In Re Commitment of Charles Edward Ballard, III v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-23-00020-CV
IN RE COMMITMENT OF CHARLES EDWARD BALLARD, III
From the 82nd District Court
Falls County, Texas
Trial Court No. CV41068
MEMORANDUM OPINION
Appellant, Charles Edward Ballard III, was found to be a sexually violent predator
under the Sexually Violent Predator Act (“SVP Act”). See TEX. HEALTH & SAFETY CODE
ANN. §§ 841.001-.151. On appeal, Ballard contends that the trial court reversibly erred by
refusing to issue a limiting instruction regarding the disclosure of facts and data
underlying the basis of an expert opinion. We affirm.
Limiting Instruction
In his sole issue on appeal, Ballard complains that the trial court erred by refusing
to give a limiting instruction during the testimony of the State’s expert witness, Kyle M.
Clayton, Ph. D., pursuant to Texas Rule of Evidence 705(d). See TEX. R. EVID. 705(d).
Texas Rules of Evidence 703 and 705 allow a testifying expert to relate on direct
examination the reasonably reliable facts and data on which the expert relied in forming
the expert’s opinion, subject to an objection under Texas Rule of Evidence 403 that the
probative value of such facts and data is outweighed by the risk of undue prejudice. See
id. at R. 703, 705; Stam v. Mack, 984 S.W.2d 747, 750 (Tex. App.—Texarkana 1999, no pet.);
see also In re Commitment of Smith, No. 10-22-00254-CV, 2023 Tex. App. LEXIS 3340, at **2-
3 (Tex. App.—Waco May 17, 2023, no pet. h.) (mem. op.). In particular, Rule 705(d)
provides, in part, “[i]f the court allows the proponent to disclose those facts and data the
court must, upon timely request, restrict the evidence to its proper scope and instruct the
jury accordingly.” TEX. R. EVID. 705(d).
In the instant case, the following exchange occurred, which serves as the basis for
Ballard’s complaint on appeal:
Q [State’s Attorney]: And so what was the first sexual offense he was
convicted of?
A [Dr. Clayton]: The first sexual offense was an aggravated
sexual assault of a child against his step-brother
....
Q: And can you briefly tell us what do the records
indicate happened with this offense?
[Defense counsel]: And at this time[,] I’m going to have to object to
hearsay based on the probative value of this
being—not being outweighed by the prejudicial
value, and I would also request a limiting
hearsay if you obj—if you rule against my
hearsay objection.
In re Commitment of Ballard Page 2
THE COURT: Okay. Your objection is overruled and I’m
going to give your hearsay instruction in the
Charge. Alright. But I’m not going to give it
right now.
To present a complaint for appellate review, the record must show that a
complaint was made to the trial court that “stated the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds were apparent from the
context[.]” TEX. R. APP. P. 33.1(a)(1)(A). Ballard neither informed the trial court nor made
it aware that, pursuant to Rule 705(d), Ballard requested a contemporaneous instruction
to the jury. The specific ground now raised by Ballard was also not apparent from the
context of his complaint at trial.
Similarly, in another recent civil commitment appeal, this Court concluded that
appellant did not preserve his complaint regarding the trial court’s refusal to give the
jury a contemporaneous limiting instruction regarding hearsay under Rule 705(d) where
appellant made the following requests: “at this time I would request the Court issue a—
a hearsay instruction to the jury regarding these records” and “I still would request that
you instruct the jury about regarding the hear—hearsay instruction that we submitted.”1
Smith, 2023 Tex. App. LEXIS 3340, at *4 n.4. Therefore, based on the foregoing, we
1 This Court further noted that “[n]o submitted instruction is included in the record.” In re
Commitment of Smith, No. 10-22-00254-CV, 2023 Tex. App. LEXIS 3340, at *4 n.4 (Tex. App.—Waco May 17,
2023, no pet. h.) (mem. op.).
In re Commitment of Ballard Page 3
conclude that Ballard did not preserve this complaint.2 We overrule Ballard’s sole issue
on appeal.
Conclusion
We affirm the judgment of the trial court.
STEVE SMITH
Justice
Before Chief Justice Gray
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed June 14, 2023
[CV06]
2 And even if Ballard had preserved this complaint, we cannot say that he was harmed considering
that the trial court included a limiting instruction on hearsay in the jury charge and that Ballard testified
about the offense that Dr. Clayton was describing when defense counsel objected. See TEX. R. APP. P.
44.1(a)(1) (stating that no judgment may be reversed on appeal on the ground that the trial court made an
error of law unless the court of appeals concludes that the complained-of error probably caused the
rendition of an improper judgment); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004)
(“Clearly, erroneous admission [of evidence] is harmless if it is merely cumulative.”); see also In re
Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied) (stating that appellate
courts presume the jury followed the trial court’s limiting instruction).
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