in Re Commitment of John Wayne Hicks ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00186-CV
_________________
IN RE COMMITMENT OF JOHN WAYNE HICKS
________________________________________________________________________
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 57373
________________________________________________________________________
MEMORANDUM OPINION
Pursuant to the Sexually Violent Predators Act, a jury unanimously found
beyond a reasonable doubt that John Wayne Hicks is a sexually violent predator. See
Tex. Health & Safety Code Ann. §§ 841.061–.062 (West 2017). The trial court
adjudicated him as a sexually violent predator and civilly committed him for sex-
offender treatment and supervision. Hicks presents two issues for our consideration
on appeal. Hicks contends the evidence is legally and factually insufficient to
support a finding beyond a reasonable doubt he has a behavioral abnormality that
1
makes him likely to engage in a predatory act of sexual violence. We overrule both
issues and affirm the trial court’s judgment.
Standard of Review
The commitment of a person as a sexually violent predator is a civil
proceeding. In re Commitment of Fisher, 164 S.W.3d 637, 645–53 (Tex. 2005). The
State must prove beyond a reasonable doubt that a person is a sexually violent
predator, which is the same burden of proof the State has in criminal cases. See Tex.
Health & Safety Code Ann. § 841.062(a). Therefore, we employ the same legal
sufficiency standard of review applied in criminal cases. See In re Commitment of
Barbee, 192 S.W.3d 835, 839 (Tex. App.—Beaumont 2006, no pet.) (citing In re
Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2003, pet.
denied)). We examine all the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could find the elements required for civil
commitment as a sexually violent predator beyond a reasonable doubt. See Mullens,
92 S.W.3d at 885 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is the
jury’s responsibility to resolve conflicts in the testimony, weigh the evidence, and
draw reasonable inferences from basic facts to ultimate facts. Id. at 887 (citations
omitted).
2
A factual sufficiency standard of review is no longer employed in criminal
cases. See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010).
However, we continue to utilize the factual sufficiency standard of review in
sexually violent predator commitment proceedings as established by the Court of
Criminal Appeals in criminal cases. See Barbee, 192 S.W.3d at 839 (citations
omitted). Under that standard, “we view all of the evidence in a neutral light and ask
whether a jury was rationally justified in finding guilt beyond a reasonable doubt.”
In re Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011, pet.
denied) (quoting In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App.—
Beaumont 2007, no pet.)). “To reverse a case on a factual sufficiency challenge, we
must be able to say that the great weight and preponderance of the evidence
contradicts the jury’s verdict or that the verdict is clearly wrong or manifestly
unjust.” Id. (quoting Gollihar, 224 S.W.3d at 846).
Sufficiency of the Evidence
The jury learned Hicks pled guilty on two separate occasions to charges of
aggravated sexual assault of a child through testimony and other records admitted at
trial. Specifically, Hicks successfully completed deferred adjudication for the first
offense, but he violated the terms of his deferred adjudication for the second offense
and was adjudicated guilty. His first offense of aggravated sexual assault of a child
3
was against his stepdaughter. The evidence showed the abuse began when the
stepdaughter was eleven years old. Hicks admitted to some version of the assault in
front of the jury, but he attempted to minimize his culpability. A statement he gave
to police around the time of the assault was admitted into evidence which graphically
depicted assaults occurring on multiple occasions during a short period of time. At
trial, when asked to explain the discrepancies in his testimony and his written
statement, he indicated he did not “remember none of it.” Hicks’s testimony
regarding the offense against his stepdaughter was contradictory. Initially, Hicks
testified that at the time of the incident, he believed his eleven-year-old stepdaughter
was a willing participant. He then indicated that after going through the classes and
programs, he did not believe she was a willing participant; however, he subsequently
confirmed he still felt his stepdaughter was sexually curious, and he believed she
wanted to have sex with him. Additionally, Hicks testified that his stepdaughter
came on to him about five times or so, and there “was a lot of times that she tried
and I wouldn’t do nothing.” Hicks also explained to the jury that his feelings of
rejection and being let down led him to offend against his stepdaughter. As a term
of his deferred adjudication for this offense, he attended a sexual offender treatment
program for ten years.
4
The second offense, and the one for which he was adjudicated guilty, was
committed against an eighteen-month-old child he was babysitting. Although Hicks
admitted at trial that he pled guilty to aggravated sexual assault, he denied doing
anything wrong to the baby or that she was his victim. This assault occurred a few
years after he was released from supervision for the first offense. Hicks began a
treatment program for sexual offenders while in prison and continued to receive
treatment at the time of trial.
Hicks also testified regarding his difficulty keeping a job. He indicated he had
no support except for his mother. He also attempted to explain how he violated the
terms of deferred adjudication by nonpayment of fees; however, his expert indicated
that he violated other rules as well.
The State called psychiatrist Dr. David Self to testify as an expert. Dr. Self
described the methodology he uses when performing an evaluation and testified he
used the same methodology in this case. He indicated he reviewed the records from
multiple sources. Dr. Self testified that he did not score any tests, but he reviewed
the results of actuarial tests provided. He explained how he arrived at his opinion in
this case, which included empirical research and risk factors.
Dr. Self met with Hicks in November of 2016 for about an hour and a half.
Dr. Self indicated Hicks provided a minimized version of the offense against his
5
stepdaughter when they met, like the version Hicks provided to the jury. Dr. Self
indicated that Hicks’s minimization was significant because his refusal to “own his
behavior” made it almost impossible to prevent it from happening again.
Dr. Self discussed how the age of the victims and their family status impacted
his evaluation of risk factors. He also explained the wide age gap of his victims
provides an opportunity for a large number of potential victims. Dr. Self testified
that the younger the child is, the more deviant the act is, so he would consider that
as a risk elevator. Dr. Self testified that the persistence of Hicks’s deviant interest
after punishment coupled with the fact that Hicks engaged in a more deviant act
following punishment was significant and showed he could not help himself.
Dr. Self described the clinical factors he found significant in Hicks; he was
sexually deviant, and he has nonexclusive pedophilic disorder with a female
preference. Dr. Self explained pedophilic disorder as an abnormal desire to have sex
with prepubescent children and described the diagnostic criteria for that disorder. He
indicated the criminal history of Hicks supported that diagnosis. Dr. Self confirmed
that pedophilic disorder was a chronic condition for Hicks. Dr. Self agreed
pedophilic disorder is a congenital or acquired condition. Dr. Self opined that it
affected Hicks’s emotional or volitional capacity as evidenced by the fact that he
6
went through the rigors of deferred adjudication once and received messages about
how wrong the behavior was, then proceeded to do a more egregious thing.
Dr. Self explained that Hicks’s denial was indicative of a tolerant attitude
toward sexual assault. Dr. Self did not diagnose Hicks as being antisocial but
testified he had adult antisocial behaviors related to these sex acts. Dr. Self indicated
Hicks’s intellectual ability was significantly below average, but he was not
intellectually disabled. Dr. Self explained that intellectual deficit is associated with
an increased risk of offensive behavior. Dr. Self considered borderline intellectual
functioning a risk factor for Hicks and doubted Hicks had good insight into his
offending. Dr. Self considered Hicks to be a treatment failure. Specifically, Dr. Self
testified Hicks was kicked out of his second treatment program for “fail[ing] to
progress,” and he was not attending regularly. Dr. Self explained why it was
significant that Hicks did not complete the sex offender treatment. Dr. Self told the
jury that Hicks is currently in a TDCJ treatment program, but he did not learn much
from reviewing the records except that Hicks had difficulty digesting the material
and repeatedly failed tests.
Hicks and Dr. Self also discussed his plans for release, which Dr. Self deemed
unrealistic. Dr. Self explained that Hicks does not have a good support system in
place, and Hicks’s plan to avoid sexual re-offense was to stay away from children.
7
Dr. Self acknowledged Hicks’s score of 1 on the Static-99R, which indicated
a low to moderate risk to reoffend; however, Dr. Self testified he did not feel the test
result was an accurate representation of Hicks’s risk to reoffend. Dr. Self testified
that Hicks’s risk of re-offense was moderate to high and above average. Dr. Self
explained the ultimate factors that underline the determination that Hicks has a
behavior abnormality include the pedophilic disorder, Hicks acting upon it, the
manner in which he acted upon it, with whom he acted on it, and the projected
instability of his life upon release. Dr. Self believed Hicks suffers from a behavioral
abnormality defined in Chapter 841 making him likely to engage in a predatory act
of sexual violence.
Psychologist Dr. John Fabian testified as an expert on Hicks’s behalf. Dr.
Fabian defined a behavioral abnormality by quoting the statute and stated it is “a
congenital or acquired condition that, by affecting a person[’]s emotional or
volitional capacity, predisposes a person to commit a sexually violent offense, to the
extent that the person becomes a menace to the health and safety of another person.”
Dr. Fabian met with Hicks for several hours in December of 2016. Dr. Fabian
outlined the records he reviewed prior to meeting with Hicks, which included a sex
offender risk assessment, police reports, witness statements, TDCJ records, and
records regarding the prior offense history. Dr. Fabian indicated he reviewed Hicks’s
8
life history, offense history, performed a Personality Assessment Inventory, and
administered an IQ test.
Additionally, Dr. Fabian testified about the actuarial tests used to assess
Hicks, including the Static-99R and PCL-R. He also explained how the Static-99R
measures risk factors. Dr. Fabian agreed it was important to look at dynamic risk
factors as well, even though they do not appear on the Static-99R. Dr. Fabian
described how he administers a Static 99 and explained the scoring. He indicated
Hicks scored a 1 on the Static-99R and described how he arrived at that score. Dr.
Fabian agreed it was possible for someone to have a score of zero or lower and still
have a behavioral abnormality, but it was unlikely. He opined Hicks is a low risk to
reoffend based on his Static-99R score.
Dr. Fabian also described the Hare Psychopathy Checklist Revised (PCL-R)
assessment, which measures criminal personality traits. His testimony revealed he
did not administer a PCL-R to Hicks, but he scored the instrument as he saw fit based
on his review of the records, Hicks’s background, and the interview. Dr. Fabian
testified Hicks scored an 18 on the PCL-R, which indicated Hicks has mild
psychopathic traits that are below average among other inmates in general inmate
populations. Dr. Fabian testified the trend is to now look more at dynamic factors
which do not appear on these tests.
9
Dr. Fabian indicated that Hicks’s age lowered his risk to reoffend. He also
considered that Hicks’s victims were acquaintances, which the doctor claimed
indicated a lower risk to reoffend than someone who assaults strangers. Finally, Dr.
Fabian believed that the fifteen-year span between offenses indicated Hicks had
some control over his behavior. However, Dr. Fabian agreed Hicks’s risk of re-
offense could elevate if he experienced “negative emotionality.” Dr. Fabian also
agreed past behavior is a good predictor of future behavior. He indicated it was
important to consider the details of a person’s offense in the evaluation for purposes
of diagnosis, but the heinousness of the crime is not related to risk. Dr. Fabian agreed
there was an issue in the age gap of his victims, eighteen months to eleven years,
which is a diversity in age that was unusual and a risk factor. Dr. Fabian agreed
Hicks had been in treatment for four months and was still not completely
acknowledging responsibility. He indicated Hicks was low functioning and it was
possible that his level of functioning could make it difficult for him to gain insight
into his sexual offending.
Although Dr. Fabian diagnosed Hicks with pedophilic disorder and
considered him to be sexually deviant, he did not believe Hicks had a condition that
predisposed him to commit a sexually violent offense to the extent he is likely to be
10
a menace to the health and safety of another person. He ultimately characterized
Hicks’s risk of reoffending as low.
Analysis
In a civil commitment proceeding under Chapter 841 of the Texas Health and
Safety Code, the State must prove a person is a sexually violent predator beyond a
reasonable doubt. Tex. Health & Safety Code Ann. § 841.062(a). To be a “sexually
violent predator,” an individual: (1) must be a repeat sexually violent offender; and
(2) suffer from a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. Id. § 841.003(a) (West 2017). “Behavioral
abnormality” is defined by statute to mean “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 2017); see also
In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—Beaumont 2003,
pet. denied) (“A condition which affects either emotional capacity or volitional
capacity to the extent a person is predisposed to threaten the health and safety of
others with acts of sexual violence is an abnormality which causes serious difficulty
in behavior control.”).
11
The parties do not dispute Hicks is a repeat violent sexual offender on appeal. 1
The parties disagree that he has a behavioral abnormality that makes it likely he will
engage in a predatory act of sexual violence. In the case before us, the State’s expert
and defense expert diagnosed Hicks with pedophilic disorder. Likewise, both experts
considered him to be sexually deviant, and Hicks had previously admitted to having
“deviant thoughts”. Indeed, the State’s expert characterized Hicks’s offense against
the eighteen-month-old as “off the charts deviant.” Dr. Self testified that the younger
the child is, the more deviant the act is, which he considered a risk elevator. Dr. Self
explained that the persistence of Hicks’s deviant interest after punishment and the
fact that he engaged in a more deviant act after punishment indicated “he just was
unable to control himself.”
Moreover, both experts testified regarding Hicks’s refusal to fully accept
responsibility and minimization. The State’s expert explained this revealed a tolerant
attitude about sexual assault, which is a risk factor. The defense expert similarly
acknowledged with respect to the PCL-R that some of the higher risk behaviors he
found were criminal versatility, failure to accept responsibility for one’s own
1
The trial court granted the State’s motion for directed verdict that Hicks was
a repeat violent sexual offender.
12
actions, conning and manipulative behavior, promiscuous sexual behavior, and
revocation of conditional release.
Although Dr. Fabian agreed Hicks suffered from pedophilic disorder, he
disagreed with the State’s expert that this condition made it likely Hicks would
reoffend. He relied on Hicks’s Static-99R score, which was 1. Dr. Self categorized
Hicks’s risk to reoffend as moderate to high and testified the factors that underline
his determination Hicks has a behavioral abnormality included the pedophilic
disorder, the fact that he acted on it, the way he acted on it, with whom he acted on
it, and a projected instability of Hicks’s life upon release. The State’s expert focused
on the fact Hicks had been through a treatment program for his first offense and was
aware of how negatively society viewed this behavior yet went on to engage in even
more deviant behavior afterwards, which indicated a lack of control and a risk factor
for reoffending. Indeed, even Hicks’s expert acknowledged there is a trend to
emphasize dynamic factors over static factors.
At trial, despite his assertions that he took responsibility, Hicks indicated his
stepdaughter was the instigator when the first offense occurred. Specifically, Hicks’s
testimony revealed he still believed his eleven-year-old stepdaughter to be a willing
participant. He told the jury she came on to him repeatedly and there “was a lot of
13
times that she tried and I wouldn’t do nothing.” He also admitted during trial that he
assaulted his stepdaughter while other children slept in the bed with them.
The jury is the sole judge of the credibility of the witnesses and the weight to
be given their testimony. Mullens, 92 S.W.3d at 887. “It is the fact finder’s
responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and
draw reasonable inferences from basic to ultimate facts.” In re Commitment of
Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
(citing Mullens, 92 S.W.3d at 887). The jury could have discounted the testimony of
Hicks’s expert entirely, partially, or simply given more credence to the State’s expert
with respect to Hicks’s risk factors and the likelihood he would reoffend. Both
experts agreed he suffered from pedophilic disorder, which the United States
Supreme Court has noted is “a mental abnormality that critically involves what a lay
person might describe as a lack of control.” See Kansas v. Crane, 534 U.S. 407, 414
(2002). The State’s expert felt Hicks was at a moderate to high risk of reoffending
and explained the underlying factors that led to that conclusion. Where an expert
witness provides a basis for their opinion and that basis is supported by the record,
the jury resolves any conflicts or contradictions with respect to the expert’s
testimony. In re Commitment of Rushing, No. 09–11–00268–CV, 2012 WL
4466421, at *5 (Tex. App.—Beaumont Sept. 27, 2012, no pet.) (mem. op.) (citing
14
Thota v. Young, 366 S.W.3d 678, 695 (Tex. 2012); City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005)).
Although the principal issue in a commitment proceeding is whether a person
is predisposed to sexually violent conduct, in the present case “the diagnosis of [a]
mental disorder[ ] informed the experts’ opinions regarding whether” Hicks has a
“behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence.” See In re Commitment of Williams, No. 09–14–00407–CV, 2016 WL
1600789, at *4 (Tex. App.—Beaumont Apr. 21, 2016, no pet.) (mem. op.). While
the experts disagreed regarding Hicks’s risk to reoffend by committing a sexually
violent offense following his release and drew different conclusions from the same
evidence, each expert articulated their reasoning to the jury and why the evidence
supported that reasoning. See id. at *5. Each expert explained to the jury the factors
they considered in evaluating Hicks’s risk of reoffending, including the use of the
actuarial instruments and other dynamic factors, and the jury could determine what
weight to give to each expert’s testimony. See id.; Rushing, 2012 WL 4466421, at
*5.
Other considerations for the jury were the age of the victims and the fact that
Hicks assaulted an eighteen-month-old. The jury could have determined that the
assault on the eighteen-month-old, despite receiving ten years of treatment for a prior
15
sexual offense and being punished for the prior offense, was evidence of Hicks’s
lack of control. The jury also could have placed significant weight on Hicks’s own
words, in which he attempted to justify the assault against his stepdaughter by stating
she “came onto him” and was “sexually curious.” The jury was the sole judge of
Hicks’s credibility and the weight to be given to his testimony, as well. See Mullens,
92 S.W.3d at 887.
Conclusion
When examining the evidence in the light most favorable to the verdict, we
determine a rational jury could find beyond a reasonable doubt that Hicks is a
sexually violent predator, and therefore, the evidence is legally sufficient to support
the verdict. See Tex. Health & Safety Code Ann. § 841.062(a); Mullens, 92 S.W.3d
at 885, 887. We likewise conclude the evidence is factually sufficient to support the
jury’s finding. Weighing all the evidence, the verdict does not reflect a risk of
injustice compelling us to order a new trial. See Day, 342 S.W.3d at 213. We
overrule issues one and two. We affirm the trial court’s judgment and order of
commitment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
16
Submitted on July 9, 2018
Opinion Delivered March 7, 2019
Before McKeithen, C.J., Kreger, and Johnson, JJ.
17