in Re Commitment of Dennis Wayne Clemons ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00488-CV
____________________
IN RE COMMITMENT OF DENNIS WAYNE CLEMONS
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 15-05-04729-CV
MEMORANDUM OPINION
The State of Texas filed a petition to commit Dennis Wayne Clemons
(Clemons or Appellant) as a sexually violent predator. See Tex. Health & Safety
Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2016) (SVP statute).1 A jury
found that Clemons suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence, and the trial court rendered a final
judgment and an order of civil commitment. Clemons filed a motion for new trial,
which the court denied. Clemons timely filed a notice of appeal. In five issues,
1
We cite to the current version of the statute unless a previous version of the
statute applies and the subsequent amendments would materially affect our
analysis.
1
Clemons challenges the constitutionality of the SVP statute, as amended, the
admission of certain evidence at trial, and the sufficiency of the evidence. We
affirm the trial court’s judgment and order of civil commitment.
EVIDENCE AT TRIAL
Pen Packets and Admissions
Certified copies of Clemons’s penitentiary packets were admitted into
evidence as State’s Exhibits 1, 2, and 3. State’s Exhibit 1 includes a certified copy
of a 1993 judgment for burglary of a habitation with intent to commit theft, to
which Clemons pleaded guilty, and for which he was sentenced to five years in the
Texas Department of Criminal Justice (TDCJ). Exhibit 1 also includes a certified
copy of a 1993 judgment adjudicating guilt for burglary of a building, to which
Clemons pleaded guilty, and for which he was also sentenced to five years in
TDCJ.
State’s Exhibit 2 includes a certified copy of a 2004 judgment of conviction
for Clemons’s sexual assault against D.C., to which Clemons pleaded guilty and
for which he was sentenced to two years in TDCJ.2 State’s Exhibit 3 includes a
certified copy of a 2006 conviction for failure to register as a sex offender, to
2
We identify the victims by using initials. See Tex. Const. art. I, § 30(a)(1)
(granting crime victims the “right to be treated with fairness and with respect for
the victim’s dignity and privacy throughout the criminal justice process[]”).
2
which Clemons pleaded guilty and for which he was sentenced to ten years in
TDCJ. State’s Exhibit 3 also includes a certified copy of a 2006 conviction for
aggravated sexual assault against Z.J., to which Clemons pleaded guilty and for
which he was sentenced to ten years in TDCJ.
Prior to calling any witnesses, the State read Clemons’s responses to
requests for admissions, wherein Clemons admitted his convictions, his pleas, and
the punishment assessed for all his convictions as reflected in State’s Exhibits 1, 2,
and 3.
Testimony of Dr. Darrel Turner
Darrel Turner, Ph.D., a clinical psychologist, testified for the State. Dr.
Turner testified that about half of his work is forensic and consists of performing
sex offender risk assessments and competency or sanity evaluations. Turner
explained that he had conducted approximately eighty behavioral abnormality
evaluations.
Dr. Turner explained that in making his assessment he looks at past behavior
as well as risk factors. Turner explained to the jury that, after reviewing all
available records, he then interviews the individual and performs a psychosexual
evaluation, a risk assessment, and behavioral abnormality evaluation. He also
conducts certain tests that are predictive of the individual’s likelihood of
3
reoffending. According to Turner, his methodology is supported by scientific
literature, is “generally considered to be the most accepted and recommended best
practices in the field of forensic psychology[,]” and his evaluation was done in
accordance with his training as a psychologist and the acceptable standards in the
field of forensic psychology.
Turner explained that the records he reviews include records of the
individual’s criminal history, including both sexual and nonsexual offenses,
records from the TDCJ, medical and psychiatric reports, and police reports,
including victim statements and investigative reports. He also agreed that the
records he reviews are the same type of records reviewed and relied upon by
experts in his field. Dr. Turner explained that the records “provide factual,
objective information, historical information about [] past behaviors which are
excellent indicators of [] future behaviors.” He also agreed that he found the
records he reviewed on Clemons to be reliable but that he did not independently
verify the records himself.
Dr. Turner testified that he interviewed Clemons for “[b]etween two and
three hours.” After reviewing the records and interviewing Clemons, Dr. Turner
formed an opinion that Clemons has a behavioral abnormality that predisposes
Clemons to engage in predatory acts of sexual violence.
4
According to Dr. Turner, “Clemons is sexually deviant today[]” and sexual
deviance does not generally go away. Turner explained that, in making his
evaluation,
[t]he details of Mr. Clemons’s sexual offenses are extremely
important in determining whether he has a behavioral abnormality,
largely because they speak to the two main risk factor categories,
which are sexual deviance and antisociality. The details of his
specific sex offenses are extremely violent, extremely heinous and
speak directly to his sexual deviance and sadistic nature as well as his
antisociality or his willingness to break the law, hurt and victimize
other people to satisfy his sexual urges.
Turner testified that, in evaluating Clemons’s sexual deviance, he considered
Clemons’s two convictions for sexually violent offenses as well as an assault that
did not result in a conviction. Regarding the assault that did not result in a
conviction, Turner explained that he understood that the victim recanted because
she and Clemons had a child together, but that the records noted “numerous
instances of arrests for [Clemons’s] physical violence against her.” Turner
explained that he considered this offense in forming his opinion because “there is a
lot of evidence that was supported by the witnesses. It -- it matches his MO of . . .
his other sexual offenses. The use of a weapon, the threatening, the sadistic, violent
sex and rape, and . . . it can’t be ignored.”
According to Turner, one of Clemons’s convictions was for his offense
against D.C., the mother of one of his ex-girlfriends, whom he beat severely,
5
choked repeatedly to the point of unconsciousness, threatened to kill, injured with
a razor blade, and sexually assaulted. Turner explained that Clemons’s conviction
for his offense against Z.J. occurred after he had been in prison for his conviction
against D.C. Turner told the jury that, in the assault against Z.J., Clemons choked
Z.J. and, using an ornamental sword in Z.J.’s house, he
. . . forced her back into a bedroom at knifepoint or swordpoint.
He forced her into sexual activity, he threatened to kill himself, he
threatened to kill her if she didn’t comply, he threatened to kill her
children if she didn’t comply with him, with his sexual demands. At
one point he actually stabbed her.
Dr. Turner explained that children were in the house when the offense against Z.J.
occurred, which Turner regarded as relevant and evidence of psychopathy because
it showed Clemons’s callousness, his inability to control his urges, and his sexual
deviance. Turner also explained that Clemons performed multiple sex acts on Z.J.,
which Turner regarded a risk factor because “the more sexual acts that a person
engages in in the course of rape is simply more evidence of sexual deviance.” Dr.
Turner also testified regarding another assault by Clemons on R.S., and he
explained that the records he reviewed showed that Clemons struck R.S. with a
board, choked her, threatened her with a knife, and forced her to engage in various
sexual acts.
6
According to Turner, Clemons “takes no accountability for the fact that he
has violently raped these women.” Turner noted that Clemons’s pattern of using a
weapon was a risk factor because “he’s going to do more damage with a
weapon[,]” and Turner explained that Clemons had used a sword, a board, a knife,
and a razor blade as weapons in his assaults. Dr. Turner explained that Clemons is
. . . a violent individual, but he is also a very violent sexual
individual. His cases are, as I said, very -- very heinous cases, severe
injuries to these women, threat of death. So while he does have a
history of violence, his -- his sexual offenses indicate a serious
predilection toward sexual violence specifically.
Turner explained that Clemons’s pattern of violence and sexual violence increases
his risk of reoffending because “[Clemons] feels fine about what he’s doing. He
doesn’t see anything wrong with what he’s doing because his belief system is such
that it’s okay to be violent against women.”
Dr. Turner testified that he conducted a PCL-R actuarial assessment of
psychopathy on Clemons. Turner explained that Clemons’s score on factor one of
the PCL-R was a “15[,]” which indicated that Clemons “has more psychopathic
personality characteristics than about 97 percent of inmates on whom the test was
normed.” Dr. Turner also interpreted Clemons’s score to reflect that he is
manipulative, a pathological liar, and has a grandiose sense of self-worth. Dr.
7
Turner testified that Clemons’s overall score on the PCL-R was “33 out of 40[,]”
which indicated “a very high degree of psychopathic characteristics.”
Turner also scored another actuarial for Clemons, the Static-99R. Dr. Turner
explained that Clemons’s score of “3” on the Static-99R placed Clemons in a “low-
moderate risk level.” Turner testified that he did not think Clemons’s score on this
actuarial indicated Clemons’s actual level of risk.
According to Dr. Turner, Clemons had only one day of sex offender
treatment, which was of concern to Dr. Turner because
. . . with someone with this degree of personality disorderedness,
he needs information about situations that are high risk for him, he
needs information about his sexual deviance, he needs information
about what his actions do to victims and their families emotionally,
physically, everything that treatment provides essentially he needs.
In Dr. Turner’s opinion, Clemons does not have the tools necessary to control his
sexual offending.
Turner diagnosed Clemons with paraphilia not otherwise specified with
sadistic features, and mixed personality disorder with features of borderline and
antisocial personality disorders. Turner did not diagnose Clemons with a substance
abuse disorder, but he noted Clemons had a history of substance abuse. Dr. Turner
explained that Clemons has the following risk factors for reoffending: a history of
sexual violence, a lengthy criminal history, lack of remorse, failure to take
8
responsibility, antisociality, lack of insight, history of substance abuse, denigration
and blame of the victim, failure to register as a sex offender, sexually offending
after incarceration for a sexual offense, a pattern of escalating violence and sexual
violence. According to Turner, Clemons represents a “very high risk of sexually
violent reoffending[.]”
Testimony of Dr. Lisa Clayton
Lisa Clayton, M.D., a physician specializing in psychiatry and board-
certified in general and forensic psychiatry, also testified as an expert for the State.
Dr. Clayton testified that she has practiced forensic psychiatry for twenty-two
years and she has performed “around 174” behavioral abnormality evaluations
over a fifteen-year period.
Dr. Clayton described the methodology she uses in conducting a behavioral
abnormality evaluation, which includes a review of all available records and
conducting a “face-to-face psychiatric evaluation interview[.]” She agreed that the
methodology she uses is the method used by experts in her field performing this
type of evaluation. After reviewing the records and interviewing Clemons, Dr.
Clayton formed an opinion that Clemons has a behavioral abnormality that
predisposes him to engage in predatory acts of sexual violence.
9
Dr. Clayton testified that, in this case, she reviewed the following type of
records: records of the sex offender risk assessment team, police reports, prison
records, prison medical records, educational records, penitentiary packets, and the
deposition of Dr. Turner. She agreed that the records she reviewed on Clemons are
typical of records reviewed and relied upon by experts in the field of forensic
psychiatry when performing an behavioral abnormality evaluation. Clayton also
explained that her training included how to determine whether records are reliable.
According to Clayton, “police reports, trial or District Attorney office records . . .
are thought to be reliable[,]” but she does not verify the reliability of the records
she reviews. Clayton also explained that she personally met with Clemons for
about two-and-a-half to three hours and she reviewed the results of actuarials
conducted by Dr. Turner.
Based on her review of the records and her interview with Clemons, Dr.
Clayton made the following diagnoses for Clemons: paraphilic disorder not
otherwise specified with sexual sadistic features, antisocial personality disorder,
other specified depressive disorder currently in remission, marijuana use disorder
currently in institutional remission, and history of seizure disorders secondary to
head injury. Dr. Clayton also explained that paraphilic disorder not otherwise
specified and antisocial personality disorder are chronic conditions.
10
According to Dr. Clayton, she considered the facts of Clemons’s offenses
when forming her opinion of his behavioral abnormality. She explained that the
facts and details of his offenses are important to know because she looks for
patterns of behavior. Dr. Clayton testified that the physical injuries to one of his
victims, D.C., indicated that Clemons “has used close-to-death violence against the
victim he was sexually assaulting[,]” including choking to the point of
unconsciousness. Clayton also noted that in his assault against Z.J., Clemons
“subdued [Z.J.] with a knife” and threatened to kill Z.J.’s children who were in the
next room. According to Dr. Clayton, the alleged offense against R.S., which did
not result in a conviction, also showed a pattern of using physical force and
violence. The details of Clemons’s offenses led Dr. Clayton to conclude that
Mr. Clemons has been sexually stimulated as he was assaulting
the women, physically he was harming them, doing physical damage
to them. And then, also, that he was receiving -- he had sexual
gratification in having the sex acts with the women against their will.
Clayton also noted that Clemons has a history of more than ten nonsexual assaults
against women involving bodily injury, including one with deadly conduct. Dr.
Clayton testified that Clemons’s first arrest occurred when he was eleven years old,
and that “he has had a lifetime of criminal history with mostly assaultive
behavior.” Dr. Clayton also characterized Clemons’s criminality as steadily
increasing from the age of eleven until he was incarcerated. According to Dr.
11
Clayton, in her interview with Clemons, Clemons characterized himself as the
victim in the assaults of which he has been accused and Clemons said the women
lied.
Dr. Clayton identified the following risk factors that put Clemons at a high
risk for reoffending: sexual deviance, unspecified paraphilic disorder with sadistic
features, sexual sadism, antisocial personality disorder, a high degree of violence
towards his victims, a history of other violent acts towards women, the absence of
any sex offender treatment, substance use disorder, a history of anger, a history of
a negative relationship with his mother, and a failure to acknowledge his
recidivism risk. Dr. Clayton testified that these risk factors are supported by
research. According to Dr. Clayton, Clemons “is sexually deviant today[]” and that
sexual deviance “does not go away.” According to Clayton, a person’s sexual
preferences start at a young age and stay consistent, even if the person is not able
to act upon their preferences due to incarceration or for other reasons. Clayton
further explained that
. . . individuals that have the sexual deviance and the consistent
criminal characteristics or criminal history have the highest rate of
acting or doing repeat sexual offenses, because they’re individuals
that have this urge, these sexual urges, but then they also have a
history of disregarding laws.
....
12
They have a history of disregarding laws and conforming their
behavior in other situations. So when you couple that, it’s essentially
like squirting gasoline or lighter fluid on a fire. It can be a very potent
combination as far as having -- more likely to commit future acts.
Dr. Clayton also agreed that Clemons does have some positive factors including
family support and having a place to go after discharge. However, according to Dr.
Clayton, these positive factors do not outweigh his other risk factors. According to
Dr. Clayton, Clemons has had no sex offender training, he is in denial, and he does
not have the tools he needs to keep him from reoffending sexually.
Testimony of Clemons
Clemons testified that before the age of eleven, he had engaged in theft, and
that at the age of eleven, he robbed a store with his brother and shot a store
attendant during the robbery. He testified that he was convicted of that offense and
sent to juvenile detention. He also agreed that after being released on supervision,
he returned to a State School “nearly eight times” for various violations. Clemons
agreed that, during his teens, he was arrested for criminal mischief and that his
supervision for the robbery was revoked due to an assault. According to Clemons,
as a child, he was molested by a man in his neighborhood several times, and after
he told his brother about the molestation, his brother beat the man up. Clemons
testified that a female babysitter also molested him for a few years when he was in
elementary school.
13
He agreed that he continued to break the law in his twenties, including being
convicted multiple times for burglary of a building with the intent to commit theft
and assault. He also agreed he was convicted of choking a woman, resisting arrest,
failure to ID, being a fugitive from justice, possession of marijuana, and assault
causing bodily injury to a family member.
Clemons agreed that he was convicted of assault causing bodily injury to
R.S. in 2001, of assault causing bodily injury to a family member in 2002, and he
was convicted of resisting arrest and criminal mischief. He also agreed he was
incarcerated for his conviction for aggravated sexual assault against Z.J.
Clemons agreed that he had struggled with psychiatric conditions for most of
his life, including a diagnosis at age eleven of bipolar disorder, that he shot himself
in the stomach at age nineteen, purposefully overdosed on seizure medication in a
suicide attempt at age twenty, he was hospitalized for self-mutilation in his late
twenties, and he was admitted to a mental hospital again in his early thirties. He
agreed that, while incarcerated in his twenties, he was placed into a psychiatric
unit. At the time of his civil commitment trial, he was on a psychiatric caseload
and he has continued to have “angry outbursts[.]” Nevertheless, Clemons also
testified that he had not had anger issues since he became a Christian in 2006.
According to Clemons, he is not always able to obtain his medications while
14
incarcerated, but he takes them a “[m]ajority of the time[.]” Clemons agreed that
when he is not incarcerated he does not always take his medications. Clemons
testified that, upon release from prison, he expects his mother to encourage him to
remain compliant in taking his medications.
Clemons agreed that he has a history of violence toward women, but when
asked about the details of the offenses for which he had been arrested or convicted,
he denied most of the details concerning his assaults or that he sexually assaulted
the victims, and he denied using a weapon. However, he also agreed that he has
been violent with women. And, he agreed he took a plea for the offenses against
D.C. and Z.J.
Clemons agreed he has not had sex offender treatment. He testified that he
does not need sex offender treatment and that he is not a sex offender. According
to Clemons, he currently has “[z]ero[]” sex drive. When asked whether he planned
on having sex upon release from prison, he responded that he could not answer that
question but that he felt that he deserved better women than the ones he had
previously been with and Clemons claimed that he would control his sexual urges
upon release. Clemons denied sexually assaulting anyone or having fantasies of
sexually assaulting anyone during a five-year period when he did not take his
15
medication. Clemons denied that he gets pleasure from someone else’s pain or
from the thought of raping someone, and he denied having any such fantasies.
The defense called no witnesses. The State moved for a directed verdict on
the limited issue of whether Clemons is a repeat sexually violent offender, to
which the defense did not object, and the court granted the motion. A jury
unanimously found Clemons to be a sexually violent predator beyond a reasonable
doubt.
CONSTITUTIONAL CHALLENGE
In his first issue, Clemons argues that the SVP statute as amended by Senate
Bill 746 is facially unconstitutional because it requires all persons adjudicated as
sexually violent predators to live in oppressive confinement with no evidence they
cannot be treated in an outpatient model first, and as amended fails the “intent-
effects test” utilized by the Texas Supreme Court in In re Commitment of Fisher,
164 S.W.3d 637 (Tex. 2005). Clemons contends that the findings of a trial court
judge as to another civilly-committed person, Alonzo May, equally apply to
Clemons, and Clemons argues that the Supreme Court’s holding in Fisher
depended heavily on the fact that the prior version of the statute provided for
outpatient treatment.
16
Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas
Health and Safety Code in several respects. See Act of May 21, 2015, 84th Leg.,
R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700, 2700-12. The Legislature created a
new state agency, the Texas Civil Commitment Office (TCCO), with the
responsibility for treatment and supervision of sexually violent predators. 3 Id. § 3
(current version at Tex. Health & Safety Code Ann. § 841.007 (West Supp. 2016)).
The Legislature required the TCCO to develop a tiered program of supervision and
treatment that provides a seamless transition from a total confinement facility to
less restrictive housing and supervision and eventual release from civil
commitment, based on the person’s behavior and progress in treatment. Id. § 16
(current version at Tex. Health & Safety Code Ann. § 841.0831 (West Supp.
2016)). Under the statute as amended, the TCCO transfers a committed person to
less restrictive housing and supervision if the transfer is in the best interests of the
person and conditions can be imposed that adequately protect the community, and
a committed person may petition the court for a transfer to less restrictive housing
and supervision. Id. (current version at Tex. Health & Safety Code Ann.
§ 841.0834 (West Supp. 2016)). The enacting language of SB 746 provides:
3
See Tex. Gov’t Code Ann. § 420A.002 (West Supp. 2016). Throughout this
opinion we refer to the Texas Civil Commitment Office by its acronym, “TCCO.”
17
If a civil commitment requirement imposed under Chapter 841,
Health and Safety Code, before the effective date of this Act differs
from any of the civil commitment requirements listed in Section
841.082, Health and Safety Code, as amended by this Act, the
applicable court with jurisdiction over the committed person shall,
after notice and hearing, modify the requirement imposed as
applicable to conform to that section.
Id. § 40(b).
Generally, to preserve a complaint for appellate review, the complaining
party must present the complaint to the trial court by timely request, objection, or
motion. Tex. R. App. P. 33.1(a)(1). We apply the preservation rule to constitutional
challenges. See In re Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex.
App. LEXIS 1098, at *25 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem.
op.) (failure to make a constitutional challenge to the SVP statute at trial
constituted a failure to preserve the issue for appeal); In re Commitment of Dodson,
434 S.W.3d 742, 747 (Tex. App.—Beaumont 2014, pet. denied) (failure to make a
constitutional challenge to the SVP statute at trial constituted a failure to preserve
the issue for appeal); In re Commitment of Johnson, 153 S.W.3d 129, 130 (Tex.
App.—Beaumont 2004, no pet.) (“A complaint regarding the constitutionality of a
statute is subject to the ordinary rules of procedural default.”).4
4
See also In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (parent failed to
preserve his due process challenge); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
222 (Tex. 2002) (party failed to raise constitutional argument that trial court’s
18
The statutory amendments about which Clemons complains became
effective on June 17, 2015, and Clemons’s trial began on September 28, 2015. The
appellate record indicates that Clemons did not raise the issue of the
constitutionality of the amended SVP statute before or during trial, and he failed to
raise the issue in his motion for new trial. Therefore, he failed to preserve the issue
for appellate review. See Tex. R. App. P. 33.1.
Nevertheless, Clemons argues that, after his own trial had concluded and the
court denied his motion for new trial, a different trial court that was hearing
Alonzo May’s civil commitment case declared Chapter 841 as amended
unconstitutionally punitive. See In re Commitment of May, No. 09-15-00513-CV,
2016 Tex. App. LEXIS 8058, at **5-8 (Tex. App.—Beaumont July 28, 2016, no
pet. h.). Citing to Ex parte Chance, 439 S.W.3d 918, 919-22 (Tex. Crim. App.
2014) (Cochran, J., concurring) and Ex parte Fournier, 473 S.W.3d 789, 790 n.4
(Tex. Crim. App. 2015), Clemons argues that his constitutional claim on appeal
ruling violated open-courts provision in response to summary judgment motion
and thus did not preserve it for appeal); Dreyer v. Greene, 871 S.W.2d 697, 698
(Tex. 1993) (party waived due process and equal protection challenges by failing
to raise them in trial court); Lowe v. Jefferson Dental Clinics, No. 05-11-00902-
CV, 2012 Tex. App. LEXIS 3796, at **4-5 (Tex. App.—Dallas May 14, 2012, no
pet.) (mem. op.) (appellant failed to preserve her challenge to the constitutionality
of Chapter 74 by failing to raise the complaint in the trial court); In re J.R.N., No.
09-08-00029-CV, 2010 Tex. App. LEXIS 2280, at **8-9 (Tex. App.—Beaumont
Apr. 1, 2010, no pet.) (mem. op.) (“The law is well settled that even constitutional
errors may be waived by failure to raise the issues at trial.”).
19
should be considered timely because “‘a person may always obtain relief from an
indictment or a conviction based on a penal statute that has been previously
declared unconstitutional.’” See Chance, 439 S.W.3d at 919 (Cochran, J.
concurring). We find Chance and Fournier inapposite because those cases
pertained to the constitutionality of a penal statute, and the SVP commitment
statute is a civil statute. See Fisher, 164 S.W.3d at 653 (explaining that the SVP act
is civil); May, 2016 Tex. App. LEXIS 8058, at *17 (concluding that the SVP act,
as amended in 2015, remains civil).
Even if Clemons’s challenge had been timely raised, as we explained in
May, Chapter 841, as amended in 2015, is not unconstitutional. See May, 2016
Tex. App. LEXIS 8058, at **7-18. In May, we specifically examined and applied
the factors as outlined in Fisher. Id. For the same reasons discussed in May, we
conclude the statute remains civil, and we reject Clemons’s constitutional
challenge. We overrule Clemons’s first issue.
RELIABILITY OF THE EXPERTS’ TESTIMONY
In his second issue, Clemons argues that the evidence to support his
commitment is legally insufficient because it is based on the opinions of the State’s
experts, and he challenges the State’s experts’ opinions as facially unreliable,
speculative, and conclusory because the experts relied on “unreliable and objected-
20
to” hearsay evidence. Clemons argues that, based on the face of the record, this
unreliable hearsay should be considered incompetent and speculative evidence and
thus “legally, no evidence.”
At trial, Clemons made a hearsay objection to Dr. Turner and Dr. Clayton
testifying about the facts and details of Clemons’s offenses. The court allowed the
testimony, and Clemons requested a running objection. Upon request of defense
counsel, the court gave a limiting instruction to the jury, and the jury’s charge also
included a limiting instruction.
Citing to Coastal Transportation Co. v. Crown Central Petroleum Corp.,
136 S.W.3d 227, 232-33 (Tex. 2004) and Arkoma Basin Exploration Co. v. FMF
Associates 1990-A, Ltd., 249 S.W.3d 380, 388 (Tex. 2008), Clemons argues that he
is permitted to argue for the first time on appeal that the experts’ opinions were
based on unreliable facts-and-details evidence that rendered their opinions
speculative or conclusory on their face. The Texas Supreme Court noted in
Coastal, that opinion testimony that is conclusory or speculative is not relevant
evidence because it does not tend to make the existence of a material fact “‘more
probable or less probable.’” Coastal Transp. Co., 136 S.W.3d at 232 (quoting Tex.
R. Evid. 401). Clemons argues that an objection at trial is not needed to preserve a
21
no-evidence challenge to conclusory expert testimony. Id.; Arkoma Basin Expl.
Co., 249 S.W.3d at 388.
This Court has previously held that, under Rule 705(a) of the Texas Rules of
Evidence, experts may disclose on direct examination, or be required to disclose on
cross-examination, the underlying facts or data upon which they relied, and they
may discuss the defendant’s prior offenses as part of the basis for the experts’
opinions. See, e.g., In re Commitment of Camarillo, No. 09-12-00304-CV, 2013
Tex. App. LEXIS 7212, at **8-10 (Tex. App.—Beaumont June 13, 2013, no pet.)
(mem. op.); In re Commitment of Day, 342 S.W.3d 193, 197-99 (Tex. App.—
Beaumont 2011, pet. denied). We have previously overruled similar arguments
regarding the disclosure of information on which experts relied in forming their
opinions. See In re Commitment of Garcia, No. 09-12-00194-CV, 2013 Tex. App.
LEXIS 14986, at **15-17 (Tex. App.—Beaumont Dec. 12, 2013, pet. denied)
(mem. op.); In re Commitment of Reed, No. 09-11-00484-CV, 2012 Tex. App.
LEXIS 2493, at **2-6 (Tex. App.—Beaumont Mar. 29, 2012, no pet.) (mem. op.);
Day, 342 S.W.3d at 197-99. Rule 705 provides that if otherwise inadmissible facts
or data are disclosed before the jury, a limiting instruction by the court shall be
given upon request. Tex. R. Evid. 705(d). We presume the jury followed the
court’s limiting instructions. Day, 342 S.W.3d at 199.
22
Based on our review of the record, we conclude that the testimony of Dr.
Turner and Dr. Clayton was not conclusory or speculative. Both Dr. Turner and Dr.
Clayton are licensed in their respective fields. See In re Commitment of Burnett,
No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at *14 (Tex. App.—Beaumont
Dec. 31, 2009, no pet.) (mem. op.). Even assuming, without deciding that the facts
and details of Clemons’s offenses may have contained hearsay, the record reflects
that Drs. Turner and Clayton based their opinions on all the records they reviewed,
their interviews with Clemons, the risk assessments they conducted, and the
actuarial tests administered. See id. They explained in detail the evidence they
relied upon in forming their opinions and how that evidence contributed to their
evaluations. See id. Both experts concluded that Clemons suffers from a behavioral
abnormality as defined by the SVP statute. See id. Their testimony is not so
speculative or conclusory as to be completely lacking in probative value or
constitute “no evidence.” See id.
Clemons also argues that he was denied due process because he was not
permitted to challenge the reliability of the facts-and-details evidence through
cross-examination. Clemons’s brief does not cite to any portion of the record
supporting his argument that he was not permitted to cross-examine the experts.
Furthermore, the record reflects that, Clemons’s attorney did cross-examine both
23
witnesses. Additionally, during Clemons’s cross-examination of Dr. Clayton,
although the State objected that the cross-examination was an attempt to make a
collateral attack on Clemons’s underlying conviction, the trial court overruled the
State’s objection and allowed the defense to proceed with the questioning because
the State had opened the door to cross-examination on the facts of Clemons’s
offenses. Therefore, we find no support for Clemons’s due process argument in the
record. See Tex. R. App. P. 38.1(i). We overrule issue two.
LEGAL AND FACTUAL SUFFICIENCY
In his third and fourth issues, Clemons argues that, even assuming the
evidence upon which the experts relied was reliable, the evidence at trial was
legally and factually insufficient to support the jury’s finding beyond a reasonable
doubt that Clemons has a behavioral abnormality that makes him likely to engage
in a predatory act of sexual violence. Clemons argues that the evidence at trial does
not support the experts’ opinions. In particular, Clemons contends that the
evidence upon which the experts relied does not support their opinions. Clemons
also argues that the experts’ opinions are “simply incorrect” because they do not
explain why Clemons never sexually assaulted anyone until he was almost thirty-
two years old, despite the fact that his criminal history began at age eleven.
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In an SVP civil commitment proceeding, the State bears the burden to prove
beyond a reasonable doubt that the respondent has a behavioral abnormality. See
Tex. Health & Safety Code Ann. § 841.062 (West Supp. 2016); In re Commitment
of Morales, 98 S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied). A
person is a sexually violent predator if the person “is a repeat sexually violent
offender[] and 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) (West Supp. 2016). A behavioral abnormality is “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) (West Supp. 2016).
Under a legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether a rational trier of fact could find,
beyond a reasonable doubt, the elements required for commitment under the SVP
statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont
2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in
the testimony, weigh the evidence, and draw reasonable inferences from basic facts
to ultimate facts. Id. at 887. Under a factual sufficiency review, we weigh the
25
evidence to determine “whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial.” Day, 342 S.W.3d at 213.
In this case, both Dr. Turner and Dr. Clayton testified that Clemons suffers
from a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence. Both Turner and Clayton gave Clemons multiple diagnoses,
including paraphilic disorder not otherwise specified with sexual sadistic features
and antisocial personality disorder, and they both also identified numerous factors
that put Clemons at a high risk of reoffending, including Clemons’s history of
violence and sexual violence. Dr. Turner explained that the degree of physical and
sexual violence Clemons demonstrated in his past offenses was indicative of
Clemons’s inability to control his urges and his sexual deviance. Dr. Turner also
testified that Clemons’s scores on actuarials were associated with a risk of
recidivism. Dr. Clayton testified that Clemons has not received sex offender
treatment and does not have the tools he needs to avoid reoffending. Clemons
himself testified that his criminal history began when he was age eleven and that
he has a history of violence toward women. Clemons also testified that he is not a
sex offender and he does not need sex offender treatment.
26
Clemons argues that the evidence is insufficient because the experts failed to
explain why Clemons did not sexually assault anyone until age thirty-two even
though his criminal history began at age eleven. Clemons fails to cite to any legal
authority that would require the State to explain this point. The statute requires the
State to prove, beyond a reasonable doubt, that a defendant currently suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence. See Tex. Health & Safety Code Ann. § 841.003(a); see also Tex.
R. App. P. 38.1(i) (requiring an appellant’s brief to cite to legal authorities). The
State’s experts testified that “Clemons is sexually deviant today[]” and that sexual
deviance does not generally go away.
The jury was entitled to infer Clemons’s current dangerousness from the
evidence presented, including the experts’ testimony, Clemons’s past behavior, and
Clemons’s own testimony. See In re Commitment of Wilson, No. 09-08-00043-CV,
2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—Beaumont Aug. 27, 2009, no
pet.) (mem. op.). As the sole judge of the weight and credibility of the evidence,
the jury could reasonably conclude that Clemons suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
See In re Commitment of Lowe, No. 09-14-00098-CV, 2014 Tex. App. LEXIS
10034, at *6 (Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.); see also
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Wilson, 2009 Tex. App. LEXIS 6714, at *14; Mullens, 92 S.W.3d at 887. We
conclude that the jury’s verdict is supported by legally sufficient evidence and does
not reflect a risk of injustice that would compel ordering a new trial. See Day, 342
S.W.3d at 213. We overrule Clemons’s third and fourth issues on appeal.
“FACTS AND DETAILS” TESTIMONY BY CLEMONS
In his fifth and final issue, Clemons argues that the trial court erred in
allowing the State to question Clemons concerning the facts and details of his
criminal history and prior conduct because “there was no good-faith basis” for this
line of questioning. Clemons cites to thirteen pages of the reporter’s record in
which the State asked Clemons about details of his offenses, most of the questions
resulting in a denial by Clemons. Clemons argues that the State had no good-faith
basis or reasonable expectation of eliciting an affirmative answer to these
questions. Clemons further argues that “this improper questioning . . . allowed [the
State] to sneak inadmissible and unreliable hearsay through the back door.” Citing
to Vallone v. State, 147 S.W.2d 227, 232 (Tex. Crim. App. 1941) (op. on reh’g),
Clemons argues that the State may not propound questions that “obviously are not
expected to elicit proof or lay a predicate for legitimate evidence.” Therefore,
according to Clemons, the State’s questions of Clemons were “improper because
the [State] obviously expected to elicit from Mr. Clemons denial after denial . . . to
28
its questions without any good-faith basis or reasonable expectation of eliciting
affirmative answers to them.”
We review the admission or exclusion of evidence under an abuse of
discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.
1995); In re Commitment of McCarty, No. 09-12-00083-CV, 2013 Tex. App.
LEXIS 7855, at **4-5 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem.
op.). A trial court abuses its discretion when it acts without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985). We will not reverse a judgment on the admission or
exclusion of evidence unless the appellant establishes that the trial court’s ruling
was in error and that the error was reasonably calculated to cause and probably did
cause the rendition of an improper judgment. See McCarty, 2013 Tex. App. LEXIS
7855, at *5; see also Tex. R. App. P. 44.1(a)(1).
To preserve error concerning evidentiary rulings, a party’s objection must be
timely, and it must specifically state the grounds on which the objection is based, if
the grounds are not apparent from the context. Tex. R. Evid. 103(a)(1); Tex. R.
App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
Even if preserved, the erroneous “admission or exclusion [of evidence] is likely
harmless if the evidence was cumulative, or if the rest of the evidence was so one-
29
sided that the error likely made no difference.” Reliance Steel & Aluminum Co. v.
Sevcik, 267 S.W.3d 867, 873 (Tex. 2008) (footnote omitted). “[E]rror in the
admission of testimony is deemed harmless and is waived if the objecting party
subsequently permits the same or similar evidence to be introduced without
objection.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004);
see also Breof BNK Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 67 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (“When an objection to evidence is
properly made, the subsequent presentation of essentially the same evidence
without objection waives any complaint regarding the admission of the
evidence.”).
The reporter’s record reflects that defense counsel did not lodge an objection
until the State had asked more than a dozen questions of Clemons regarding the
details of the offenses. Defense counsel then objected that “[t]here’s no good-faith
basis for this line of questioning. Mr. Clemons has denied the details of the
convictions, the details during his deposition, with his evaluation with Dr. Turner
and with his evaluation with Dr. Clayton.” The court overruled the objection, and
the line of questioning continued for about ten pages. The defense made no further
objection and did not request a running objection. Therefore, by his failure to
object to the previous and subsequent questioning, Clemons has waived the issue
30
for appeal. See Volkswagen of Am., Inc., 159 S.W.3d at 907; see also Tex. R. App.
P. 33.1(a).
We also disagree with Clemons’s interpretation and application of Vallone.
In Vallone, the Court of Criminal Appeals held that the State should not seek to
admit testimony in a criminal proceeding of facts that are damaging to a criminal
defendant by asking the defendant irrelevant questions or by asking questions that
are not expected to elicit proof or lay a predicate for legitimate evidence. 147
S.W.2d at 232. The questions the State asked Clemons regarding the details of the
offenses were relevant because in an SVP civil commitment proceeding, testimony
from the defendant concerning his offenses is relevant to the jury’s determination
of whether the defendant has a behavioral abnormality and is a sexually violent
predator. See, e.g., In re Commitment of Haines, No. 09-15-00526-CV, 2016 Tex.
App. LEXIS 6405, at **17-18 (Tex. App.—Beaumont June 16, 2016, no pet.)
(mem. op.); Wilson, 2009 Tex. App. LEXIS 6714, at *14 (a jury may infer current
dangerousness from expert testimony and from a defendant’s past behavior and his
own testimony); In re Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex.
App. LEXIS 228, at **18-21 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem.
op.) (concluding that the jury could have reasonably inferred that the defendant
lacked the ability to control his conduct based in part on his own testimony
31
regarding his past acts and offenses). Clemons also fails to cite to any support in
the record for his contention that the State lacked a good-faith basis for its
questions. See Tex. R. App. P. 38.1(i).
In addition to Clemons’s testimony, the jury heard testimony by Drs. Turner
and Clayton concerning their evaluation of Clemons. Additionally, Clemons’s pen
packets were admitted into evidence without objection. Therefore, we cannot say
that any error in admitting this questioning and testimony affected Clemons’s
substantial rights, and we cannot say that it was reasonably calculated to cause and
probably did cause the rendition of an improper judgment. See Haines, 2016 Tex.
App. LEXIS 6405, at **18-19; see also Tex. R. App. P. 44.1(a)(1). We overrule
Clemons’s fifth issue.
Having overruled all issues on appeal, we affirm the trial court’s judgment
and order of civil commitment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on August 3, 2016
Opinion Delivered October 20, 2016
Before Kreger, Horton, and Johnson, J.J.
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