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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-14-00400-CV

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IN RE COMMITMENT OF ROYAL LEE SMITH

_________________________________ ______________________ 

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause No. 14-03-03232 CV 

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MEMORANDUM OPINION 

The State of Texas filed a petition to commit Royal Lee Smith as a sexually 

violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 

& Supp. 2014). A jury found that Smith is a sexually violent predator and the trial 

court rendered a final judgment and an order of civil commitment. In two appellate 

issues, Smith complains of improper jury argument by the State and admission of 

basis testimony from the State’s expert witness. We affirm the trial court’s 

judgment.
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Jury Argument

In issue one, Smith contends that the State engaged in improper jury 

argument. To obtain a reversal based upon improper jury argument, an appellant 

must show an error that (1) was not invited or provoked, (2) was preserved by the 

proper trial predicate, (3) was not curable by an instruction, a prompt withdrawal 

of the statement, or a reprimand by the trial court, and (4) by its nature, degree, and 

extent constituted reversibly harmful error. Standard Fire Ins. Co. v. Reese, 584 

S.W.2d 835, 839 (Tex. 1979). “[T]he complainant must show that the probability 

that the improper argument caused harm is greater than the probability that the 

verdict was grounded on the proper proceedings and evidence.” Id. at 840.

During closing argument, the following exchange occurred:

State: He has never had sex offender treatment. Today, after this 

whole history, he tells you, “I don’t need it.”

Defense Counsel: Objection, Your Honor. These statements about sex 

offender treatment go to the legal effect of the jury’s answer.

Trial Court: Okay. You are to rely on what was proved and not proved 

during the trial. I’m not telling you what was proved and not proved. 

You are to rely on your own independent recollection and the 

importan[ce] to give it. You may continue now.

State: Today, he has said he does not need sex offender treatment. It 

can maybe help him. Maybe help him treat women better. But he 

doesn’t need it? He’s -- of all the people I know, he needs sex 

offender treatment. He needs substance abuse treatment.
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Defense Counsel: Objection, improper argument.

Trial Court: Overruled.

On appeal, Smith maintains that the State’s argument “could have persuaded a 

juror to agree to find Mr. Smith a sexually violent predator because the juror 

thought he needed treatment – not because the juror found beyond a reasonable 

doubt that Mr. Smith is a sexually violent predator.” 

Assuming without deciding that the State’s arguments were improper, we 

cannot say that the complained-of argument probably caused the rendition of an 

improper judgment. See Tex. R. App. P. 44.1(a)(1). The jury heard evidence that 

Smith admitted to being convicted of aggravated sexual assault, burglary of a 

habitation with intent to commit sexual assault, and forcible rape, committing 

aggravated sexual assault while on parole, abusing alcohol and various illegal 

drugs, receiving multiple disciplinaries while in prison, hearing voices and having 

hallucinations, not participating in sex offender treatment, and believing he does 

not need sex offender treatment. Dr. Lisa Clayton, a psychiatrist, testified that 

Smith has a behavioral abnormality that makes him likely to commit future acts of 

sexual violence. Clayton diagnosed Smith with sexual sadism disorder, antisocial 

personality disorder, bipolar disorder, substance use disorder, and borderline 

intellectual function. She testified that Smith suffers from sexual deviancy, used 
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violence during the commission of his sexual offenses, committed a sexual offense 

while on parole, committed offenses against strangers, has multiple victims, 

minimized his sexual deviancy, and has had no sex offender treatment or substance 

abuse treatment. Clayton opined that Smith is at a high risk to reoffend. 

The record contains sufficient evidence by which the jury could reasonably 

conclude that Smith is a sexually violent predator. See In re Commitment of Fierro, 

No. 09-12-00296-CV, 2013 Tex. App. LEXIS 2280, at *13 (Tex. App.—Beaumont 

Mar. 7, 2013, no pet.) (mem. op.) (Finding that the “evidence was such that the 

probability that the State’s argument caused harm is not greater than the 

probability that the verdict was based on the proper proceedings and evidence.”); 

see also Reese, 584 S.W.2d at 839. Thus, we cannot say that the State’s argument

was so extreme that a “‘juror of ordinary intelligence could have been persuaded 

by that argument to agree to a verdict contrary to that to which he would have 

agreed but for such argument.’” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 

2009) (quoting Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404, 404 (1954)). 

Moreover, the trial court told the jurors to rely on their own independent 

recollection of the evidence and the importance to give that evidence. “Harmful 

error is rare when trial courts make an effort to cure improper jury argument.” In re 

Commitment of Alexander, No. 09-11-00650-CV, 2013 Tex. App. LEXIS 12077, 
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at *18 (Tex. App.—Beaumont Sept. 23, 2013, pet. denied) (mem. op.). Under these 

circumstances, Smith suffered no harmful error as a result of the State’s argument. 

We overrule issue one. 

Basis Testimony

In issue two, Smith challenges the admission of testimony from Dr. Clayton

regarding the details of Smith’s offenses that Clayton learned during her review of 

records. “We review a trial court’s evidentiary rulings for abuse of discretion.” 

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re 

Commitment of Salazar, No. 09-07-345 CV, 2008 Tex. App. LEXIS 8856, at *19 

(Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). We will not 

reverse unless the error probably caused the rendition of an improper judgment. 

Tex. R. App. P. 44.1(a)(1).

During direct examination, Smith’s counsel objected on hearsay grounds 

when the State attempted to question Clayton about Smith’s first sexual offense.

The trial court overruled the objection, granted counsel’s request for a running 

objection, and gave the jury an instruction limiting its consideration of the 

evidence for the purpose of showing the basis of Clayton’s opinion. Clayton 

proceeded to testify to the details of Smith’s offenses.
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An “expert may testify in terms of opinion or inference and give the expert’s 

reasons therefor without prior disclosure of the underlying facts or data, unless the 

court requires otherwise.” Tex. R. Evid. 705(a). “The expert may in any event 

disclose on direct examination, or be required to disclose on cross-examination, the 

underlying facts or data.” Id. 

When the underlying facts or data would be inadmissible in evidence, 

the court shall exclude the underlying facts or data if the danger that 

they will be used for a purpose other than as explanation or support 

for the expert’s opinion outweighs their value as explanation or 

support or are unfairly prejudicial. If otherwise inadmissible facts or 

data are disclosed before the jury, a limiting instruction by the court 

shall be given upon request.

Tex. R. Evid. 705(d).

Clayton testified that she reviewed numerous records and relied on the facts 

and data contained in those records when formulating her opinion. The trial court 

could reasonably conclude that the facts and details related to Smith’s underlying 

offenses would be helpful to the jury to explain how Clayton formed her opinion 

that Smith suffers from a behavioral abnormality. In re Commitment of Cardenas, 

No. 09-13-00484-CV, 2014 Tex. App. LEXIS 6441, at *12 (Tex. App.—Beaumont 

June 12, 2014, no pet.) (mem. op.). When the trial court gave the jury a limiting 

instruction, Smith neither objected to the instruction nor requested a different 
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instruction. See id. at *11. Nor did Smith object to the trial court’s limiting 

instruction contained in the jury charge, which stated as follows:

Hearsay is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered to prove the truth of the 

matter asserted. Certain hearsay information contained in records 

reviewed by the experts was admitted before you through expert 

testimony. Such hearsay was admitted only for the purpose of 

showing the basis of the experts’ opinion and cannot be considered as 

evidence to prove the truth of the matter asserted.

We presume the jury followed the trial court’s limiting instruction. See id. 

Moreover, as previously discussed, the jury had before it sufficient evidence from

which it could find that Smith is a sexually violent predator. The admission of 

Clayton’s testimony was not an abuse of discretion and did not cause the rendition 

of an improper judgment. See id. at *12; see also Tex. R. App. P. 44.1(a)(1). We 

overrule issue two and affirm the trial court’s judgment.

AFFIRMED. 

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on April 9, 2015

Opinion Delivered April 23, 2015

Before McKeithen, C.J., Horton and Johnson, JJ.