In Re: Commitment of Timothy Lynn Loving, Jr. v. the State of Texas

NO. 12-22-00282-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§ APPEAL FROM THE 159TH
IN RE: COMMITMENT OF
§ JUDICIAL DISTRICT COURT
TIMOTHY LYNN LOVING, JR.
§ ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION
Timothy Lynn Loving, Jr. appeals his commitment following the trial court’s
adjudication that he is a sexually violent predator. In one issue, Loving contends that the trial
court abused its discretion in admitting testimony from the State’s expert witness in response to a
question which presumed a standard not recognized in the scientific community. We affirm.

BACKGROUND
Loving is an inmate, who currently is serving an eighteen-year sentence for aggravated
sexual assault of a child, and who previously was convicted of and incarcerated for sexual assault
of a child. On September 16, 2021, the State filed a petition seeking to have Loving adjudicated
a sexually violent predator and committed for treatment and supervision pursuant to Texas
Health and Safety Code, Chapter 841. A jury found beyond a reasonable doubt that Loving is a
sexually violent predator. On that basis, the trial court entered a final judgment and order of civil
commitment. Loving filed a motion for new trial, which was overruled. This appeal followed.
ADMISSIBILITY OF EVIDENCE
In his sole issue, Loving argues that the trial court abused its discretion in admitting
testimony from the State’s expert witness which improperly was bolstered by the phrase “beyond
a reasonable degree of scientific certainty.”1
Standard of Review
Evidentiary rulings are committed to the trial court’s sound discretion. Bay Area
Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). We review a trial court’s
decision to admit or exclude evidence for an abuse of that discretion. In re J.P.B., 180 S.W.3d
570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without reference to any
guiding rules and principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must
uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens–
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Expert Testimony
In the instant case, Forensic Psychologist/Neuropsychologist Jennifer McGarrahan
testified on behalf of the State. She described the evaluations she performs in such cases as
consisting of the review of records, in-person and clinical interviews, and an actuarial process,
which provides guidance on what the risk factors are for the person’s engaging in repeat, sexual
offending, as well as a determination of the person’s psychopathic characteristics. According to
McGarrahan, in Loving’s case, she reviewed police reports, witness statements, plea agreements,
judgments, information related to the assessment of Loving’s sentence, records of his
disciplinary issues during his incarceration, and sex-offender-treatment-provider records.
McGarrahan evaluated Loving as having an abnormal-behavioral condition she characterized as
a paraphilic or hebephilia disorder, which she described as “intense sexually arousing urges,
fantasies, [and] behaviors” involving children between the years of post-pubescence and teenage
adolescence. She acknowledged that some camps in the mental health community do not see
such a condition as “deviant,” but stated that she is not aware that either view predominates.

1
Loving frames his first issue as a challenge to the legal sufficiency of the evidence. However, in his brief,
he makes no argument that reasonably can be construed as a legal sufficiency challenge. Rather, his argument
focuses on the trial court’s admission, over his objection, of a single portion of the State’s expert witness’s
testimony. As required, we have construed Loving’s sole issue as a challenge to the admissibility of this testimony,
which fairly includes the subsidiary argument that, had his objection been sustained, the absence of such expert
testimony would result in there being insufficient evidence to support the trial court’s judgment. See TEX. R. APP. P.
38.1(f).

2
In reaching this finding, McGarrahan testified that she evaluated Loving using the
“Static-99R,” which measures static factors, i.e., things that will not change over time. She
testified that Loving’s score of “5” indicated that he is “above average risk” for reoffending
compared to other sex offenders. McGarrahan also evaluated Loving using the “Structured Risk
Assessment” evaluation, which is used to determine “deviancy” by examining a person’s
interpersonal relationships and his ability to manage his behavior and cope with situations.
McGarrahan stated that with respect to dynamic risk factors, Loving scored “above average” for
reoffending compared to other sex offenders.
Testimony at Issue
The testimony about which Loving complains resulted from the following exchange
during the State’s examination of McGarrahan:

Q. After reviewing all of the records [and] your interview with Mr. Loving, based on
your education, training, and experience and procedures used, do you find beyond a reasonable
degree of scientific certainty that Mr. Loving suffers from a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence?

[Loving’s Counsel]: I’m going to object to any kind of reasonable degree of scientific
certainty. There’s no standard related to a reasonable degree of scientific certainty.

[State’s Attorney]: She is a forensic expert, and that is -- she has to hold herself to that
standard before she can come in and testify in a courtroom. So I believe that it’s a proper question
for her to explain the belief in her own testimony and her opinion.

[BENCH CONFERENCE]

THE COURT: I think I understand your objection, and it may be the real core of it is you
don’t think there is a standard.

[Loving’s Counsel]: There is not a standard and there is movement right now to move
away from using it because you’re using a degree of --

THE COURT: Okay.

[Loving’s Counsel]: -- scientific certainty, which has a couple of components, certainty,
which is over-inflating what the opinion is and especially when we’re in a beyond reasonable
doubt burden. And --

THE COURT: Okay. I got the gist of you -- like the limit, though, with all due respect, is
you say there’s a trend or there’s a movement, but there has not been any case authority
adjudication that it’s not permissible at this time.

[Loving’s Counsel]: There is none, Your Honor.

....

3
THE COURT: Okay. I’m going to overrule your objection, but on the record in front of
the jury, I’m going to tell them that you will have free liberty to challenge that on your cross-
examination. And I’m not saying you do, but I’m just saying if you want to make that point, I’ll
permit it. But at this time, there being an absence of case authority that says that they can’t rely
upon what that standard may be and it’s not permissible in a court of law, I’ve got the objection.

[LOVING’S COUNSEL]: Thank you, Your Honor.

THE COURT: All right. Thank you. We good with that?

[LOVING’S COUNSEL]: Oh, yes.

THE COURT: All right.

(End of bench conference)

THE COURT: Thank you for your patience, ladies and gentlemen. I’m going to overrule the
objection, but I have informed Counsel that he can question and cross-examine the witness as to
that standard and the basis of it if he so desires. You may continue.

DIRECT EXAMINATION CONTINUED

Q. Okay. Do you still know the question?

A. I believe so, yes.

Q. Okay.

A. I do. My opinion is that Mr. Loving does have a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence.

Discussion
Here, it is apparent from the record that the trial court carefully considered Loving’s
objection to the “reasonable degree of scientific certainty” standard set forth in the State’s
question. Indeed, the trial court inquired of Loving whether there existed “any case authority”
suggesting that such a standard is impermissible. Loving candidly responded, “There is none[.]”
Even if the trial court’s ruling did amount to an abuse of discretion, the outcome of this
appeal would not differ. When a trial court abuses its discretion in admitting certain evidence,
reversal only is appropriate if the error was harmful, i.e., it probably resulted in an improper
judgment. See U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); see also TEX.
R. APP. P. 44.1. In analyzing whether the trial court’s error was harmful, we review the entire
record, and require the complaining party to demonstrate that the judgment turns on the
particular evidence admitted. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014).

4
Here, Loving makes no attempt to demonstrate that the trial court’s judgment turns on the
jury’s opportunity to consider the “reasonable degree of scientific certainty” standard as posed in
the State’s question to McGarrahan. See id. Nonetheless, in our review of the record, we first
note that nowhere in the record apart from the State’s question and Loving’s objection thereto
did the jury hear the words “reasonable degree of scientific certainty.” Indeed, despite the trial
court’s instruction to the jury, which was made with Loving’s accord, Loving declined to cross
examine McGarrahan about the standard by which the State sought to elicit her expert opinion
testimony. But most importantly, we note that following Loving’s objection, the State did not
repeat its question to McGarrahan. Instead, it asked her if she remembered it. She stated that
she did, but her answer was not entirely responsive to the question. Instead, she stated more
generally that her “opinion is that Mr. Loving does have a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence.” Therefore, even assuming arguendo
that the trial court’s admission of this testimony was an abuse of discretion and that Loving had,
in fact, attempted to demonstrate that the judgment turns on that evidence, based on our review
of the record, we conclude that the evidence was not harmful. See id. Loving’s sole issue is
overruled.2

DISPOSITION
Having overruled Loving’s sole issue, we affirm the trial court’s judgment.

JAMES T. WORTHEN
Chief Justice

Opinion delivered May 10, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

2
Because we have determined that there was no harm resulting from the trial court’s admission of the
testimony at issue, to the degree Loving’s legal sufficiency contention is contingent on that conclusion, it likewise
fails. Furthermore, despite Loving’s failure to make any specific legal sufficiency argument, based on our review of
the record and, in particular, McGarrahan’s testimony, there is legally sufficient evidence to support the trial court’s
judgment. See, e.g., In re Hebert, 578 S.W.3d 154, 156–57 (Tex. App.–Tyler 2019, no pet.) (“A person is
considered a ‘sexually violent predator’ if he (1) is a repeat sexually violent offender and (2) suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual violence”).

5
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 10, 2023

NO. 12-22-00282-CV

IN RE: COMMITMENT OF TIMOTHY LYNN LOVING, JR.

Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. CV-01335-21-09)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.