Affirmed and Opinion filed Septe m b er 30 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14
- 19
- 00780
- CV

IN RE COMMITMENT OF TIMOTHY BAIZA , Appellant

On Appeal from the 161st District Court

Ector County, Texas Trial Court Cause No. B
- 18
- 08
- 10 75
- CV

OPI N ION In this appeal from a final order of civil commitment , a jury found that Timothy Baiza is a sexually violent predator as defined in chapter 841 of the Texas Health and Safety Code and therefore subject to c ivil commitment

. 1 On ap peal , Baiza contends (1) the evidence is legally and factually insufficient to “support a beyond

- a
- reasonable

- doubt finding that [Baiza] has a behavioral abnormality that makes him likely to engage in a predatory act of sexual vi olen ce ” ; (2) the tr ial

1 Te x. Hea lth & Safety Cod e §§ 841.001

- .1 5 1. This case was transferred to our court from the E leven th Court of Appeals; therefore, we must dec i de the case in accordance with its precedent if our decisio n would be o therwise inconsistent with i ts precedent. Tex. R. Ap p. P. 41.3.2

c our t ab u s ed its discreti on in admitting e xpert testimony referring to unadjudicated and uncharged allegations as evidence forming the basis of the expert ’ s opinion ; and ( 3) the trial court err ed in including a limiti ng inst ruction in the jury charge rega rding hea r s ay evidence for ming the basis of the expert ’ s opinion. 2 We affirm. Back ground
T h e State filed a petition alleging B a iza is a sexually violent predator and asking that he be committed for treatment and supervision. T h e case was tri ed to a jury. The jur y foun d beyond a rea sonable doubt that Baiza “ is a sexually violent predator as def

ined in Se ction 841.003 of the Texas Health and Safety Code

. ” The trial court re ndered final judgment or d ering B a iza civ illy committed for treatment and supervision to comm e nce up on Baiza ’ s rel ease from prison until his behav ioral abnormality “ has changed to the exten t that [he] is no longer likely to engage in a predatory act of sexual viol ence and is relea s ed from commitment in accordance with ” chapter 841

. I. Sexual Offenses
T h e S tate presented pen packets that sh owed Baiza ’ s convictions for four sexual offenses. Baiza plea ded guilty to two counts of aggravated sexual assault of a child involving two of his m a le cousin s. At the time of the purported offenses , Baiza was seventeen an d eighteen yea rs old , o ne cousin was seven years old , and the other cousin was ten or eleven years old

. Baiza was sentenced to two years ’ confinement for each offense . The sentences ran concurrently. Baiza later pleaded guilty to two counts of aggravated s exual assault against a woman . Thes e two sexual assaults purportedly occurred approximately seven months after Baiza ’ s release from p rison. Baiza received two tw e nty

- year concu rrent sentences for those

2 See Te x. Hea lth & Safety Cod e § 841. 146(b) ( appeal of civil commitment).3

offenses.
II. Baiza ’ s Testimo ny Baiza admitted that when he was sevente en , he sexually assaulted hi s seve n y ear old mal e cousin

. Ba iza continued the assault while his cousin wa s cry ing and begg ing him to stop

. B aiza said h e had consumed ma riju ana, cocaine , and alcohol before hand

. He test i fied he did i t because hi s cousin t rus te d him and he “ just wanted to ge t off. ” Baiza also said tha t w hen he was eig h teen, he sexually assaulted another male cousin who was ten or eleven at the time

. That cousin also asked him to s top , but Baiza continued . Whe n aske d why he did it , B aiza said t ha t cousin also trusted him and he “ took advantage of that trust and . . . wa s excited ” and also “ wanted to get off. ”
When Baiza was released from priso n for the sexual as s aults of his cousins , he was required to regis ter as a sex offender. He di d that bu t f ailed to comply with certain sex offender registration requirements. He received a three

- year sentence for failure to comply with sex offender registration requir e ments t hat ran

concur re nt ly wit h the offense for which he was in prison at the ti me o f tri al

. At that time, Baiza was also serving two twenty

- year concurrent sentences for aggravated sexual assault of an adult female

. Baiza testified that he did not know the woman h e assaulted pr ior to the offense. She was stay ing with a man named Jack wh o had pur chased drugs from B aiza. On the night of the offense, Baiza was at a party at Jack ’ s house . He left the party but returned with some friends to rob Jack

. Baiza told h is fri e n ds to tie Jac k to a bed , and then Baiza went to w ard the woman ’ s bedroom. O n hi s wa y to her be droom , h e grabbed a metal clo ck wit h a glass face . When he tried to enter the bedroom , the woman told him she was on the phon e calling the police. He testified ,

“ I felt like someth ing took over me. Like, I knew i t wasn ’ t me. ” He kicked t he d oor4

down and str uck her with the clock. He then forced her on to the bed and threatened to kill her if she “ didn ’ t shut the fuck up. ” He put a pillow over her face and sexuall y a ssa ulted her

. He a dmitted that s he begged him to s t op. Baiza said he

assau l ted the woman because he fel t rejected and “ like she was better than me ” and he “ thought that she was one of Jack ’ s girls , and that [he] could pretty much have [his] wa y with her

. ” Baiza said he woul d not have assaulted the woman i f he had been in hi s “ ri g ht s tate of mind ” but he had taken cocaine , marijuana, heroin , and Xanax that night

. Accor ding to B a iza, substance abuse did not cause him to commit offenses but it “ pushed [him ] t o the e dge to wher e [he ] didn ’ t care. ” He continue d to drink and use ma rij u ana in p rison but t estified that he had been sober since 2009. He did
not receive substance abuse treatment

. At the time of trial, Baiza was p articip a ting i n a sex offender treatment program. He had obtai ned his GED , had t a ken vocational classes , and currently att ended Bible study

. He testified that b eing

a round children could be a trigger but he did not believe he was at r i sk of

reo ffen ding.
III. Expert A n a lysis
T h e State presented Dr. Jason Dunham as an expert. Dunham , a forensic ps ycholo gist , performed a clin ica l ass essment of B a iza to testify concerni n g his opinion about whether Baiza suffer s from a beh avioral abnormality tha t makes him likely to engage i n a predatory act of sexual violence

. Du n ham testified he ha d been conducting evaluations of behavioral abnorm alit y in Texas for a lmost 1 5 years and h a d conducted approxim ately 253 evaluations in Texas

. H e had

con ducte d 68 sim i lar evaluations in the state of Washington

. D unham did not conduct the initial evaluation of B a iza. After the initial evaluation, Dunham wa s hi red to determine whether he a greed w i t h the initial5

evalu ation of a behavioral abnormality. His me thodology for an evaluation is to

rev iew re cords, conduct an interview, and do ac tuarial testing. He identified and discussed several risk factors that he co nsidered in evaluating whether B a iza h as a behavioral abn ormality that makes him likely to engage in a pr edatory act of sexual violence.
D unha m review ed police reports, compl ainant and witness statements, court documents, prison disciplinary records, th e r eport from the initial evaluation, an d de positions taken as pa rt of the lawsuit. A fter r eviewing the records and interviewing B a iza, Dunham conclud ed that B a iza has a behavioral abnormality that makes him likely to engage in a pr edatory act of sexual vi ole nce. Dunham i d entified the following r isk factors: antisocial orientation, sexual deviance, characteristic s of t h e complainant s , the timing of the offen ses, t he pattern of offen ding, and the level of force and violence used. Additional risk factors incl uded Ba iza ’ s young age at the time of the of f enses, t he commission of the offenses while using substances, and the loca t ion of the offenses where Baiza easily could have been detected. Also , Baiza ’ s accoun ts of the off enses differed from the complainant s ’ account s. Grooming and offending against two children in t wo differen t instance s were also risk factors. O f fending ag ai n within seven months of his release from pri son was also a risk factor. Another risk factor was the fact th at he chose different categor ies of people

— a n adult and children , ma les

a n d a fema le, and family members and a stranger

. T h e force and vi olence exhi b ite d in the la st offense were greater than in the first two. Moreover, Baiza ’ s prior time in prison did not deter him from offendi ng aga i n. D u n ham conc luded B a iza ’ s risk for reoffe n ding was high.
D unham diagnosed Baiza with polys ubstance dependence on dr u gs and alcohol , antisocial personality disorder , and sexual ps ychopathy

. Du nham also6

disc ussed B a iza ’ s nonsexual criminal history, wh ich includ es sever a l different types of crimina l behaviors. Du nham found this history sign ificant because it reflects that B a iza is impulsive and is not deterred by the potential consequences of his actions. D u nham ’ s ps ychopathy diag nosis was based on t he fol lowing behavior s: star ting to break the law at eleven years old, fi re starting, doing drugs

an d alcohol starting at se ve n years o ld, violating probation, criminal versatility, and his crimes were all committed before he was twenty

- one years old

. D u nham als o discu sse d Baiza ’ s pa r ticipati on in a pris o n sex offen der t reatment program. According to Du n ham, Baiza had made mini ma l progress in the program by the t ime of trial and demonstrated minimal understanding of treatment concepts. Baiza did not understand th at he i s a t risk to reoffend an d required m o re than a few more months o f sex offender treatmen t. Dunham c on ducted two te sts of Baiza, the Psychopathy Checklist R evised ( PCL

- R) a nd the Static 99R. The PCL

- R tests twenty c haracteristic s of psychopathy and de termine s w here a person falls o n a spectrum

. Du nham scor ed Baiz a within the high range for psy c h opat h y with the follow in g charac teristics , among others : need for stimulation, pron eness to bor edom, lacking empathy and being callous, poor behavioral controls , early be havior pro blems, impu lsivity , and conning and manipulat ive behavior

. As f or th e Stat ic 99R, it measures the ri sk of a sex offender being rea rrested or convicted of a sex offense in the future. Du nham opined that Baiza was in the highe st ri s k cate gory fo r reoffending. Dunha m also looked at risk reducin g factors for B a iza , which included ad m itt ing that he committed the sexual offenses for which he was convicted and a lack of prison disciplinary infractions for sexual misconduct

. Dunham c oncl u ded tha t the se f

actors did n ot sig nificantly reduce Baiz a ’ s risk. C onsidering a ll the factors, Du nham lab eled B a iza as high ris k of reoffending. He concluded that7

Baiza ’ s condition is c hronic, Baiza demonstrated the ina bility to c ontrol his behavior a nd s e xual im pulses ev en after bei ng incarcerated for sexual assault , and the tre at me nt h e received in pri so n w as insufficien t to reverse all his risks of reoffending

. Discussion
Baiza contends that the evidence is legally an d factually insufficient to supp ort t he jury ’ s find in g beyond a r easonable doubt that he has a behavioral abnormalit y that makes him likely to engage in a predator y act of sexual violence. Baiza also challenges the trial court ’ s ( 1) admission of Dunham ’ s testimony regarding unadjudicated and uncharg ed alle ga tions as evi dence for ming the basis of his opinion , and (2) lim iting instructions in t he jury charge regarding that evidence. We begin with a discussion of the statute and then turn to the issues

. I. The Texas Civil Commitment of S exually Vi o lent Pr eda tors Act The legis lature provided for the civil commitment of sexuall y violent predators und er the Texas Civil Commitment of Sexually Violent Predators Act (the Act) on a finding that “a small but extremely dangerous group of sexually

v iolent predators exi sts and that those predators have a behavioral abnormality that is no t amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repe ated predatory actions of sexual violence.” Tex. He a lth & Safety Code § 841. 001. The l egislature expressly found that “a civil commitment pro cedure for th e long

- term s upervision and treatment of sexually violent predators is necessary and in the inter est of the state.” Id

. Under the Act, a person is a sex u ally violent pred ato r if he (1) is a repeat sexually violent offender, and (2) suffers fr om a behavior al abnormalit y that makes him likely to engage in a predatory act of sexual violence. Id . § 841.003(a). A8

person must be adm inistratively determined to b e a sexually viole nt pred ator before the S tate fi les suit

. In re Bo hannan , 388 S. W.3d 296, 298 (Tex. 2012) ; see also Tex. He alth & Safety Code §§ 841.021

- . 023 . When the administrative determination is made, notice is given to an attorney representing the State. Tex. Healt h & Safety Co de § 841. 023.
A n attorney representing the State may file a civil commitment p roceeding in the court of conviction for the person ’ s most recent sexually violent offense after the person has been r e ferred to the S tate

. Id . § 841.041(a). If a jud g e or jury d etermines that t he person is a sexually violent predator, the trial court must commit the person for tre atment and supervision to begin on the date of release from prison and to continue “until th e person ’ s behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual vio lence.” I

d

. § 841.081(a).
II. Sufficiency Challenge
Baiza contends in his third and fourth issues that the evidence is leg a lly an d factually insufficient to support the j u ry ’ s findin g that he has a behavioral abnormality that makes him likely to eng a ge in a pr edatory act of sexual viol en ce on the basis that Dr. Du nham ’ s opinion is unreliable bec ause it is conclusory and specu l ative

. T he Act re quires the State to prove beyo n d a reasona ble doubt that a person is a sexually violent predator

. Id . § 841.062(a); see also In re F isher , 164 S.W.3d 637, 639

- 41 (Tex. 2005). For legal sufficiency challenges, we employ the c riminal standard of review in cases brought under the Act

. See In re Stod dard , 619 S. W.3d 665, 675 (Tex. 2020) . We must vie w the eviden ce in the ligh t most favorable to the prosecution and determine whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Id

. (c i ti ng Jackso n v. Virgini a ,9

443 U.S. 307, 319 (1979)). The Texa s Supreme Co urt recently c larified the distinction between legal and factual sufficiency standards of review in civil

c ommitment cases when , as here, the burden of proof is b eyond a reasonable d o ub t. Id

. at 668. In bot h legal and factual sufficiency review , we presume the factfinde r resolved disputed evidence in favor of the finding if a reasonable factfinder could do so, but we may not ignore und isputed facts contrary to a finding. Id

. at 676. A dis tinction arises in tr eatment of disputed evidence that a

r easonable fa ctfinder could not have credited in favor of a finding

— we disregard such disputed evidence in a legal suff i ciency review, but we consider this disputed evidence in a factual sufficie n cy review. Id

. Evidence is legally insufficient to support a jury findin g when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred b y rules of law or of evidence from giving weight to the only evidence offere d to prove a vital fact; ( 3) the evidence offered to prove a vi tal fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the oppo site of a vital fact. Gunn v. McCoy , 554 S.W.3d 645 , 658 (Tex. 2018)

. Evidence is factually insuf fi cie nt to su pport a jury finding under the Ac t when the eviden ce contrary to the finding is so significant in light of the entire record that the factfinder could not have determi n ed beyond a reasonable doubt that its finding was true

. Stoddard , 619 S.W.3 d at 668, 678

. According to Bai za, Dunham admitted that he fail ed to rely on t he following pur portedly important factors in forming his opinions : the percentage of risk of likel ihood t o reoffend , a local normative sample that wo uld involve comparing B a iza to o ther T exa s offend ers, and a diagnosis related to psychopathy . Ba iza also

a sserts that Dunh am failed to give proper w eight to positive factors of no sexual misconduct in prison, no p edo phile diagnosis, quitting dru gs and alcohol,10

involvement in a sex offe nd er treatm ent program , and the deterren t impa ct of Baiza ’ s incarc eration

. We address each of these factors in turn

. Percentage R isk for Reoffend ing

. Baiza scored a 6 on the Static 99R test , w hich measures someone ’ s risk of being rea r rested or reco nvi cted of a sex offense in the future based on static facto rs based on what has happened in the p ast

. Du nham testified that he does not report a percentage risk f or reoffe nding , also known as a pred ic tive recidivism rate, “ because it can be misleading for people who don ’ t quite understand this type of literature. ” He prefers to report a range of risk instead of a percentage

. W e have held that the Act does not requi re a

“ num erical or pe r cent age statement of whether a person is ‘ likely ’ to reo f fend. ” In

re Ausbie , N o. 14

- 18

- 00167

- CV, 2021 WL 1972407, at * 8 (Tex. App.

— Houston [14th Dist.] Ma y 18, 2021, no pet.) (sub. mem. op.). Instead, the question is whether the re are sufficient ind icia that a pers on has a condition causing predisposition toward violent sexual c ondu ct

. I d

. (citing Bohann an , 388 S.W.3d at 302

- 03 ). Accordingly, Du n ham was n o t required to opine on a percentage risk for

reo ffending to assess whether Baiz a has a behavioral abnormality th at makes him likely to eng a ge in a predatory act of sexual violen ce
. Local Normative Sample

. Du nham acknowledged that the authors of the Static 99R test suggest using a local normative sample compa rin g the test subject to other local offenders

. H e ag reed w ith Baiza ’ s counsel that the authors recommend using a Texas norm ativ e sam ple for a Texas o ffender , but he did not know what the “ percent sexua l recidivism rate ” would b e for someone like Baiza who s c ored a 6 on the test

. A g ain, the relevant qu esti on is no t based on the percentage likelihoo d that someone might reoffend. It is ba sed o n the overal l indicia showing someone is predisposed toward reof f ending. See id

. P s ychopa thy Diagnosis

. According to Bai za, Dunham offered co nflicting11

testimony as to whether B aiza had psychopathy. Dunham testified that he would consi der Bai za t o be a sexual psychopa th. Dunham cond ucted the PCL

- R ( Ps ychopathy Checklis t Revised ) on Baiza , which is a peer review ed and researched test, and scored him on a spectrum ba sed on 20 separ ate characteristic s. Dunham scored Baiza as within the high range of psych opathy. Du nham te stified that he considered Baiza to be a psychopath b ased on “ the conning and

ma nipulation and the grooming a nd . . . his stat eme nts that , I did it be cause I knew I wou ldn ’ t get caught. [These] are kind of classic lines that you h ear from people who are ps ychopat hic. ” According to Dunham, “ the presence of p s ychopath y ” was
a “ pretty significant ” ris k factor for reoffendin g. D u nham al so said he did not ma ke a dia gnosis based on psychopat hy

— “ t he diagnosis wo uld be antisocial personali ty d is ord er. ” We do not ag ree that this testimony crea tes a conflict in the ev i dence , but even if it did , i t is not within the province of this court to in terfere with the jury ’ s resolution o f conflicts in the evidence or to pass on the weight or credibili ty

o f the witness ’ s testim ony
. See Stoddard , 619 S.W.3d at 676 & n.12.
B a iza a l so relies on Dunham ’ s sta t ement that he di d not make a diagnosis of ps ychopa thy to support an arg ument that Dunh am failed to test for psychopat hy , which Baiza contends is requir ed u nder the Act. See Tex. Health & Safety Code § 841.023 (a) ( “ The expert sh al l make a clinical assessme nt based on testing for psychopathy, a clinical int erview, and other app r opriate asses sments and techniques to aid the department in its assessment. ” ). We d o no t agree that Du n ha m failed to test for ps ychopa thy based on the abov e referenced testimony. As d iscussed, Dunham testified in detail as to his admi nistration of the PCL

- R , the result s of the test, and his conclusion that he considered B a iza to be a psy chop ath.
Pos itive Fact ors
. B a iza also contends that Du nham failed to giv e appropriate w ei ght to fact ors that might contribut e t o a positive out come for Baiza ,12

including no instances of s exual misconduct in pri son , the lack of a pedo phile diagnosis, qui ttin g dr

u gs and alcohol, a nd the deterrent impa ct of Baiza ’ s 18

- y ear incarce ra tion

. Dunham addressed th e se factors and explained th e basis for his evalu ation regarding them. He said it was n ot unusual for an inmate who sexually assaulted children not to ha ve a ny s exual misconduct c ases because the inmate would not have access t o
c hi ldren. However, Baiza ’ s se xual offenses were not against only children, an d Dunham did not find him to be a pedo phile because Dunham did not have enough information to do so

. Dun ham did , however, conclude that Baiza displayed sexual deviancy as a condi ti on
. Dunham also ackno wledge d that B a iza had apparently stop ped using drugs and a lcohol after having used them in p rison for 12 years. Du nham opined , “ I ’ m not sure why it stopped. I t is not to say

. . . it i s not going to start up again when he is out. ” He al so ackno wledge d that B a iza was in a sex offender treatment program in prison. According to Du nham, Baiza had mad e minimal progress in the program by the t ime of trial and demonst rate d mi nimal understandin g of treatment concepts. Baiza did not understand th at he is a t risk to reoffe nd , an d he required more than a few more months o f sex offender treatment . Dunham acknowle dged that Baiza ’ s 18 years of incarceration could be a deterrent e ven thou gh the earl ier “ 1 or 2 years

w asn ’ t. ” Again, it is within the provin ce of the jury to pass on th e weight and credibility of the witness ’ s testimony

— we cannot do so

. See Stoddard , 619 S.W.3d at 676 & n.12

. Other Evi dence

. Du nham deter mined that Baiz a ’ s risk to reoffend is high bas ed on nu merous risk factor s: the diagn osis of antisocial pe rsonality disorde r, the complainant ’ s charact eristics, the timing and pattern of offending, the level of force and violence used, a nd the d isplay of sexual d evi ance. D u nham also13

identified other risk fa c to rs , including that Baiza committed sexual offenses while

on probatio n, while he was using drugs, and at locations where he could be discovered e asily, and that he gro omed the two chi ldren and offended against several categories of people

— children an d an ad ult, family member s and a stran ger. Baiza ’ s first in carceration for se xual offenses, moreover, d id not deter him from offending aga in.
Dunham also took into consideration Baiza ’ s b e havior as a juvenile, dr ug and alc ohol use, failure to comply with probati on, prison dis cipl inary cases, and entire criminal r ecord involving se xual and non sexual offense s
. 3 Dunham testified that b ased on a ll these factors and not just considering one thi ng in isolation , Baiz a ’ s sexual dev iance, antisocial personality dis order, and other risk fac tors create a “ pretty dangerous co mbination. ” Ac co rding to Dunham, Baiza canno t control his sexual impulses , he needs mor e treatment to reverse the risk factor s he had when he went to prison, his co ndition is chronic , and nothing s hows h is

c ondition has ch anged. Viewi ng the evidence in th e light most f av orable to the jury ’ s verdict , we conclude the evidence i s legally sufficient to support a finding beyond a reaso nable doubt that Baiza has a behavio ral abnormality that makes him l ikely to eng a ge in a pred atory act of sexual violen ce
. Mor e over, the evi de nce contrary to the finding i s not so significant in light of the entire record that the factfinder could not hav e determined beyond a reasonable doub t that its finding was true . Thu s , th e evidence is also f actually suff

i cient to support the jury ’ s verdi c t . We overrule B a iza ’ s third

a nd fourth issues. We turn to his other appellate issues

.

3 Baiza did not challenge Du nham ’ s metho d ology i n relying on nons exual o ffens es in formin g his opinion

.14

III. Admission of Evidence F ormi ng Basis of Expert Opinion
In his fir st issue, Baiza c hallenges the t rial court ’ s admission of evidence of unadjudicated and unc harged allega ti ons against Baiza that Dunham testifie d he relied on in forming his opinion. Baiza contends on appeal that the ev idence was unreliable hearsay , any pr obative value of th e evidence was out weigh ed by its preju dic ial effect under Texas Rul e of Evidence 705( d) , and a dmission of the eviden ce violated his due process rights. We re view evidentiary rulings for an abuse of di s cretion. Evidentiary rulings are com mitted to the trial court ’ s s ound dis cretion. U

- Haul Int ’ l , Inc. v. Waldrip , 380 S.W.3 d 118, 132 (Tex. 2 01 2) . A trial court abuses this discretion in acting without regard for guiding rules or principles. Id . Even if th e trial court abused its discretion i n admitting evidence, we only

reverse if the error was ha rmful , in other words , if it probably resulted in an improper judgment. Id

. Du nham testified that one of Baiza ’ s cousin s said that Baiza sexually assaulted him ab o ut four times over four years. Baiza ’ s counsel objected to hearsa y , which the trial court ove rruled

. Dunham testified that th e sexual abuse b e gan w hen Baiza ’ s cousin w as s ix and B a iza was fourteen

. Baiza ’ s counsel then objected on the basis that the testi mony was covered by a motion in limin e. The trial court dismissed the jury , and Baiza ’ s counse l objected outside of the presence of th e jury to testimony “ regarding unadju d icated conduct ” on th e following grounds : it was more prejudicial than probative and “ my client has due process rights

. ” The trial court rule d that Du nham cou ld testify there wer e unadjudicated offenses that formed th e basis of his opinion and could s pecif y the number of those offenses but could not go into the d etails

. After the jury ret urned, Dunha m testified that he relie d on unadjudicated offenses i n formin g his opinion and th at Baiza had

una d judicated offenses agai nst “ [o ]n e other person. And then othe r occasions with15

another person. ” Hearsay and Prejudice

. Rule 703 provides that “an expert may base an opinion on facts or data in the case that the expert h as been made aware o f, reviewed, or personally obser ved.” Te x . R. E vi d . 703. T he underly ing facts and data need not be admissible for the opinion to be admitted. Id

. U nder Rule 705 , experts may disclose suc h facts and d ata on direct examination or be requi red to disclose them on cross
- examination , and they may disc uss pri or offense s as part of the basi s for their opinions, including the details of other sexual assaults even if they ar e unadjudicated. Tex. R. Evid. 705(a) ; Ausbie , 2021 WL 1972407, at *7

. Thu s, even otherwise in admissible hearsay may be admissible und er Rule 7 03. See Ausbie , 2021 WL 19724 07, at *7

. But Rule 705 pr o hibits the proponent of the opinion from disclosing inadm issible facts or dat a “ if their proba tive value in helping the jur y evalua te the opinion is ou tweighed by their prejudicial effect. ” T ex. R. Ev id. 705 (d). Unadjudicated of

fenses are not necessarily more prejudicial than probative when they explain the bas is of an expert ’ s opinion. In re Gues t , No. 02

- 19

- 00 295

- C V, 2021 WL 1245087, at *8 (Tex. App.

— Fort Worth Apr. 1, 2021, p et. de nied) (mem. op.) ; see also In re Grice , 558 S. W.3d 323, 328 (Tex. App.

— Houston [14th Dist.] 2018, n o pet.) ( holding pr ejudice was limited by the fact that

“ very little infor mation regarding the un derlying facts was adduced ” and trial

“ c onta in ed a litany of allega tions of criminal and other antisocial behavior ” ) ; In re Stuteville , 463 S.W.3 d 543, 555

– 56 (Tex. App.

— Houston [1st Dist.] 2015, pet. deni ed) (holding t rial cou rt did not abus e its discretion by admitting e vidence of

un ch arged sexual offenses to expl ain basis of expert ’ s opinion that defendant suffered from behavioral abnormality). O u r court has up held a trial court ’ s decision to allow an ex pert to testif y about the details of unadjudicated offenses in16

a cas e brought und er the Act , and sister courts have repeatedly done the same

. See Grice , 558 S.W.3d at 328 (holding trial court did not abuse it s discretion by admitting evidence of two offense s that were o rigi nall y charge d as sex ual offenses but were subsequently reduced to nonsexual offenses because admission was not unfai rly prejudicial) ; see a lso Guest , 2021 WL 1245087, at *8 (hold ing trial court did not abuse it s discretion by admitting evid ence of unad judicate d sexual offenses because admission was not unfai rly prejud ic ial) ; In re Johnson , 613 S.W.3d 613, 618 (Tex. App.

— San Antonio, 2020 pet. denied) ( same ); In re Renshaw , 598 S.W.3d 303, 314 (Tex. App.

— Texarkana 2020, no pet .) (holding experts in ci vil

c ommitm ents may disclose underlying fa ct s that the expert relied on, including the details of adjudicated and unadjudicated sex ual assaults).
Dunham did not testify as to the details of any unadju di c a ted o ffenses a f ter the tri al court instructed h im n ot to, so t he jury hear d only the followin g information

. Baiza purportedly sexually assaulted his cousin four times over fo ur years , which started when Baiz a ’ s co usin was six and Baiza was fo urteen. This cousin was also the complai nant in one of the cases in which Ba iza was convicted , but these de ta ils involv ed additional purported unadjudicated offenses

. Dunha m also generally testified that he relied on unad judicated o ffenses in forming his opinion , including one offense a gainst o ne other per son and mor e than one o ff ense against another person

. 4 The jury als o heard evidence of Baiza ’ s prior offenses for which he was con victed, wh ich included sexually assaultin g two cousi ns when they were six and ten and sexually assault ing an adult woman. More over, the trial court inc luded a limiting instruction in the jury c h a rge that explained the scope and purpose of th e evidence, which we discuss in more detail below. We presume the jury followe d the court ’ s limiting instructions in the absence of evidence to the

4 On voir dir e, Dunh am mentioned a purported unadju dicated offense agains t a wom an, but the jury did not hear evidence p e rtaining to that incident

.17

con trary. 5 See J

oh nson , 613 S.W.3d at 618 ; see also Stuteville , 463 S.W.3d at 555.
W e cannot say on this record that the trial court abused its discreti on in determining that the probati ve value of the unadjudicated offense testimony was not substantially outw eigh ed by th e danger of unfair prej ud ice. Base d on this record, the trial court reasonably could have concluded that the limited facts and deta ils r ela ted to Baiza ’ s unadjudicated of fenses would be helpful to the jury in weigh ing Dunham ’ s testimony particu larly with r es pect to Dunham explaini ng the basis for his opinion that Baiza suf fers from a behavioral abnormality. See Guest , 2021 WL 1245087, at * 8 ; see also Grice , 558 S.W.3d at 3 28

. D ue Proc ess
. Baiza also conten ds that the evidence of unadjudicated of fenses was u nr eliable hearsay admitte d in vi olati on of his due process rights. In support, h e cit e s a n opinion from New York ’ s h ighest court in w hich the respondent argued on appeal that h i s right to due process was violated by the admission of expert t estimony i nvolvin g “ unreliab le, testimonial hearsay

. ” See State v . Floyd Y. , 2 N.E.3d 204 , 22 N.Y.3d 95 , 103 ( N. Y. 2013)

. Applying the framework for civil pro cedur al d ue process applicable in civil commit ment h e ar ings, the Court of Appeals of New York held tha t evidence of two unchar ged allegations of sexual abuse was based on unreliable hearsay and was admitted in violation of the respon den t ’ s due process rights

. Id

. at 110.

5 Baiza also asks this court not to follow precedent from the Ninth Court of Appeals involving admissibility of basis evi dence , but he cited a case from the First Court of Appeals. Stuteville , 463 S.W.3d at 556 (citing In re Alvarado , No. 09

- 13

- 00217

- CV, 2014 WL 1285136, at *10 11 (Tex. App.

— Beaumont Mar. 27, 2014, pet. denied) (mem. op.) (holding evidence of charged and unc harged sexual offenses was admissible), and In re King , No. 09

- 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 expert to testify about details of resp ondent ’ s past sexual offenses)). As discussed, our decision follows precedent from the Eleventh Court of Appeals and our own prec edent to the extent that it is consistent with the Eleventh Court’s precedent. Tex. R. App. P. 41.3.18

Texas courts apparently have n ot ad d ressed a due proces s challenge to the admission of unreliable h earsay evid ence that serves as the un derlying basis for an expert ’ s opinio n under the A ct

. Here, the evidence admitted was very limited, as disc usse d above , and Baiza invo ked Rule 705(d) ’ s bal a ncing test , which operates

as a safeguard requir ing the trial c ourt to d et ermine whether the prob ative v alue of the evide nce in he lping th e jury evaluate Dunham ’ s opin ion was outweigh ed by its prejudicial ef

fect. See Tex. R. Evid. 705(d). Rule 703 al so pr o vides a safeguard because an expert ’ s opinion based “ on facts o r data in t he case that the expert has been made aware of, reviewed , or personally observed ” is admissible only when

“ experts in the particular field would reasonably r ely on those kinds of fa c ts or data in forming an opinion on the subject. ” See Tex. R. E vid. 703. P resuming without decidi ng that despite these safeguards, Baiza c ould establish the admitted evidence was unreliable hearsay implicati ng hi s due process rights , he was also requ ired t o show , in lig ht of the whole record , that the trial court ’ s a d mission of the evidence probably c aused the rendition of an imprope r judgment

. See Tex. R. App. P. 4 4.1(a) ; Grice , 558 S.W.3d at 328 ; see also I n re M.P. , 220 S.W.3d 99, 113 (Tex. App.

—

Wa co 20 0 7, pet. denied) (applying harm analysis to due process challeng e) ; Bott v. Bott , 962 S.W.2d 626, 631 (Tex. App.

— Houston [14th Dist .] 199 7, no pet.) (same)

. A successful challenge to evidentiary rulings usual ly

re quires the complaining party to show t hat t h e judgment turns on the pa rticular evidence excluded or admitte d. Grice , 5 58 S.W.3d a t 329 ( citin g Tex. Dep ’ t of Transp. v. Able , 35 S.W.3d 608, 617 (Tex. 2000 ) )

. Here, the unadjudicated offenses were brief ly me ntioned , and few details were given. A dditi o nally , as discussed above, D unham provided ample support fo r hi s conclusio n that B a iza suffers fro m a behavioral abnor mality makin g him likely to en g age in a predatory act of sexual violence. See id . Dunham and B aiza himself19

te stified regarding numer ous c r iminal and other antisoci al acts committed by Baiza , includ ing four convic tions for sexual assault . Du nham further explained how h is diagnosis of Baiza and other specified factors informed Dunham ’ s opinion

. See i d . Based on the volume of evidence sup porti n g Dunham ’ s conclusions a nd the relatively brief mention of the challenged extraneous offenses,

we con clude that the judgment did n ot turn on the admitted evidence and that the trial court ’ s ruling did not pr obabl y cause the rendition of an improper j udgme n t. See Tex. R. App. P. 4 4.1(a)

. We overrule Baiza ’ s first issue

. IV. Limiting Instruction
Baiza chall enges in his second issue the tr ial court ’ s inclusion of a limiting instruction in the jury charge

. To preser ve a charge error complaint for appellate

r eview , a party must “point out d istinct ly th e objectionable matter an d the groun ds of the objection” bef

ore the charge is read to the ju ry. Tex. R. Civ. P. 272, 274; Saenz

- Guerrero v. Gardner , 587 S.W.3d 191, 193

– 94 (T ex. App.

— Houston [14th Dist. ] 2019, no pet. ) . “ All objections not so p resente d shall be considered as waive d .” Tex. R. Civ. P. 272 . Generally, preservation of charge e rror re quires the objecting party to make a complaint “timely and plainly” and obtai n a r uling from the trial court. State Dep ’ t of H ighways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992 ) ; Saenz

- Gu errero , 587 S.W.3d at 19 4

. The trial court instru cted th e jury : In this case , certain h earsay information contained in records review ed by an expert or experts was a dmitted bef ore y o u 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. Baiza did n ot object to the limiting instruction and i n fact requested a substant ially20

s imilar instruction

— [I] n this case, certa in hearsay information c ontained in rec ords was reviewed and re lie d upon by experts and will be presented to you through that expert’ s tes timony . Such hearsay evidence is being pres e nted to you only for the p urpose of showing the basis of the ex pert’s opin ion and cannot be consid ered as evidenc e to prove the tr uth of the matter asserted

. B ecause Baiza did not object to the tri al court ’ s lim iting instruction and in fact requeste d a s u bstantially similar instruction , h e did n ot preserve this issu e for

our re view. See Saenz

- Guerrero , 587 S.W.3d at 19 5 ; cf. Stutevi lle , 463 S.W.3d at 555 (holding respondent failed to rebut presumption that j ury f ollow ed limiting instructions when he neith e r object ed to the limiting instruc tion in cluded in the jury cha r ge nor req uest ed a different or ad ditional instructio n)

. W e overru le Baiza ’ s second issue. Concl usion
W e affirm the trial court ’ s order of civi l com mitment

.

/s/ Frances Bourliot Justice

Panel c onsis ts of Justices Bourliot, Zimmerer , and Spain.