in Re: the Commitment of Julio Pineda ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00200-CV
___________________________
IN RE: THE COMMITMENT OF JULIO PINEDA
On Appeal from the 16th District Court
Denton County, Texas
Trial Court No. 19-6054-16
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Julio Pineda appeals the trial court’s judgment civilly committing him
as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001–.062.
In one issue, Pineda complains that the trial court erroneously admitted experts’
underlying-facts-or-data testimony under Texas Rule of Evidence 705(d). We
overrule Pineda’s issue because
(1) Pineda himself testified about two persons who had alleged that Pineda had
sexually abused them, so to the extent that the experts testified about the
allegations from these same two people, any error was harmless;
(2) after the trial court initially sustained Pineda’s Rule 705(d) objection to
testimony about a third person’s allegation that Pineda had sexually abused her,
the trial court did not abuse its discretion by later admitting testimony about
this third person’s allegations to allow the State to rebut Pineda’s expert’s
misleading testimony that no other children had made allegations of sexual
abuse against Pineda; and
(3) other unadjudicated allegations of sexual abuse from two other children—
about which Pineda did not complain at trial and does not complain about on
appeal—came in without objection, so any purported error was harmless.
We affirm.
I. Pineda’s Criminal Background
In 2016, Pineda pleaded guilty to and was convicted of two counts of
aggravated sexual assault against a child named Larry,1 two counts of indecency with a
1
We use aliases when referring to minors and their family members to protect
the minors’ identities. See In re L.R., No. 02-19-00377-CV, 2020 WL 6788933, at *1
n.1 (Tex. App.—Fort Worth Nov. 19, 2020, no pet.) (mem. op.); Tufts v. State, No. 02-
19-00143-CR, 2020 WL 5242431, at *1 n.1 (Tex. App.—Fort Worth Sept. 3, 2020,
pet. ref’d) (mem. op., not designated for publication).
2
child by contact against the same child named Larry, and one count of indecency with
a child by contact against a child named Charles. For all five convictions, Pineda
received eight-year sentences that ran concurrently.
II. The Civil Commitment Trial
Moving forward to 2020 and Pineda’s civil commitment trial, both the State’s
expert and Pineda’s expert relied on the same report—a report including allegations
that Pineda had engaged in sexual misconduct with persons other than Larry and
Charles. Pineda questioned the reliability of these other allegations, argued that their
prejudicial effect outweighed their probative value, and opposed the experts’ testifying
about them. Pineda based his objection on Texas Rule of Evidence 705(d), which
provides,
(d) When Otherwise Inadmissible Underlying Facts or Data May
Be Disclosed; Instructing the Jury. If the underlying facts or data
would otherwise be inadmissible, the proponent of the opinion may not
disclose them to the jury if their probative value in helping the jury
evaluate the opinion is outweighed by their prejudicial effect. If the
court allows the proponent to disclose those facts or data the court
must, upon timely request, restrict the evidence to its proper scope and
instruct the jury accordingly.
Tex. R. Evid. 705(d).
Specifically, Pineda objected to three categories of other alleged sexual
misconduct:
1. His sexual relationship with a man named David, a member of Pineda’s
church whom Pineda was mentoring;
3
2. A mentally ill coworker’s2 allegation of sexual abuse that resulted in Pineda’s
getting fired; and
3. Pineda’s close relative’s (Barbara’s) allegation that he had sexually abused
her.3
The trial court sustained Pineda’s objection as to Barbara’s allegations, overruled it as
to David’s and the coworker’s, and granted a running objection to the testimony
regarding David’s and the coworker’s allegations.
III. Standard of Review
We review a trial court’s evidentiary rulings under an abuse of discretion
standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). A
trial court abuses its discretion if it acts without reference to any guiding rules or
principles, that is, if it acts arbitrarily or unreasonably. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998); see Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). If the record supports
any legitimate basis for the trial court’s evidentiary ruling, we uphold it. Owens-Corning
Fiberglas Corp., 972 S.W.2d at 43; In re Commitment of Cain, No. 02-18-00043-CV, 2018
WL 5993335, at *2 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.).
Pineda disclosed the coworker incident to his expert witness during a
2
deposition; Pineda did not know the coworker’s name.
Barbara made her outcry to Child Protective Services, so she was presumably a
3
child when she made the outcry.
4
Experts in civil proceedings to commit sexually violent predators may disclose
details about the underlying facts or data—including the details of unadjudicated
sexual assaults—that they relied on in arriving at their opinions. See In re Commitment of
Stuteville, 463 S.W.3d 543, 554–56 (Tex. App.—Houston [1st Dist.] 2015, pet. denied);
see also In re Commitment of Talley, 522 S.W.3d 742, 748–49 (Tex. App.—Houston [1st
Dist.] 2017, no pet.). Having experts explain the facts they considered and how those
facts influenced their evaluations assists the jury in weighing the expert’s opinion
about the presence or absence of behavioral abnormality in the defendant, which is
the issue that jurors must determine. See Stuteville, 463 S.W.3d at 555; see also Talley,
522 S.W.3d at 748–49; In re Commitment of Young, 410 S.W.3d 542, 557 (Tex. App.—
Beaumont 2013, no pet.). Such evidence, however, is subject to the same relevancy
constraints that govern other kinds of evidence. See Talley, 522 S.W.3d at 748 (citing
Tex. R. Evid. 403, 705(d)); In re Commitment of Farro, No. 01-18-00164-CV, 2018 WL
6696567, at *10 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, pet. denied) (mem.
op.); In re Commitment of Marshall, No. 02-17-00452-CV, 2018 WL 4354402, at *6 (Tex.
App.—Fort Worth Sept. 13, 2018, no pet.) (mem. op.).
To preserve error in the admission of evidence, a party must make a timely
objection; an objection is timely if it is made when the evidence is offered. See Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 409–10 (Tex. 1998). The objection must
identify the objectionable evidence, identify the rule or legal principle that bars
admitting the evidence, and explain how the evidence violates the rule or legal
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principle. See Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex. App.—Amarillo
2001, pet. denied); Burleson v. Finley, 581 S.W.2d 304, 310 (Tex. App.—Austin 1979,
writ ref’d n.r.e.). Even if a party timely objects, if substantially similar evidence is
subsequently presented to the jury without objection, any error is deemed harmless.
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008); see Volkswagen
of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).
A party may request a running objection by describing the scope of
objectionable evidence and asking the court to grant a running objection covering all
subsequent evidence that fits that description. Volkswagen of Am., Inc., 159 S.W.3d at
907. A running objection must be specific and is waived if the party fails to object to
similar evidence that is not covered by the running objection. Lubbock Cty. v. Reyna,
No. 07-19-00330-CV, 2021 WL 45678, at *3 (Tex. App.—Amarillo Jan. 5, 2021, pet.
filed) (mem. op.); Harris Cty. Flood Control Dist. v. Taub, 502 S.W.3d 320, 327 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied); Huckaby v. A.G. Perry & Son, Inc., 20
S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied); see Volkswagen of Am., Inc.,
159 S.W.3d at 907.
IV. Discussion
A. David
Even without the experts’ testimony, the jury learned that Pineda had a sexual
relationship with David and that David had alleged that the relationship was
nonconsensual. Pineda pleaded his Fifth Amendment right against self-incrimination
6
when asked whether he had harmed David or had physically threatened him or his
wife. See U.S. Const. amend. V. 4 According to Pineda, David, not he, had prompted
their sexual relationship: “If he initiated everything, how is it that I assaulted him?”
Pineda maintained that he and David had consensual sex and that even after Pineda
had gotten married, his relationship with David had continued for another four years.
Despite the purported consensual nature of their relationship, Pineda was aware that
David had alleged that Pineda had forced him into having sex, but Pineda denied the
allegations.
Because Pineda was not an expert, his running Rule 705(d) objection did not
cover his testimony. See Lubbock Cty., 2021 WL 45678, at *3; Huckaby, 20 S.W.3d at
203; see also Tex. R. Evid. 705. And because Pineda himself provided evidence that
was substantially similar to that presented by the experts regarding David, any error in
admitting the expert’s evidence was harmless. See Reliance Steel, 267 S.W.3d at 873;
Lubbock Cty., 2021 WL 45678, at *3.
B. The Coworker
While testifying, Pineda denied that anyone other than David, Larry, and
Charles had ever accused him of sexual abuse. Later, though, Pineda acknowledged
4
When a witness invokes the Fifth Amendment in a civil case, a factfinder may
draw reasonable inferences. In re Commitment of Gipson, 580 S.W.3d 476, 486 (Tex.
App.—Austin 2019, no pet.). Although the jury is free to draw a negative inference,
asserting the privilege does not substitute for relevant evidence. Id. at 487. Without
some other probative evidence, any negative inference drawn from a witness’s
invoking the right against self-incrimination cannot rise beyond mere suspicion. Id.7
that a mentally ill coworker had alleged that Pineda had wanted to sexually abuse him
and that, as a consequence, Pineda was fired.
Once again, Pineda was not an expert, so any running Rule 705(d) objection
afforded him no help. See Lubbock Cty., 2021 WL 45678, at *3; Huckaby, 20 S.W.3d at
203; see also Tex. R. Evid. 705. Consequently, when Pineda himself provided evidence
that was substantially similar to that presented by the experts about the coworker, he
rendered any error harmless. See Reliance Steel, 267 S.W.3d at 873; Lubbock Cty., 2021
WL 45678, at *3.
C. Barbara
As noted earlier, the trial court initially sustained Pineda’s Rule 705(d) objection
to Barbara’s allegations. Later, however, that evidence came in anyway.
On direct, Pineda’s expert was asked how Pineda had described his past
relationships with children, and Pineda’s expert responded that Pineda himself had
children and nephews, that Pineda thus had been around other children, and that
Pineda had “describe[d] having positive, healthy, safe relationships with other
individuals.” But outside the jury’s presence, the State argued that Pineda’s expert had
misled the jury: “[B]eyond these two boys [(Larry and Charles)], [he asserted that
Pineda had] been safe around other children. He’s been safe around I think nephews
and his sons. But I feel like this paints an inaccurate picture to the jury because [a
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close female relative] has accused him of sexually abusing her.”5 Pineda argued Rule
705 again and how the allegations lacked any reliability. This time, however, the trial
court sided with the State and ruled that it could cross-examine Pineda’s expert about
Barbara’s allegations.
And the State did just that. The State asked Pineda’s expert whether any
children other than Larry and Charles had made any sexual-abuse outcries against
Pineda. Pineda objected on the bases of relevance and hearsay.6 The trial court
overruled those objections, and Pineda’s expert stated that Barbara had also made an
outcry against him.
1. Relevance
A party can make otherwise irrelevant evidence relevant by injecting collateral
issues into a lawsuit or by presenting misleading testimony. Bay Area Healthcare Grp.,
Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); In re C.F.M., No. 05-16-00285-CV,
2018 WL 1704202, at *10 (Tex. App.—Dallas Apr. 9, 2018, pet. denied) (mem. op.);
Robinson v. Garcia, No. 11-12-00295-CV, 2016 WL 1725297, at *10 (Tex. App.—
Eastland Apr. 29, 2016, pets. denied) (mem. op. on reh’g). Courts refer to this as
“opening the door,” and once a party opens the door, the opposing party may offer
rebuttal evidence. Bay Area Healthcare Grp., 239 S.W.3d at 234. Not permitting
5
In fairness to Pineda’s expert, the trial court had previously sustained Pineda’s
Rule 705(d) objection to any testimony about Barbara’s allegations.
6
We conclude that contextually, the trial court would have understood those
objections within the framework of Rule 705(d). See Tex. R. App. P. 33.1(a)(1)(A).
9
rebuttal evidence may constitute an abuse of discretion. See Robinson, 2016 WL
1725297, at *10.
After reviewing Pineda’s expert’s testimony, the trial court asserted that his
testimony was misleading and, effectively, had opened the door: “[Pineda’s expert’s
testimony] left a different impression in the mind of the jury than what this outcry by
[Barbara] would suggest and what was reported to the parole board. So I’m going to
allow [the State] to ask [him] questions [about] that when [it] cross-examine[s] him.”
We hold that the trial court did not abuse its discretion by concluding that Pineda’s
expert’s testimony (that Pineda described himself as having safe relationships with
other children) had made the expert’s knowledge to the contrary (Barbara’s
allegations) relevant. See Bay Area Healthcare Grp., 239 S.W.3d at 234; C.F.M., 2018
WL 1704202, at *10; Robinson, 2016 WL 1725297, at *10.
2. Hearsay
Texas Rule of Evidence 801 generally excludes out-of-court statements offered
for the truth of the matter asserted. Tex. R. Evid. 801; In re Commitment of Johnson, 613
S.W.3d 613, 617 (Tex. App.—San Antonio 2020, pet. denied), cert. denied sub nom.
Johnson v. Texas, No. 20-7774, 2021 WL 2044634 (U.S. May 24, 2021). But provided
the probative value outweighs the prejudicial effect, experts may testify to facts and
data underlying their opinions even if that basis includes hearsay. Tex. R. Evid.
705(d); Johnson, 613 S.W.3d at 617. In civil proceedings to commit sexually violent
predators, this includes evidence of unadjudicated offenses provided that evidence
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helps the jury understand and weigh an expert’s testimony regarding whether a person
has a behavioral abnormality. Johnson, 613 S.W.3d at 617.
Pineda’s expert’s testimony left the jury with the impression that, apart from
Larry and Charles, Pineda had safe relationships with other children. Regardless of
the veracity of Barbara’s allegations, they raised concerns that something about Pineda
and Barbara’s relationship was seriously amiss.
The jury heard testimony that Barbara did not make the allegations until after
Pineda had been incarcerated, that Child Protective Services had closed the case
administratively, that Pineda’s ex-wife had opposed Pineda’s having any
communication or contact with Pineda’s male children, and that Barbara had made
inconsistent statements about whether Pineda had abused her. 7 As a result, the jury
was aware that Barbara’s allegations might have been nothing more than that—
allegations.
Pineda’s expert testified that Pineda did not meet the behavioral-abnormality
criteria. When explaining his reasoning, he gave testimony that left the jury with the
false impression that Pineda had no other allegations involving children, but the truth
was that one of Pineda’s own close relatives had accused him of sexually abusing her.
Other evidence suggested that the allegations might have been suspect. Overall, the
information helped the jury understand and weigh Pineda’s expert’s testimony that
7
Pineda and his ex-wife had two children together. Barbara was biologically
related to Pineda but not to Pineda’s ex-wife.
11
Pineda did not have a behavioral abnormality—a conclusion the expert arrived at
despite allegations of incestuous sexual abuse from Barbara. See id. at 618 (“In [a] case
[involving a sexually violent predator], an expert’s opinion regarding risk assessment is
pivotal, and it is important for a jury to be able to consider and scrutinize how the
testifying expert arrived at his opinion in order for the jury to arrive at its own
conclusion.”). We hold that the trial court did not abuse its discretion by concluding
that this hearsay’s probative value outweighed its prejudicial effect and by admitting
this evidence. See Tex. R. Evid. 705(d); Johnson, 613 S.W.3d at 617.
D. Harmless
Even if we were to hold that admitting the disputed testimony was an abuse of
discretion, Pineda cannot show harm.
Pineda did not object to a fourth category of alleged unadjudicated sexual
misconduct. The State’s expert testified that both Larry and Charles alleged that
Pineda had sexually abused them up to four times a week for four years, which added
up to perhaps as many as 1,664 total instances of sexual abuse. This number greatly
exceeded Pineda’s four convictions involving Larry and one conviction involving
Charles.
Pineda denied touching Charles for over four years and maintained that there
was only one incident involving him.
As for Larry, Pineda testified about three occasions when he sexually abused
him. As we understand Pineda’s testimony, the four convictions involving Larry were
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the product of these three incidents, but the indictments alleged four different “on or
about” dates—April 15, 2005; March 15, 2006; September 15, 2006; and April 1,
2008. In any event, Pineda said that 1,664 was nowhere close to the number of times
that he had abused Larry and Charles. As a result, by a multiple of over 300, a chasm
existed between the number of offenses that Pineda admitted committing and the
number of offenses that Larry and Charles alleged that he had committed.
Other unobjected-to evidence showed aggravating factors. At the time that
Pineda committed the offenses against Larry and Charles, Pineda was a pastor at a
church. Pineda acknowledged that as pastor of the church, he would minister to
couples, including Larry and Charles’s parents—David and David’s wife. David was
Larry and Charles’s stepfather. Pineda thus had sexual relations with both David and
David’s stepchildren while ministering to David and David’s wife.
We reverse a trial court’s judgment only if an erroneous evidentiary ruling
probably, though not necessarily, caused the rendition of an improper judgment. U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012); Reliance Steel, 267 S.W.3d at
871. We are not persuaded that any purported error probably caused the rendition of
an improper judgment.
Although Pineda questioned the reliability of the accusations against him, the
jury could have reasonably questioned Pineda’s credibility. Pineda’s own expert found
evidence that Pineda engaged in pathological lying. As the exclusive factfinders, the
jurors decide which witnesses were credible, what weight to assign the various
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witnesses’ testimony, and how to resolve any conflicts or inconsistencies in the
testimony. In re R.W., 129 S.W.3d 732, 742–43 (Tex. App.—Fort Worth 2004, pet.
denied). Thus, despite Pineda’s contention that the other allegations of sexual abuse
were dubious, the jury was free to believe that—as the State’s expert opined—with
that much smoke, a person could justifiably suspect a fire:
Well, I have to look at [the allegations of unadjudicated offenses]. I
think it wouldn’t be ethical not to look at [them]. If something is
alleged, [that] certainly doesn’t mean it did not happen. And I’m trained
to use sort of a credibility filter whenever I’m looking at these.
And one incident by itself is not as significant. But it’s kind of
like smoke, smoke, smoke, fire. That there’s like a pattern that seems to
be going on. In particular, vulnerable type individuals for Mr. Pineda.
And I don’t see that . . . any of these people knew each other of the
three additional victims.
And so I don’t see the motivations of people to come forth and
say lies. So when you kind of put everything together, that is what I do
is I look for patterns of behavior and think it makes a lot of sense.
Put another way, the volume of unadjudicated allegations were themselves significant
and factored into his opinion. Lending credence to the allegations—at least to the
extent that the expert said that ignoring them would be unethical—was the fact that
the allegations were coming from disparate sources and showed a pattern of betraying
trust or abusing innocence.
Viewing the number of alleged offenses against Larry and Charles, given the
four years during which the alleged abuse against them purportedly occurred, and
seeing how Pineda admitted abusing Larry and Charles while ministering to their
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parents—a gross abuse of trust—we hold that the experts’ testimony about David (an
adult theoretically capable of defending himself), the coworker (a person who despite
any mental illness defended himself by reporting the attempted abuse), and Barbara
(whose alleged abuse roughly paralleled the abuse alleged by Larry and Charles) was
harmless. See U-Haul Int’l, Inc., 380 S.W.3d at 136; Reliance Steel, 267 S.W.3d at 871.
For all the above reasons, we overrule Pineda’s issue.
V. Conclusion
Having overruled Pineda’s issue, we affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: August 26, 2021
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