded guilty and thathe had been kicked out of

7sex offendertreatment for not admittingthe offenses. His denial and his lack ofsex offendertreatmentare risk factors forhim reoffending sexually.**2~** 

### Uncharged Offenses Dr. Clayton testified that although he had only been convicted ofoffending against these four prepubescent girls in 2004, the police records and victim statements that she had reviewed indicated that Stuteville had committed many otheroffenses againstmany othervictims beginning as early as 1987. Basedonher review ofthe records, Dr. Claytontestified that Stuteville had somewhere between twenty-seven and forty-three victims, including his own daughter and granddaughter. Dr. Clayton also testified that several ofthe girls reported to law enforcement that Stuteville had told them that he had "43 adopted daughters.'' According to Dr. Clayton, this numberreferred to Stuteville's count ofthe girls he had sexually assaulted. Inparticular, Dr. Claytontestifiedthat Stuteville'steenage daughtermade an outcry in 1987, claiming that her father had masturbated in front ofher, and made her sit naked while he fondled her breasts and genitals. Although the girl was removed from the home and charges were filed against Stuteville, the girl died in

an automobile accident andthe charges were laterdismissed. Dr. Clayton also testified that after the charges that resulted in Stuteville's 2004 plea bargain became public, another young woman came forward and said

8that he had done the same things to her when she was young. She also named five othergirlsthat shehad seen Stuteville sexually offend against. According to Dr. Clayton, all of the children interviewed by law enforcement knew that no one was allowed to wear clothing in the hot tub, and many acknowledged either swimming naked with Stuteville in the hot tub or seeing Stuteville swimming naked with other children-including Stuteville's seven-year old granddaughter. The children also reported that Stuteville gave gifts and toys to thetn, and even tried to pay some ofthe little girls to do housework in thenude. 

### 3. "Riskfactors" Dr. Clayton testified that "risk factors" are broad characteristics based on research, and identified by forensic psychology and forensic psychiatry, which offenders have in common. In this evaluation, Dr. Clayton used risk factors to fortify her medical opinion that Stuteville suffers from a behavioral abnormality thatmakes him likelyto engage in apredatory act ofsexual violence. Inparticular, Dr. Clayton testified that Stuteville has a sexual deviancy (i.e., pedophilia nonexclusivetype, to bothmales and females) and apersonality disordernototherwise specified with antisocial and narcissistic traits. Sexual deviancy and antisocial personality disorders are risk factors for reoffending sexually.

9

### The records Dr. Clayton reviewed indicated that Stuteville is a "sophisticated devious pedophile" who is very stimulated by children and has created a child-friendly home and befriended the children and their mothers in orderto actouthis sexual deviancy. Pedophilia is a lifelong, chronic condition that does notgo away. Dr. 

### Clayton explained that pedophiles have difficulty controlling their emotional, and sometimes volitional, capacity and that sex offender treatment can "help the person realize

... learn ways that they can try to control it so that they don't act on it." Dt. 

### Clayton further opined that Stuteville had not "had enough treatmentto control his" behavior. Dt. 

### Clayton testified that the past behavior ofpedophiles is often indicative ofwhat they will do inthe future because "sexual deviation and [sexual attraction does not] change over time." A person's past behaviormust be studied in order to determine whether he has a behavioral abnormality that makes him likely to engage in a predatory act ofsexual violence in the present. Dr. Clayton explained that she considered the facts of Stuteville's charged and uncharged offenses and relied on them in forming her expert opinion in this case. According to Dr. Clayton, the facts ofthe underlying offenses were necessary for purposes ofher evaluation ofStuteville because they showed herthe depth and breadth ofthe acts he committedwhile acting outon his sexual deviancy.

10

### Dr. Clayton also reviewed actuarial tests given to Stuteville by earlier evaluators which calculated Stuteville's risk to reoffend as average, but the test reassessed his risk at the low-to-moderate range when Stuteville's advanced age
was taken into consideration. Dr. Clayton explained that the first test is more accurate inthis case because Stuteville committedthe charged offenses in his eatly to mid-fifties, which is well beyond the age of forty-five, where sex offenders usually offend less often. Dr. Clayton further explained that the actuarial tests underestimated Stuteville's risk ofreoffending because Stuteville is ''kind ofan aberration" because he began offending at a much later age than most pedophiles. He also had a much longer offending history and "wider victim pool" than the actuarial tests considered. In addition to Stuteville's sexual deviancy and personality disorder, Dr. Clayton also identified numerous otherrisk factors indicating that Stuteville posed

a high risk ofreoffending, These other risk factors include the fact that Stuteville (1) has a lengthy offending history which spans more that fifteen years, (2) has a large number of victims, (3) has both male and female victims, (4) actively recruited his victims, (5) offended afterthe age offorty-five, (6) attempted to hide his crirnes and avoid detection, (7) was kicked outofsex offendertreatment after a couple ofmonths because he denied needing treatment, (8) continues to deny any

11

### wrongdoing, and (9) lacks any insight into the danger of him being around children. Althoughprison authorities attemptedto provide Stutevillewith sexoffender treatment, Stuteville repeatedly denied needing treatment and did "everything he [could] do to avoid it," including faking an illness in order to avoid attending treatment sessions. Dr. Clayton furthertestifiedthat Stutevillehadnot "hadenough treatment to control his behavioral abnormality." According to Dr. Clayton, Stuteville's denial ofany wrongdoing and his lack of sex offender treatment are risk factors forhim reoffending sexually. Dr. Clayton testified that based on her interview and her revtew of Stuteville's records, she believed that Stuteville posed a high risk ofreoffending sexually. B. Stuteville 

### At trial, Stuteville was questioned extensively about the facts and details of the charged and uncharged sexual offenses that Dr. Clayton had previously testified about. He admitted to some ofthe facts (e.g., babysitting for and buying gifts for some of the children, allowing neighborhood children into his home, having a playset in his backyard and a playroom in his house "for the younger ones"). Stuteville also admitted to telling the children who visited his home that they had to be naked in order to swim in his bot tub, but he claimed that it "was

12just an excuse to keep people out of it." He acknowledged that some of the children got in the hottub anyway (some ofwhom were clothed while others were naked), buthe deniedbeinginthe hottubwith any ofthechildren. Stuteville testified that he was charged with sexually offending against his teenage daughter in 1990, but he denied any wrongdoing. Although he admitted that he had been previously convicted oftwo counts ofindecency with a child by sexual contact and three counts ofindecency with a child by exposure in 2004, he denied committing any offenses. According to Stuteville, three other charges of indecency with a child were also filed againsthim, butthose were dismissedbefore his pleabargainbecausethe girl admittedthat she lied. He also testified that he was not aware that he had been accused in the twenty-seven to forty-three uncharged cases that Dr. Claytontalked about until his deposition in this civil commitment case. When asked if any of the children allegedly involved in the charged and uncharged sexual offenses were his "victims," Stuteville responded, "No. And I'm not in denial either." Stuteville testified that he attended the SOTP while incarcerated at TDCJ because he was forced to do so, butthathe didnot believe thathe needed such treatment. 

### C. MotionsforDirected Verdictand theJury

### Cbarge After both sides rested, Stuteville moved for 

### adirected verdict and argued that that there was legally insufficient evidence that he currently suffers from a

13behavior abnormality that makes him likely to engage in a predatory act ofsexual violenc.e. Stuteville'smotionwas denied. The State moved for a directedverdict onthe issue ofwhether Stutevillewas

a "repeat sexually violent offender," based upon Stuteville's testimony, as well as his penitentiary packet which was admitted into evidence without objection. See TEX. HEALTH & SAFETY CODE ANN. 

### § 841.003(b) (West Supp. 2014) (defining "repeat sexually violent offender" as person who has been convicted ofmore than

one sexually violent offense and sentenced for at least one such offense). The State'smotion was granted. During the charge conference, Stuteville requested a separate instruction on the issue of"serious difficulty in controlling behavior." The trial court denied the request after noting that the court's charge tracked the language ofthe SVP Act andhadbeen "approvedbythe CourtofAppeals." The submitted charge, which tracked the language ofthe SVP act, included the statutory definitions of"sexually violent predator,'' "behavioral abnottnality," and "predatory act." The charge also instructed the jury that the trial court had granted a directed verdict on the issue ofwhether Stuteville is a repeat sexually violent offender. As a result, thejury was asked to decide only one question: "Do you find beyond a reasonable doubt that DENNIS RAY STUTEVILLE is a

14

### sexually violentpredator?" Thejury answered, "yes." The trial court also included the following written limitinginstruction inthejurycharge: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, to prove the truth of the matter asserted. Certain hearsay information contained in records reviewed by the experts**w~s** 

### admitted before you through expert testimony. Such hearsay was admitted only for the purpose ofshowing the basis ofthe expert's opinion and cannot be considered as evidenceto prove thetruth ofthe matterasserted. Stuteville did notobject ot

### request adifferent instruction.**B~sed** 

### on thejury's finding that Stuteville is a sexually violentpredator, the trial court signed a judgment and order of commitment, ordering Stuteville to undergo outpatient treatment and to be subject to certain terms of supervision. This appeal followed. SufficiencyoftheEvidence 

### In his first and second issues, Stuteville argues that there is legally and factually insufficient evidence supporting the jury's finding that he has "serious difficulty controllinghis behavior." A. Standar4ofReview 

### This is a civil proceedingbutbecause the State'sburden ofproofis the same
as in a criminal case, we review SVP cases for legal sufficiency ofthe evidence using the appellate standard of review applied in criminal cases. 

### See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.-Beaumont 2002, pet.

15denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979)). Under this standard ofreview, we assess the evidence in the light most favorable to the verdict to determine whether any rational trier offact could find, beyond a reasonable doubt, the elements required for commitment under the SVP statute. SeeMullens, 92 S.W.3d at 885; seealsoIn re Commitmentof Hatchell, 343 S.W.3d 560, 563 (Tex. App.-Beaumont 2011, no pet.). It is the fact finder's responsibilityto fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Mullens, 92 S.W.3d at 887. When reviewing a challenge to the factual sufficiency ofthe evidence in a SVP case, we weigh all ofthe evidence to determine "whether a verdict that is supportedby legally sufficient evidence nevertheless reflects arisk ofinjustice that would compel ordering a new trial." In reCommitment of Day, 342 S.W.3d 193, 213 (Tex. App.-Beaumont 2011, pet. denied). We "view all ofthe evidence in a neutral light and ask whether ajurywas rationallyjustified in finding guilt beyond

a reasonable doubt." !d. at 206. We will only reverse if, after weighing the evidence, we determine that "the risk ofan injustice remains too greatto allow the verdict to stand." !d. at 213. In conducting our review, we may notsubstitute our judgment for that ofthejury which is the solejudge ofthe credibility ofwitnesses

16and the weight to be given to their testimony. 

### Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). 

### B. Applicable Law In an SVP case, the State must prove beyond a reasonable doubt that a person is a sexually violent predator. TEX. HEALTH & SAFETY CODE ANN. § 84L062(a) (West 2010). A person is a "sexually violent predator" ifhe is a repeat sexually violent offender and suffers from a behavioral abnormality that makes him likely to engage in apredatory act ofsexual violence. !d. § 841.003(a). A "behavioral abnormality" 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 thatthe person becomes a menace to the health and safety ofanotherperson.''

### Id § 841.002(2) (West Supp. 2014). The U.S. Supreme Court requires the State to prove that a respondent has "serious difficulty in controlling [his] behavior" in order to civilly commit hirn under any SVP statute. 

### See Kansas v. Crane, 534 U.S. 407, 413, 122 

### S. Ct. 867, 870 (2002). The inability to control one's behavior "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality; ordisorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case."Id

17With regard to Texas's SVP statute, the Beaumont Court ofAppeals has repeatedly held that a "behavioral abnormality" is considered "an abnormality which causes serious difficulty in behavior control," In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.-Beaumont2003, pet. denied). When

a jury finds that a person is a sexually violent predator, that finding entails an implicit determination that the respondent has serious difficulty controlling behavior. See id. at 505-06. Further, ajurymay inferthatarespondent has serious difficulty controlling his current behavior based on his past behavior.4 See In re Commitment ofWashington, No. 09-11-00658-CV, 2013 

### WL 2732569, at *5-6 (Tex. App.-BeaumontJune 13, 2013, pet. denied) (mem. op.). C. Analysis Stuteville argues that there is legally and factually insufficient evidence supporting the jury's finding that he bas "serious difficulty controlling his behavior." The evidence in this case consists primarily of the testimony of Stuteville and Dr. Clayton, and Stuteville's penitentiary packet which reflects that he pleaded guiltyto sexually offending against fourprepubescentgirls in 2004. At trial, Stuteville admitted that he had been convicted oftwo coUI1ts of indecencywith a childby sexual contactandthree counts ofindecencywith a child

4 Stuteville argues on appeal that evidence that he committed past crimes does not by itself, orin combination withDt. Clayton's testimony, support afinding thathe has serious difficulty controlling his behavior. His only source for this claim, however, is an articlethatwas never offered or admitted into evidence attrial.
18by exposure in 2004, and charged with sexually offending against his teenaged daughter in 1990, buthe denied any wrongdoing and testified thathe onlypleaded guilty to the five offenses becausehis lawyer told him to do so. Stuteville testified that he was not sexually attracted to children, denied that he ever had "aproblem with sexually offending against children," and claimed that the children's families fabricated all ofthe sexual allegations against him because they were mad athim. He also denied being a sex offender or needing sex offender treatment, and he testifiedthathe only attendedTDCJ's SOTPbecausehewas forced todo so. Dr. Clayton testified that, in her expert medical opinion, Stuteville has a behavioral abnormality as defined bythe SVP Act thatmakeshim likelyto engage in a predatory act of sexual violence. 

### In particular, Dr. Clayton testified that Stuteville has been diagnosed with pedophilia and a personality disorder with antisocial and narcissistic traits. She explained that Stuteville hadnot "hadenough treatmentto control his behavioral abnormality." In addition to Stuteville's sexual deviancy (pedophilia) and personality disorder, Dr. Clayton also identified numerous other risk factors that increase Stuteville's likelihood ofreoffending sexually, including, his advanced age when he offended, his lengthy offending history, his large victim pool that includes both male and female children, and the fact that he actively recruited his victims and attempted to hide his crimes and avoid detection. Dr. Clayton testified that

19Stuteville's denial ofany wrongdoing, his lack ofsex offender treatment, and his lack ofany insight into the danger ofhim being aroUild children placedhim at high risk forreoffending sexually. The jury could reasonably infer that Stuteville has senous difficulty controlling his behaviorbased onthe evidencepresented to them. 

### See Washington, 2013 WL 2732569, at *5-6 (stating thatjury may infer that respondent currently has serious difficulty controllinghis behaviorbased on respondent's pastbehavior, respondent's testimony, and experttestimony}; 

### cjIn reCommitment of Moss, No. 09-12-00599-CV, 2014 WL 580694, at *1-2 (Tex. App.-Beaumont Feb. 13, 2014, pet. denied) (tnem. op.) (holding expert testimony that respondent had multiple convictions for sexual offenses was sufficient to distinguish him from "a typical recidivist because his multiple convictions evidence that his behavioral abnormality affects his ability to control his sexual behavior"). Dr. Clayton's opinion that Stuteville has a behavioral abnormality, as defined by the SVP Act, necessarily entails a related finding that he has ''serious difficulty controlling his behavior.'' 

### See Almaguer, 117 S.W.3d at 505-06; 

### see also In re Commitment of Browning, 113 S.W.3d 851, 862-63 (Tex. App.-Austin2003,pet. denied). Examining all ofthe evidence in a light most favorable to the verdict, itt reviewing legal sufficiency, we hold that arationaljury couldhave found beyond a reasonable doubt that Stuteville has serious difficulty controlling his behavior. 

### See

20

### Mullens, 92 S.W.3d at 885; see also In reCommitment ofChappell, No. 09-13- 00130-CV, 2014 WL 346090, at *1-2 (Tex. App.-Beaumont Jan. 23, 2014, no pet.) (mem. op.). Further, weighing all of the evidence in a neutral light and applying the factual sufficiency standard, we hold that a rationaljury could have found beyond a reasonable doubt that Stuteville has serious difficulty controlling his behavior. See Day, 342 S.W.3d at 206. Such a finding is implicit in thejury's express finding that Stuteville suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Almaguer, 117 S.W.3d at 505-06; seealsoBrowning, 113 S.W.3d at 862--63. Because the evidence is both legally and factually sufficient to support the jury's verdict and implicit finding that Stuteville has "serious difficulty m controlling [his] behavior," weoverrule Stuteville's first and secondissues. Jury Charge 

### In his third issue, Stuteville argues that the trial court abused its discretion when it 

### denied his request to include a separate jury instruction on "serious difficulty controllingbehavior." A trial court's decision to refuse a particular instruction in its charge is reviewed fot an abuse ofdiscretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012). A trial court may refuse to give a requested instruction or definition that 

### is not necessary to enable the jury to render a verdict, even if the instruction or

21definition is a correct statement ofthe law. In re Commitment ofTaylor, No. 09

..... 10-00231-CV, 2010 WL 4913948, at *1-3 (Tex. App.-Beaumont Dec. 2, 2010,

nopet.) (mem. op.). Here, the trial court's charge tracks the language of the SVP Act and contains the applicable statutory definitions, including the statutory definition of behavioral abnormality. Stuteville requested a separate instruction on the issue of whether he has serious difficulty in controlling his behavior. The Beaumont Court ofAppeals has consistently held that a trial court's refusal to include a separate instruction on the issue of "serious difficulty controlling behavior" does not constitute an abuse ofdiscretion because the lack-of-control question "is implicitly included within the issue submitted to the jury." Almaguer, 117 S.W.3d at 502, 505-06; In re Commitment of Taylor, 2010 WL 4913948, at *3. Although Stuteville's requested instruction is a proper statement ofcase law, seeAlmaguer, 117 S.W.3d at 505-06, it is not statutory law and was not necessary to enable the jury to render a verdict in this case. See Taylor, 2010 WL 4913948, at *1-3. The trial courtdidnot abuse its discretion in denying Stuteville'srequested instruction. We overrule Stuteville'sthirdissue. Admission ofEvidence In his fourth and fifth issues, Stuteville contends that the trial court abused its discretion by admitting evidence of uncharged offenses that he allegedly

22

### committed, details ofthese uncharged offenses, and details ofhis charged offenses for the limited purpose of explaining the basis ofDr. Clayton's expert medical opinion. Stuteville argues that the admission of this evidence was unfairly prejudicial and thatthejurymust have considered the evidence for the truth ofthe matter asserted, despite the trial court's instructions to the contrary.**A~** 

### Standard ofReview "We review a trial court's evidentiary rulings for abuse or discretion." Horizon/CMSHealthcare Corp. v. Auld, 

### 34 S.W.3d 887,906 (Tex. 2000); seeDay, 

### 342 S.W.3d at 218. We will 

### not reverse unless the error probably caused the rendition ofan improperjudgment.

### TEx. R. APP. P. 44.1(a)(l). An 

### expert in a SVP Act civil commitment proceeding may disclose details regarding the underlying facts or data that the expert relied on in arriving at her opinion. See In reCommitment of Anderson, 

### 392 S.W.3d 878, 882 (Tex. App.- Beaumont 2013, pet. denied); TEX. R. Evm. 

### 705(a) (stating "expert may ... disclose ondirect examination, orbe required to disclose on cross-examination, the underlying facts or data"). In 311 

### SVP case, having an expert explain the facts he considered, including past sexual offenses, and how those facts influenced his evaluation, assists thejury in weighing the expert's opinion on the ultimate issue. See In re Commitment ofYoung, 

### 410 S.W.3d 542, 557 (Tex. App.-Beaumont 2013, no pet.).

23Rule ofEvidence 403 also provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion ofthe issues, or misleading thejury, or by considerations of undue delay, orneedless presentation ofcumulative evidence.''

### TEx. R. EVID. 403. Factors considered when applying the Rule 403 balancing test "include the probative value ofthe evidence, the potential ofthe evidence to impress thejuryin

some irrational way, the time needed to develop the evidence, and the proponent's need forthe evidence."Anderson, 392 S.W.3d at 882. B. Sufficiency ofLimitingInstructions Inthis case, Stuteville objectedto Dr, Claytontestifying aboutthe uncharged offenses and the details ofthe chatged and uncharged offenses based on hearsay and arguedthatthe evidence Was moteprejudicialthanprobativepursuantto Rules of Evidence 403 and 705(d). The trial court overruled Stuteville's objections, granted him a running objection, and, at Stuteville's request, gave the jury the following limiting instruction: [H]earsay normally is not admissible. However, certain hearsay information contained in records reviewed by experts is allowed into evidencethrough experttestimony. Such evidence is admittedonlyfor thepurpose ofshowingthe basis ofthe expert'sopinion. Stuteville did not object to the contemporaneous limiting instruction that

was given or to the limiting instruction included in thejury charge, or request a different or additional instruction. Absent record evidence to the contrary, we

24

### presume that thejury followed the court's limiting instructions. See Golden Eagle Archery, 

### 116 S.W.3d at 771; see also Day, 342 

### S.W.3d at 199. Stuteville has not directed this court to any te.cord evidence that the jury actually ignored the trial court's oral and written limiting instructions. Stuteville has failed to rebut the presumptionthatthejuryfollowed the trial court's instructions. C. Unfair Prejudice? 

### Stuteville argues that Dr. Clayton's testimony that he had approximately 27 to 43 

### victims, in addition to the four victims ofhis five charged offenses, was based largely on unsubstantiated rumors, gossip, and multiple levels ofhearsay, and that "[t]he sheervolume ofthis evidence created a substantial danger" that the jury based its verdict on further punishing Stuteville for the uncharged sexual offenses. Dr. Clayton testified about multiple charged and uncharged offenses attributed to Stuteville going back as far as 1987. She also testified about the details associated with these offenses, all ofwhich involved sexual acts against children. Dr, 

### Clayton explained to thejury how and why the underlying offenses and details of those offenses assisted her in evaluating Stuteville and in determining whether he has a behavioral abnormality that makes him likely to engage in apredatory act ofsexual violence andthat Stutevilleposed a "high" risk of reoffending sexually. In particular, Dr. Clayton testified that the details of

25

### Stuteville's charged and uncharged offenses involved examples of "grooming" which is something that "more sophisticated pedophiles" do in order to offend against children while lessening the chances of the child telling. Dr. Clayton testified that such behaviors (grooming, attempting to avoid detection) are risk factors for reoffending that she considered as part ofher behavioral abnormality assessmentin this case. According to Dr. Clayton, Stuteville's large Iiutnbet ofvictims and his long period of offending are illustrated by the details ofthe charged and uncharged offenses that she described for thejury. Evidence ofStuteville's prior uncharged sexual offenses and the details ofthe charged and uncharged offenses ate highly probative and helpful to thejury in explaining the basis ofDr. Clayton's opinion thathe has abehavioral abnormalitythatmakes him likely to engage in apredatory actofsexual violence. Stuteville argues that the admission of the "voluminous, unneeded and emotionally charged details were ...unfairly prejudicial because oftheirtendency to arouse thejury'shostility againstMr. Stuteville."However, the BeaumontCourt ofAppeals has repeatedly upheld a trial court's decision to allow an expert to testify about the details ofsuch offenses in SVP cases. See In re Commitment of Alvarado, 

### No. 09-13-00217-CV, 2014 WL 1285136, at *10-11 (Tex. App.- BeaumontMat. 27, 2014, pet. denied) (mem. op.); In reCommitmentof King, 

### No.

2609-13-00255-CV, 2014 WL 346109, at *2-3 (Tex. App.-· Beaumont Jan. 23, 2014, no pet.) (mem. op.) (holding trial court did not abuse its discretion by allowing expertto testify about details ofrespondent's past sexual offenses). Here, Dr. Claytontestifiedthat sexual deviancy is onerisk factor for reoffending and that the facts ofStuteville's offenses are important in explaining his particular sexual deviancy (pedophilia), and helping both her and thejury understand the depth and breadthofthe acts he committed while acting outonhis sexual deviancy. We cannot say that the trial court abused its discretion by determining that the probative value of this evidence was not substantially outweighed by the danger ofunfair prejudice. See TEX. R. EVID. 403. Based on this record, the trial court could have reasonably concluded that the facts and details related to Stuteville's offenses wouldbe helpful to thejuryin weighing his testimony andDr. Clayton's testimony, and in explaining the basis for Dr. Clayton's opinion that Stuteville suffers from a behavioral abnormality. Given the purpose for admitting this evidence and the trial court's limiting instructions, we hold that the trial court didnot abuse its discretion by admittingevidence ofunchargedoffenses. D. Conclusion Having determined that the trial court did not abuse its discretion by admitting evidence ofuncharged**offense~** allegedly committed by Stuteville, orthe details of both the charged and uncharged offenses, for the limited purpose of

27explaining the basis of Dt. Clayton's expert medical opm10n, we overrule Stuteville's fourth and fifth issues. Directed Verdict In his**si~th** issue, Stuteville contends that there is a conflict between Texas Rule ofCivil Procedure 268, which allows for a directed verdict in civil cases, and section 841.062(a) ofthe SVP Act, which provides that in a juty trial, the "jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." TEX. HEALTH & SAFETY CODE ANN. § 841.062(a); see TEX. R. Crv. P. 268. Because the SVP Act controls in the event of any such conflict, Stuteville argues, the trial court erred by granting the State's motion taking the issue ofwhether or not he is a "repeat sexually violent offender" away from the jury. See TEX. HEALTH & SAFETY CODE ANN. § 841.146(b) (West 2010) (stating SVP Act civil commitment proceedings are subject to rules ofcivil procedure; SVP Actcontrols inthe eventofa conflictbetweenthe statute andthe rules). The Beaumont Court of Appeals recently rejected a virtually identical argument in another appeal ofan SVP Act civil commitment proceeding. SeeIn re Commitment of Lemmons, No. 09-13-00346-CV, 2014 WL 1400671, at *3 (Tex. App.-Beaumont Apr. 10, 2014, no pet.) (mem. op.) ("[W]e perceive no conflict between [section 841.062(a) of] the SVP statute and the Rules ofCivil Procedure

28thatprecludes the granting ofa directed verdict in ajurytrial when no evidence of probativevalueraises anissue ofmaterial fact onthequestionpresertted.").5 Because in SVP Act cases we are bound by the legal precedent of the BeaumontCourtofAppeals, we overrule Stuteville'ssixthissue. Improper Commenton WeightofEvidence In his seventh issue, Stuteville contends that the trial court improperly commented on the weight ofthe evidence during voir dire by directing thejury's attentionto the State's expert's upcomingtestimony onpedophilia, and effectively bolsteringthe expert's credibility and reliability. Theparties disagree as to whether Stutevillehaspreservedthis issue for ourreview. To preserve error, a party tnust object to the trialjudge's alleged improper conduct or comment when it occurs and request a curative instruction, unless a proper instruction cannot render the conduct or comment harmless. In re Commitment ofVanzandt, 156 S.W.3d 671,674 (Tex. App.-Beaumont2005, no pet.) (citingDow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)); see also In reCommitment of Barbee, 192 S.W.3d 835, 848 (Tex.. App.-Beaumont 2006,

no pet.) (holding respondent did notpreserve his complaint regarding trialjudge's 5 Stuteville does notcontendthatthere is an issue ofmaterial fact onthe question of whether he is a "repeat sexually violent offender," which Would otherwise preclude the granting ofadirected verdict. See In re Commitmentof Scott, No. 09- 11-00555--cV, 2012 WL 5289333, at *2 (Tex. App.-Beaumont Oct. 25, 2012, no pet.) (mem. op.) (citing Prudential Ins. Co. of Am

.. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77, 82 (Tex. 2000) (stating directed verdict is proper when evidence, viewed in lightmost favorable to nonmovant, does notraise fact issue)). 29

### alleged improper comments during voire dire becausehe did not object and request curative instruction). Unwaivable error must be of the type that "cannot be repaired" and therefore needs no objection. Sf;e Cqpellen 

### v. Cape/len, 

### 888 S.W.2d 539, 

### 547 (Tex. App.-ElPaso 1994, writ denied). The claimantbearsthe burden to ''explain how any comments made by the trial judge were incurable or would excuse" the claimant's "failure to preserve error.'' Dow Chern. Co., 

### 46 S.W.3d at 241. 

### Here, the record reflects that the trial Judge explained to the venire at the beginning ofvoir dire that this was a civil commitment proceeding 

### and that it would be thejtiry'sresponsibility to determine whetherthe**Stat~** 

### met its burden of proving that Stuteville was a "sexually violent predator" as defined by the SVP Act. The trialjudge also informed the venire that he Was the "only Judge in the state of Texas" that presides over this "vety serious" type of case and that he understood that they may have 

### a strong reaction to the types ofissues that often

come 

### up in these cases, and that he needed to make sure that they would be able to set their personal feelings aside and decide the case based on the evidence presented. After briefly discussing the SVP Act and the burden ofproof, the trial judge further stated: I need to talk to you about one other area, and that is in these trials**oftentimes~and** 

### I don't know what we're talking about in this case because the Judge gets the file put onhis desk in the morning when I show up here to court. Most people think the Judge reviews the file,

30but theyjust send me Stacks ofthem. And they say this is the one you're trying today. So all that's in my file is the State saying that a Respondent is a sexually violent predator and the Respondent is saying: No, I'm not. That's essentially what's in my file. But oftentimes, having tried this case many, ma,ny times, we talk about issues ofpedophilia, we talk about issues ofhomosexuality, we talk about issues ofincest. Okay? And I want to make sure that-and I'll tell you, especially the issue ofpedophilia-jqst trying to put a little sugar here on this case for you=--,o.ifyou're fortunate enough to make the jury, you know, everything that a person knows about sexual offenses, unless you have some training in this area, is somethingyou were toldby somebody or somethingyouprobablyread in a magazine or on the Internet. And we all know the Internet is never wrong. Right? Ifyou're lucky enough to get to serve on this jury you cart expect to hear from at least one doctor explaining to you about these issues and explaining to you what these issues mean. l'tn not sure if any ofthese issues are coming up in this trial. But ifyou're luck.y enough to make it on thejury it's a.n educational experience for you. You don't get any college credit for it, but you do become a little smarter, hopefully, throughthis whole process. Stuteville did not object to the trial court;s comments or request a curative instrUction. On appeal, Stuteville argues that he had no obligation to object to these comments because the resulting harm was incurable by instruction. Specifically, relying upon Brown 

### v. State, 122 S.W.3d 794, 798 (Tex. Critn. App. 2003), Stuteville contends that "[o]nee the trial court tnade clear its support for the stateexperttestimony, no instructionthatthe venire should disregardthe COl.Jrt's opinion wouldhave been effective." First,Brown is inapposite and does not support such a proposition. Unlike in the presentappeal, the issue ofpreservation was notbefore the appellate court in Brown because the defendant made a contemporaneous

31objectionto the trial court'scomments in that case. Id. Therelevant issue in Brown

· was whether the trial judge's comments were improper, not whether they were

incurable. Second, Stuteville has not explainedhowthe trial court's comments were so "blatantly and obviously prejudicial" that any confusion or damage caused by the comments could not be overcome by a curative instruction. See Cape/len, 888 S.W.2d at 547. Accordingly, we hold Stuteville has not demonstrated that the trial judge's alleged improper comments were incurable. See Dow Chern. Co., 46 S.W.3d at 241. We further holdthat Stuteville has failed to preservethis complaint for ourreviewbecause he did notobjectorrequest a curative instruction. We overrule Stuteville's seventh issue. Conclusion We affirmthetrial court'sjudgmentand otdetofcommitment.

Russell Lloyd Justice Panel consists ofJusticesJennings, Massengale, and Lloyd.

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