in Re the Commitment of S.D. ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00129-CV
IN RE THE COMMITMENT OF S.D.
From the 54th District Court
McLennan County, Texas
Trial Court No. 2016-1391-2
MEMORANDUM OPINION
A jury found that Appellant Sylvester Dixon is a sexually violent predator, and the
trial court ordered Dixon civilly committed pursuant to the Civil Commitment of
Sexually Violent Predators Act (the SVP Act). See TEX. HEALTH & SAFETY CODE ANN. §§
841.003, 841.081. Dixon has appealed, contending in his sole issue that “[t]he trial court
committed reversible error by admitting evidence about [his] unadjudicated offenses.”
We will affirm.
Background
At Dixon’s civil-commitment trial, the State first offered, and the trial court
admitted as evidence, exhibits showing Dixon’s prior convictions for murder in 1972,
indecency with a child in 1980, indecency with a child in 1985, and indecency with a child
(habitual) in 1991. The State then called Dixon as its first witness. The State questioned
Dixon about the details of the 1972 murder. Dixon had pleaded guilty to the crime and
had been sentenced to thirty-five years’ imprisonment; however, Dixon acknowledged
that he had been released on parole in 1980. The State then questioned Dixon about the
details of the 1980 indecency-with-a-child offense. Dixon denied that he had committed
the crime; however, he acknowledged that he had pleaded guilty to the offense and that
he had been sent back to prison in 1980. Dixon had been sentenced to five years’
imprisonment for the 1980 indecency-with-a-child offense but had been released from
prison again in 1983.
The State was thereafter questioning Dixon about whether he had committed
sexual offenses against C.D., the victim of the 1985 indecency-with-a-child offense, when
the State asked Dixon about whether he had also committed sexual offenses against W.,
C.D.’s brother. Dixon has never been convicted of committing any offense against W.,
and, at trial, Dixon denied having committed any offense against W. Dixon also denied
that he had committed any offense against C.D., but he stated that he had pleaded guilty
to the 1985 indecency-with-a-child offense1 and that he had been sent to prison for the
third time in 1985. Dixon had been sentenced to ten years’ imprisonment for the 1985
indecency-with-a-child offense but had been released again in 1988.
The State then questioned Dixon about whether he had committed sexual offenses
against R. Like W., Dixon has never been convicted of committing any offense against
1 The trial court’s judgment indicates that Dixon actually pleaded nolo contendere.
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R., and, at trial, Dixon denied having committed any offense against R. The State also
asked Dixon about whether he had committed sexual offenses against J. Like W. and R.,
Dixon has never been convicted of committing any offense against J., and, at trial, Dixon
denied having committed any offense against J. Dixon testified that he had, however,
remained in jail while the case regarding J. was pending.
The State was thereafter questioning Dixon about whether he had committed
sexual offenses against A.B., the victim of the 1991 indecency-with-a-child offense, when
the State asked Dixon about whether he had also committed sexual offenses against L.,
A.B.’s sister. Like W., R., and J., Dixon has never been convicted of committing any
offense against L., and, at trial, Dixon denied having committed any offense against L.
Dixon also denied that he had committed any offense against A.B.; however, Dixon
admitted that he had pleaded guilty to the 1991 indecency-with-a-child offense, had been
sentenced to forty years’ imprisonment for the crime, and had returned to prison for the
fourth time in 1991.
Dixon testified that while in prison for the fourth time, he had been in a sex-
offender treatment program for approximately sixteen months. Dixon stated that he had
then been released from prison again in May 2006, at which time he had moved into a
halfway house for about two years. Dixon said that he had participated in sex-offender
treatment at the halfway house as well. Dixon acknowledged, however, that his parole
had then been revoked and that he had been sent back to prison in May 2008. When the
State asked Dixon about whether his parole had been revoked because he had sexually
assaulted another resident in the halfway house, Dixon initially denied it, but, after
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further questioning, Dixon acknowledged that he had committed a sexual offense against
another resident of the halfway house.
Finally, at the time of his trial in January 2017, Dixon testified that he was set to be
released from prison again in early 2018. Dixon acknowledged that he was no longer in
sex-offender treatment. The State then asked Dixon, “But you do realize that you need
further help so you can avoid creating more victims?” Dixon replied, “Well, I don’t think
so, because when I - - because when I was out - - when I was out, I - - I didn’t mess
with no kids. I didn’t go around them.”
After Dixon testified, the State called psychiatrist Dr. Michael Arambula as a
witness. Dr. Arambula testified that he was asked to evaluate Dixon to determine
whether Dixon has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. Dr. Arambula explained that in conducting his
evaluation, he interviewed Dixon and also “looked at the investigative and legal records
associated with all of Mr. Dixon’s offenses,” including the investigative records for
offenses that did not lead to convictions. Based on his evaluation of Dixon and his review
of the records, Dr. Arambula opined that Dixon has a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. Dr. Arambula testified that the
clinical diagnosis that correlates to Dixon’s sexual deviance is pedophilia—a typically
chronic condition in which someone is sexually attracted to children and acts on his or
her urges and sexual preferences. Dr. Arambula further stated that he has also diagnosed
Dixon with a personality disorder with antisocial features.
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Dr. Arambula then testified that the facts of each sexual offense were important in
helping him reach his opinion regarding Dixon. The State asserted that it therefore
wanted to ask Dr. Arambula about each of Dixon’s sexual convictions individually,
beginning with the 1980 indecency-with-a-child conviction. In response to the State’s
questioning, Dr. Arambula testified that the types of records that he reviewed and relied
upon with regard to the offense were investigative records, including statements taken
from the victim. When the State asked Dr. Arambula what the records said about the
offense, the following exchange took place:
[Dixon’s Counsel]: Objection, Your Honor. I’m going to
object to hearsay. I’m also going to request - -
THE COURT: Overruled.
[Dixon’s Counsel]: Your Honor, I’m also going to request a
running hearsay instruction regarding the information contained in Dr.
Arambula’s records that he reviewed.
....
THE COURT: Okay. I overrule the objection, give you a
running objection.
[Dixon’s Counsel]: And may I request a limiting instruction?
THE COURT: Yes, you may.
Members of the Jury, hearsay is a statement the declarant does
not make while testifying at the current trial and a party offers in evidence
to prove the truth of the matter asserted in the statement. Generally,
hearsay information is not admissible. Certain hearsay information
contained in records reviewed by the expert may be admitted before you
through the expert testimony. Such hearsay information is admitted only
for the purpose of showing the basis of the expert’s opinion and to allow
you to assess the weight and credibility of the expert’s opinion. However,
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this hearsay information cannot be considered as evidence to prove the
truth of the matter asserted.
Dr. Arambula then testified about what the investigative records upon which he had
relied had said about the 1980 indecency-with-a-child offense, what Dixon had told him
about the 1980 indecency-with-a-child offense, and what significance Dixon’s
explanation of the offense had in light of the investigative records.
The State then began questioning Dr. Arambula about Dixon’s 1985 indecency-
with-a-child conviction. In response to the State’s questioning, Dr. Arambula first
explained the significance of the timing of this second sexual offense. Dr. Arambula then
stated that he had looked at the investigative records regarding the offense and that the
records indicated that there were two male victims in the case, C.D. and W. Like his
testimony regarding the 1980 indecency-with-a-child offense, Dr. Arambula thereafter
testified about what the investigative records upon which he had relied had said about
the 1985 indecency-with-a-child offense, what Dixon had told him about the 1985
indecency-with-a-child offense, and what significance Dixon’s explanation of the offense
had in light of the investigative records. Dr. Arambula’s testimony about the 1985
indecency-with-a-child offense also included testimony about an unadjudicated offense
that Dixon had allegedly committed against W.
The State then questioned Dr. Arambula as follows:
Q Were there any other alleged victims that you read about from
this same time period?
A Yes, ma’am.
Q And who was that?
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A Let’s see. There was another girl, uh, a 12 year old named
“[A.S.];” somebody named “[R.],” who was five; and then [J.] who was
2
nine.
Q And starting with [R.], what do the records indicated
happened with her?
[Dixon’s Counsel]: Objection, Your Honor. Again, mention
of these names, uh - - or alleged victims, these have not been substantiated.
THE COURT: Overruled.
THE WITNESS: The investigative records indicated that she
complained that he, um, used two fingers to rub her bottom. He rubbed
her privates and that it happened many times.
[Dixon’s Counsel]: Objection, Your Honor. Um, may I also
request a running objection under 403?
THE COURT: I grant you a running objection.
Q (BY [State’s Counsel]) Now, as far as, uh, [W.] and [R.] goes,
Mr. Dixon was not convicted of offending against them; is that right?
A That’s correct.
Q Uh, but do you still take that information into account
regarding your evaluation?
A Well, I don’t disregard it. I don’t attach as much weight if
somebody had not been convicted of it, uh, but I still - - it’s still there. And
so it’s important to consider everything in a medical evaluation.
The State then questioned Dr. Arambula about Dixon’s 1991 indecency-with-a-
child conviction. In response to the State’s questioning, Dr. Arambula first explained the
significance of committing another sexual offense after having spent time in prison twice
2 A.S. was the victim of the 1980 indecency-with-a-child offense.
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for similar offenses. When then asked whom the victim of this third sexual offense was,
Dr. Arambula replied that there were two victims indicated—A.B. and L. Like his
testimony regarding the 1980 and 1985 indecency-with-a-child offenses, Dr. Arambula
thereafter testified about what the investigative records upon which he had relied had
said about the 1991 indecency-with-a-child offense, what Dixon had told him about the
1991 indecency-with-a-child offense, and what significance Dixon’s explanation of the
offense had in light of the investigative records. Dr. Arambula’s testimony about the 1991
indecency-with-a-child offense also included testimony about an unadjudicated offense
that Dixon had allegedly committed against L.
Finally, the State asked Dr. Arambula about J. Dr. Arambula testified about what
the investigative records upon which he had relied had said about what had taken place
with J. This included testifying that the investigative records showed that J. had alleged
that Dixon had committed a sexual offense against him and testifying about the
significance of J.’s allegations. Dr. Arambula acknowledged in his testimony, however,
that the charges against Dixon with regard to J. were ultimately dismissed.
When then asked by the State if, other than committing the foregoing offenses
against children, Dixon had acted out sexually in any other way in recent years, Dr.
Arambula responded that during Dixon’s most recent time on parole, Dixon had been
sexually inappropriate at the halfway house where he had been living, which resulted in
the revocation of his parole. Dr. Arambula stated that the incident was significant
because Dixon had not accepted any responsibility for the incident even though, at the
time, he had been in a sex-offender treatment program for a year and a half. Dr.
In re Commitment of S.D. Page 8
Arambula further testified that the recent records that he had reviewed also showed that
Dixon still has fantasies of children, which is very recent evidence of Dixon’s chronic
pedophilia.
Discussion
As stated above, Dixon contends in his sole issue that the trial court committed
reversible error by admitting evidence about his unadjudicated offenses. We assume
without deciding that Dixon has preserved this issue for appellate review, and we review
the trial court’s evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Dixon first argues that the admission of evidence about his unadjudicated offenses
violated Rule of Evidence 404. Rule 404(b)(1) prohibits the admission of evidence of a
crime, wrong, or other act “to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” TEX. R. EVID.
404(b)(1). The evidence about Dixon’s unadjudicated offenses, however, was not
admitted to prove his character in order to show that, on a particular occasion, he acted
in accordance with that character. Instead, as explained below, the evidence was
admitted to prove the allegations in the State’s petition that Dixon is a sexually violent
predator as defined by the SVP Act.
Under the SVP Act, a person is a sexually violent predator if the person “(1) is a
repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes
the person likely to engage in a predatory act of sexual violence.” TEX. HEALTH & SAFETY
CODE ANN. § 841.003(a). Regarding the first element, a person is a repeat sexually violent
In re Commitment of S.D. Page 9
offender if, as relevant here, the person is convicted of more than one sexually violent
offense and a sentence is imposed for at least one of the offenses. Id. § 841.003(b).
Regarding the second element, a “behavioral abnormality” is defined as “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 that the person
becomes a menace to the health and safety of another person.” Id. § 841.002(2). A
“predatory act” is defined as “an act directed toward individuals, including family
members, for the primary purpose of victimization.” Id. § 841.002(5).
Evidence about the accused’s past sexual offenses, both adjudicated and
unadjudicated, assists in demonstrating whether the accused has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence—the
ultimate issue that the jury must determine in an SVP Act case. See In re Commitment of
Miller, 262 S.W.3d 877, 894 (Tex. App.—Beaumont 2008, pet. denied). Such evidence
assists in demonstrating whether the accused has a behavioral abnormality even if the
evidence is presented through a witness other than an expert. Therefore, the trial court
did not abuse its discretion in allowing the State’s line of questioning to Dixon about the
unadjudicated offenses before Dr. Arambula had explained how he used the offenses in
forming his opinion. Nevertheless, having an expert in an SVP Act case explain the facts
he considered, including the accused’s past sexual offenses, both adjudicated and
unadjudicated, and how those facts influenced his evaluation, also assists the jury in
weighing the expert’s opinion on the ultimate issue. In re Commitment of Stuteville, 463
S.W.3d 543, 555 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
In re Commitment of S.D. Page 10
The evidence about Dixon’s unadjudicated offenses was therefore admitted to
prove the allegations in the State’s petition that Dixon is a sexually violent predator as
defined by the SVP Act—not admitted to prove Dixon’s character in order to show that,
on a particular occasion, he acted in accordance with that character. Thus, the admission
of evidence about Dixon’s unadjudicated offenses did not violate Rule of Evidence 404(b).
See TEX. R. EVID. 404(b)(1); cf. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991)
(“Circumstances of the offense which tend to prove the allegations in the indictment are
not extraneous offenses.”).
Dixon next argues that in this case, the details of his unadjudicated offenses were
presented to inflame the passion of the jury and that the admission of such details caused
him substantial prejudice. Rule of Evidence 705(d) regarding expert testimony states that
“[i]f the underlying facts or data would otherwise be inadmissible, the proponent of [an
expert] 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.” TEX. R. EVID. 705(d).
Rule of Evidence 403 further provides that relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Id. R. 403. Factors considered when applying the Rule
403 balancing test “include the probative value of the evidence, the potential of the
evidence to impress the jury in some irrational way, the time needed to develop the
evidence, and the proponent’s need for the evidence.” See Stuteville, 463 S.W.3d at 555
In re Commitment of S.D. Page 11
(quoting In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.—Beaumont 2013,
pet. denied)).
Dixon first contends that the evidence about his unadjudicated offenses had little
probative value because Dr. Arambula did not give much weight to the unadjudicated
offenses. Dixon argues that this case is therefore unlike other cases in which the expert
relied on the accused’s adjudicated and unadjudicated offenses to formulate the expert’s
opinion that the accused had a behavioral abnormality. But Dr. Arambula did not testify
that, in conducting his evaluation, he did not give much weight to unadjudicated
offenses. Instead, Dr. Arambula testified that, in conducting his evaluation, he gave less
weight to unadjudicated offenses than he did to convictions but that it was important to
consider everything in a medical evaluation. Dr. Arambula’s testimony therefore
confirms that the evidence about Dixon’s unadjudicated offenses had probative value
and assisted the jury in understanding his opinion that Dixon suffers from a behavioral
abnormality. See id. at 556.
Dixon next argues that the explicit details of the unadjudicated offenses had a
strong potential to impress the jury in an irrational way. Dixon asserts that this is
particularly true because the State was allowed to question, and Dr. Arambula was
allowed to testify, about Dixon’s unadjudicated offenses “as if they were reliable and
resulted in final convictions (of which Dixon disputed)” instead of as the “raw allegations
that they actually are.” However, the State’s line of questioning and Dr. Arambula’s
testimony made it clear that some of the offenses were adjudicated while others were
unadjudicated. Furthermore, to deter Dr. Arambula’s testimony about the offenses from
In re Commitment of S.D. Page 12
impressing the jury in an irrational way, the trial court gave a limiting instruction to the
jury after Dixon objected that Dr. Arambula’s testimony about the information contained
in his records was hearsay. An almost identical limiting instruction was then included in
the jury charge. It stated in relevant part, “[C]ertain hearsay information contained in
records reviewed by an expert or experts was admitted before you through expert
testimony. Such hearsay was admitted only for the purpose of showing the basis of the
expert’s opinion and cannot be considered as evidence to prove the truth of the matter
asserted.” We presume the jury followed the trial court’s limiting instructions. See In re
Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied).
Dixon finally argues that the jury probably improperly based its decision on his
unadjudicated offenses given the amount of time that the State spent on its line of
questioning about the unadjudicated offenses. Dixon notes that, even during closing
arguments, the State showed the jury a PowerPoint slide that stated, “4 years free, 7 child
victims.” And the State declared: “So starting in 1966 up until, uh 2017, he has only been
four years free. Four years in the free world if you add it all up, from 1966 until 2017,
four years free. And we know at least seven child victims. Seven kids . . . .“ However,
given the purpose for admitting the evidence, as explained above, we conclude that the
admission of evidence about Dixon’s unadjudicated offenses was not unfairly prejudicial.
See In re Commitment of Winkle, 434 S.W.3d 300, 309 (Tex. App.—Beaumont 2014, pet.
denied) (“While Rule 403 of the Rules of Evidence allows the exclusion of relevant
evidence on special grounds, it should be used sparingly.”).
In re Commitment of S.D. Page 13
In light of the foregoing, we conclude that the trial court did not abuse its
discretion in admitting evidence about Dixon’s unadjudicated offenses. We therefore
overrule Dixon’s sole issue.
Conclusion
We affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
[CV06]
In re Commitment of S.D. Page 14