in Re Commitment of John Riley Ramshur ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00286-CV
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IN RE COMMITMENT OF JOHN RILEY RAMSHUR
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On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 24,095
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MEMORANDUM OPINION
Pursuant to the Sexually Violent Predators Act, a jury unanimously found
beyond a reasonable doubt John Riley Ramshur was a sexually violent predator. See
Tex. Health & Safety Code Ann. §§ 841.001–.062 (West 2017). In his appeal from
the judgment, Ramshur presents two issues. Ramshur asserts the evidence is legally
and factually insufficient to support a finding beyond a reasonable doubt he has a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
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violence. See id. § 841.003(a)(2). We overrule these issues and affirm the trial
court’s judgment.
Standard of Review
In conducting a legal sufficiency review of a trial court’s determination that
an individual is a sexually violent predator, 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 2002, pet. denied)).
Accordingly, 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). However, we continue to utilize the factual sufficiency standard of review
in sexually violent predator commitment proceedings as previously utilized by the
Court of Criminal Appeals in criminal cases. See Barbee, 192 S.W.3d at 839. 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
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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).
Evidence
Through a penitentiary packet and the testimony of Ramshur, the jury learned
he had three convictions for sexual assaults of children. Specifically, Ramshur had
one conviction for sexual assault of a child and two convictions for aggravated
sexual assault of a child. Ramshur pled guilty to each of these offenses. The two
convictions for aggravated sexual assault of a child involved offenses against
Ramshur’s stepdaughters. The evidence showed the abuse began when the
stepdaughters were ages five and seven and continued for nine years. Ramshur
admitted at trial he committed these offenses, and the abuse continued for years. The
third sexual assault conviction was the result of an offense committed against his
girlfriend’s daughter, who was intellectually disabled. Records contained within the
penitentiary packet showed Ramshur was also indicted for offenses committed
against his biological daughter beginning when she was six years old, but that charge
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was later dismissed in the plea agreement which resulted in the other convictions.
Moreover, the record reveals there were allegations involving two other girls that
did not result in indictments or convictions. Ramshur was sentenced to twenty years
in prison and had served approximately fifteen years at the time of trial. While in
prison, Ramshur began a treatment program for sexual offenders, which he
continued to receive at the time of trial.
The State’s first expert was Dr. Darrel Turner, a licensed clinical psychologist.
Dr. Turner described for the jury his methodology for conducting behavioral
abnormality evaluations. Dr. Turner testified he reviewed records pertaining to
Ramshur and administered certain tests. Additionally, Dr. Turner met with Ramshur
for about two and a half hours and interviewed him. Dr. Turner explained records
and historical information were important in assessing the offender’s risk factors.
Dr. Turner diagnosed Ramshur with “pedophilic disorder nonexclusive-type
attracted to females.” Dr. Turner explained the “nonexclusive” diagnosis meant
Ramshur was attracted to children as well as same-age peers. Dr. Turner testified
when he met with Ramshur, Ramshur could not identify his offense cycle, which
was very concerning. Dr. Turner described what an offense cycle was and how it
provides insight into why offenders do what they do, and he explained why it is
important for offenders to recognize high-risk situations. Dr. Turner explained some
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of the current evidence of Ramshur’s sexual deviance included his inability to
understand and appreciate the damage he has caused by his actions; instead, he
blamed the victim and made himself the victim.
In addition to pedophilic disorder, Dr. Turner diagnosed Ramshur with
antisocial personality disorder. He explained antisocial personality disorder allows
sex offenders to victimize people without remorse. Dr. Turner discussed some
behaviors from Ramshur’s childhood to support the diagnosis. Dr. Turner testified
that while Ramshur was on supervised release for burglary of a habitation, he
committed sexual offenses against children, which research indicates is a risk factor.
Dr. Turner stated Ramshur’s continued victim denigration was an ongoing sign of
his antisocial personality disorder, as were his denials and partial admissions.
Dr. Turner administered several assessments, including the PCL-R to measure
for psychopathy, and the Static-99R. Ramshur scored 25 out of 40 on the PCL-R,
and Dr. Turner classified him as a psychopath.1 Dr. Turner explained the Static-99R
is a risk assessment tool that identifies certain factors related to a higher risk of
reoffending, and the more traits the person has, the higher their risk of reoffending.
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Dr. Turner testified the old cutoff for a psychopath diagnosis was a score of
30 out of 40, but there are new recommendations indicating a score of 25 should be
the cutoff. Regardless, Dr. Turner felt Ramshur had a large degree of psychopathic
characteristics.
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Dr. Turner said Ramshur scored zero on the Static tests, which indicates a very low
risk of reoffending. Nonetheless, Dr. Turner said in this case the Static score was not
a very accurate representation of Ramshur’s true risk and outlined various things the
Static test did not consider.
Dr. Turner testified protective factors can lower someone’s risk level, and
Ramshur had certain protective risk factors: no male victims, no substance abuse
history, he obtained his GED in prison, and he had realistic release goals for the
future, based on the date that Ramshur expected he would be released from prison.
Dr. Turner added Ramshur’s age could be a protective factor to an extent, since there
is usually a large drop-off in the risk of reoffending after age sixty; however,
Ramshur continued offending until he was almost forty years old, which statistically
is later than a twenty-year-old offender whose risk of offending sharply decreases
after age sixty.
Dr. Turner stressed the biggest risk factors for recidivism in Ramshur’s case
are the presence of psychopathy/antisociality and the presence of sexual deviance.
Per Dr. Turner, these risk factors together increase the risk of reoffending
exponentially. Dr. Turner testified he believes Ramshur is at a high risk to reoffend.
Dr. Turner opined that “Mr. Ramshur suffers from a behavioral abnormality that
predisposes him to engage in a predatory act of sexual violence.”
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The State also called Dr. David Self, a psychiatrist, to testify as an expert. Dr.
Self described the methodology he uses when he performs an evaluation. He
indicated he gathers information from different sources and examines the person to
see where the information and facts lead him. Dr. Self testified he does not score any
tests, but he reviews the results the psychologists provide. He testified he was
informed by empiric research and he looked at risk factors for the patient.
Dr. Self met with Ramshur in December of 2016 for about an hour and a half.
With respect to his risk assessment, Dr. Self found it significant that the sexual abuse
of Ramshur’s stepdaughters began when they were young, around five or six, and
persisted over a period of nine or ten years. The other offense involved the daughter
of a girlfriend, who was sixteen and intellectually disabled. Dr. Self found
Ramshur’s use of threats against the victims to be consistent and significant to his
evaluation.
Dr. Self diagnosed Ramshur with pedophilic disorder and described the
criteria for that diagnosis. Dr. Self believed Ramshur’s pedophilic disorder was
nonexclusive, which meant he was sexually attracted to adults as well. Dr. Self
explained that pedophilic disorder was a chronic condition. He also confirmed it
affected Ramshur’s emotional and volitional capacity. Dr. Self explained that
Ramshur’s victim blaming was indicative of a tolerant attitude toward sexual assault.
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Dr. Self testified denial was a cardinal feature of antisocial characteristics. Dr. Self
did not believe Ramshur met the full criteria for antisocial personality disorder;
instead, he diagnosed Ramshur as having a personality disorder not otherwise
specified with antisocial traits because he found little evidence of a conduct disorder
in Ramshur’s childhood prior to the age of fifteen. Dr. Self said antisocial traits
included failure to obey rules, disregard for people’s rights and liberties, lying, and
stealing. Dr. Self thought Ramshur had enough problems to call it a disorder but not
necessarily a full-blown antisocial personality disorder; however, he did not think it
was unreasonable that Dr. Turner diagnosed Ramshur with antisocial personality
disorder, explaining it was a “close call.” He confirmed that in any case, Ramshur
exhibited many antisocial personality traits. Dr. Self explained antisocial traits were
relevant to whether Ramshur had a behavioral abnormality because many people
have sexually deviant interests, but they do not act on them because they have “social
brakes.” Most people have moral codes and feelings of guilt that stop them before
they act, but when people do not have such controlling social emotions such as guilt,
remorse, and empathy, they tend to engage in the deviant act. Dr. Self described his
diagnosis as consistent with that of Dr. Turner.
Dr. Self testified that while sex offender treatment has been shown to reduce
risk of re-offense to some extent, Ramshur was not doing well in treatment. Dr. Self
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explained the treatment notes revealed Ramshur was not “owning his acts” but
continued to minimize and deny what he had done. When Dr. Self interviewed him,
Ramshur indicated he would say or do anything to get out of prison. In other words,
he was dotting the I’s and crossing the T’s to make parole, which meant the treatment
would not be effective. Dr. Self testified Ramshur’s age is probably the most robust
factor that would reduce Ramshur’s risk of reoffending.
Dr. Self indicated two overarching notions embodied most of Ramshur’s risk:
first was sexual deviance or abnormal sexual desires and second was antisocial or
criminality about the individual. Dr. Self characterized Ramshur’s risk of
reoffending as moderate to high. Dr. Self opined that he believed “Mr. Ramshur has
the behavioral abnormality that’s described in Chapter 841 of the Texas Health and
Safety Code.”
Psychologist Dr. Marisa Mauro testified as an expert on Ramshur’s behalf.
Dr. Mauro recited the Code’s definition of a behavioral abnormality 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.” Tex. Health
& Safety Code Ann. § 841.002(2). Dr. Mauro testified she looked at the types of
sexually violent offenses committed to determine whether the person she is
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evaluating is at risk of committing more offenses in the future. Dr. Mauro described
her methodology in conducting her evaluation of Ramshur. She described her review
of Ramshur’s records, interviewing him, and utilizing actuarial instruments. She
testified she reviews historical records because they help her consider whether
someone has a diagnosis, as well as their risk variables.
Dr. Mauro interviewed Ramshur for three hours and forty minutes. She
testified that, during the interview, Ramshur summarily denied having committed
the offenses on which his convictions are based. Dr. Mauro also discussed the
penitentiary packet containing information about Ramshur’s convictions and
indictments and how she considered the convictions in formulating her opinion. Dr.
Mauro indicated she weighted convictions more heavily, and she gives less weight
to the individual allegations. Dr. Mauro said Ramshur’s criminal history was
minimal outside of the sexual convictions. She indicated he was under community
supervision for a separate offense when he committed these offenses and conceded
that offending while on supervision is a risk factor. She also diagnosed Ramshur
with “pedophilic disorder nonexclusive” and “limited to females.” Dr. Mauro
acknowledged the abuse of his stepdaughters went on for a period of nine to ten
years, and she considered the length of abuse when diagnosing pedophilia.
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She credited Ramshur for obtaining a GED in prison and associated that with
increased life stability and a reduced risk to criminally recidivate. Dr. Mauro testified
Ramshur was on track to complete a sex offender treatment program, which can also
reduce risk. Her clinical impression was Ramshur had borderline intellectual
functioning. Dr. Mauro also testified she disregarded a note from the sexual
treatment provider found in Ramshur’s files. The note indicated Ramshur was at risk
to reoffend, but in Dr. Mauro’s opinion, there was no context from which to show
how the impression was formed or any indication the provider completed a risk
assessment before forming such an opinion, and Dr. Mauro felt the opinion seemed
to be more emotionally based.
Dr. Mauro testified that Ramshur does not have a condition that makes him
likely to commit a sexually violent offense. While she agreed he has pedophilic
disorder, she did not believe that condition alone makes him likely to reoffend, and
the static test scores supported her opinion that his risk was low. Dr. Mauro agreed
that Ramshur’s pedophilic disorder was likely to be a chronic condition. And while
Dr. Mauro defined a sexual recidivist as someone who committed a sex offense, was
convicted, and then reoffended, she maintained Ramshur did not meet that definition
as he was not an individual who committed an offense, was convicted, then went out
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and did it again. That being said, Dr. Mauro agreed Ramshur had not had the
opportunity to reoffend because he has been incarcerated since his convictions.
Dr. Mauro acknowledged Ramshur still exhibited thinking errors. While she
agreed Ramshur assumed a victim stance and shifted blame to his victims early on,
she testified those things were improving through his treatment. Dr. Mauro
confirmed Ramshur has a condition, but she testified it does not predispose him to
commit a sexually violent offense to the extent that he is a menace to the health and
safety of another person.
Dr. Mauro discussed the testing and assessments she performed on Ramshur.
She testified Ramshur scored 25 on the PCL-R, which was the same score Dr. Turner
gave him. In determining psychopathy, she used the traditional cutoff of 30. Dr.
Mauro believed a score of 25 still falls within a “mixed” range. Mauro did not
diagnose antisocial personality disorder, but she did not feel such a diagnosis was
completely unreasonable. Dr. Mauro indicated Ramshur’s score of zero on the
Static-99R test was associated with below average risk, and his score on the Static-
2002R test of 3 indicated a low-moderate risk.
Dr. Mauro confirmed her opinion that Ramshur suffers from a deviant
condition, but she felt that the condition did not make Ramshur likely to be a menace
to the health and safety of others. According to Mauro, Ramsur does not meet the
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statutory definition that applies to classifying a person as a sexually violent predator.
She characterized Ramshur’s risk of reoffending as low to moderate.
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). “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).
The parties do not dispute Ramshur is a repeat violent sexual offender, and
the record reveals he had three convictions for sexually assaulting children, two for
aggravated sexual assault of a child and one for sexual assault of a child. The point
of contention is whether Ramshur has a behavioral abnormality that makes it likely
he will engage in a predatory act of sexual violence. In the case before us, not only
did the State’s experts diagnose Ramshur with pedophilic disorder, his own expert
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diagnosed him with the same condition. Moreover, each of the experts testified
regarding antisocial traits that Ramshur exhibited, including denial, victim
denigration, and casting himself in the role of the victim. Dr. Turner went so far as
to diagnose Ramshur with antisocial personality disorder,which allows him to
victimize people without remorse. The State’s experts explained to the jury the
danger associated with these antisocial characteristics when coupled with pedophilic
disorder and why it increased the likelihood Ramshur would reoffend.
Although Dr. Mauro agreed Ramshur suffered from pedophilic disorder, she
disagreed with the State’s experts that this condition made it likely Ramshur would
reoffend. She relied heavily on Ramshur’s Static-99R score, which was zero. In
doing so, she discounted the importance of treatment notes from Ramshur’s sex
offender treatment program and asserted his denials and victim denigration seemed
to be improving. Dr. Mauro also asserted that because Ramshur has not reoffended
after his convictions, it is unlikely he would recidivate. In contrast to Dr. Mauro’s
opinions, the State’s experts countered that Ramshur has not had the opportunity to
reoffend after his conviction because he has been incarcerated the entire time.
Moreover, the State’s experts emphasized Ramshur’s lack of progress in the sex
offender treatment program and pointed to his denials, difficulty grasping terms, and
an inability to identify his offense cycle. The State’s experts focused on the fact that
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Ramshur was on community supervision for other criminal offenses when he
offended against these children, which indicates a lack of control and a risk factor
for reoffending. Dr. Turner cautioned against relying too heavily on the Static-99R
score and stressed Ramshur’s risk factors outweighed the protective factors in any
assessment. Finally, in his deposition, Ramshur testified that leaving him alone with
children was like putting a piece of steak in front of a dog, and Ramshur conceded
in front of the jury that he made that statement.
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. A reasonable jury could have
discounted the testimony of Ramshur’s expert entirely, partially, or simply given
more credence to the State’s experts with respect to Ramshur’s risk factors and the
likelihood he would reoffend. The evidence was clear Ramshur is a repeat violent
sexual offender. Moreover, all the experts agree he suffers 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). Two of the three experts felt he was at risk to
reoffend and explained the underlying factors that led them 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
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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.). Here
“the diagnos[es] of mental disorders informed the experts’ opinions regarding
whether” Ramshur 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 the degree of risk Ramshur
poses to committing a sexually violent offense following his release from prison and
drew different conclusions from the same evidence, each expert articulated their
reasoning to the jury and the evidence each felt supported that reasoning. See id. at
*5. Each expert explained their evaluation of the risk factors, the protective factors,
and the scoring of the actuarial instruments to the jury, and the jury could determine
the weight to give to each expert’s testimony. See id.; Rushing, 2012 WL 4466421,
at *5. The jury also could have placed significant weight on Ramshur’s own words,
in which he likened himself being alone with children to steak being placed in front
of a dog.
Conclusion
When examining the evidence in the light most favorable to the verdict, we
determine a rational jury could find Ramshur is a sexually violent predator beyond
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a reasonable doubt, 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. Additionally, 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.
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CHARLES KREGER
Justice
Submitted on October 2, 2018
Opinion Delivered December 6, 2018
Before McKeithen, C.J., Kreger and Horton, JJ.
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