in Re the Commitment of Larry Corder ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-020 CV ____________________

IN RE THE COMMITMENT OF LARRY CORDER

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On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 05-06-05384-CV

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MEMORANDUM OPINION  

The trial court found appellant Larry Corder to be a sexually violent predator ("SVP") and ordered his civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp. 2006). The SVP statute defines "sexually violent predator" as a person who "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003. The statute defines "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." Id. § 841.002(2). In two issues, Corder challenges the legal and factual sufficiency of the evidence supporting the trial court's findings that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. We affirm.

The Evidence

Both Corder and the State offered portions of Corder's deposition testimony at trial. Corder testified that he was twice convicted of indecency with a child, and he also testified that as a juvenile, he vaginally raped his five-year-old stepsister. Corder testified that he also engaged in anal intercourse with his stepsister. Corder was placed in juvenile detention, and he was eventually placed on probation. When Corder was nineteen years old, he removed a five-year-old girl's clothes and rubbed against her buttocks with his penis. Corder pleaded guilty to the indecency with a child offense and was sentenced to ten years of probation. Corder did not successfully complete his probation because he subsequently pleaded guilty to arson. When Corder pleaded guilty to arson, he was sentenced to five years of confinement. Corder's probation for the indecency with a child offense was also revoked, and he was sentenced to eight years of confinement.

After serving part of his sentence, Corder was released on parole, but while he was on parole, he touched the crotch of a five-year-old boy and was convicted of indecency with a child by contact. Corder testified that he was also convicted of aggravated sexual assault for placing his finger inside the anus of a four-year-old girl. Corder opined that he could control himself, but he chose not to control himself when he committed the offenses. Corder explained that he chose not to control himself because he "didn't see the harm that [he] was inflicting upon the victims." Corder testified that he now believes he harmed the children, and he partially attributed this insight to his participation in the Sex Offender Treatment Program ("SOTP"). However, Corder testified that although he had asked to participate in the SOTP, he is not currently participating, and he did not complete the program when he was enrolled previously. He did complete three phases of drug and alcohol treatment in prison. Corder testified that his fantasies are currently "age appropriate," and he has stopped watching anything on television other than the news. Corder also testified that he participates in "Tex Cure Sort", a support group "dealing specifically with Texas sex offenders and treatment." Corder further testified that upon his release, he would immediately contact MHMR for treatment. Corder testified, "Because of my tendencies that I used to have, it's best for me to stay away [from children]. It's as simple as that. There is an offense cycle, and if there are a lot of triggers placed on me at one time and I don't have somebody that I can be accountable to then, yes, I could [reoffend]."

The State next called board-certified psychiatrist Dr. Lisa Clayton to testify at trial. Dr. Clayton testified that she interviewed Corder for two to three hours. Dr. Clayton reviewed Corder's multidisciplinary referral packet, pen packet with disciplinary records, educational records from TDCJ, sex offender treatment records from TDCJ, and medical records from TDCJ. Based upon her interview with Corder and her review of his records, Dr. Clayton opined that Corder has a behavioral abnormality that makes him likely to reoffend.

Dr. Clayton testified that she diagnosed Corder as suffering from pedophilia, alcohol abuse, and antisocial personality disorder. Dr. Clayton explained that she used the DSM-IV-TR guidelines in diagnosing Corder with pedophilia, and she based the diagnosis upon Corder's longstanding history of molesting young children, as well as the fact that he still had fantasies about his victims at the time of the interview. Dr. Clayton also utilized the DSM-IV-TR criteria in diagnosing Corder with antisocial personality disorder. She explained that antisocial personality disorder involves "a pattern throughout adolescence and adulthood [of] using others, manipulating them; breaking laws; unstable work history; I guess criminal-type behavior; impulsivity; failure to plan ahead, like deceitfulness, manipulation." According to Dr. Clayton, Corder met the criteria for antisocial personality disorder because he repeatedly broke the law, showed irresponsibility, had a "spotty work history," and lacked remorse.

Dr. Clayton explained that Corder also met the DSM-IV-TR criteria for alcohol abuse because "he had an admitted history of abusing alcohol, getting so drunk he would miss work . . . and . . . he said he had committed some of his offenses while he was drinking." Dr. Clayton testified that although Corder had received substance abuse education in TDCJ, he had not received treatment for substance abuse. Dr. Clayton also noted that although Corder received sex offender treatment for a few months after his incarceration, he quit the program after four months because he "felt like he was being attacked by peers and counselors and that the counselors wanted him to admit to things that he couldn't admit to."

Although Dr. Clayton testified that she is not an expert on actuarial instruments, she reviewed the actuarials pertaining to Corder, and the actuarials factored in "a small part" of her opinion. Dr. Clayton testified that Corder has a "lifelong pattern of offending," and he lacks any genuine remorse or empathy for his victims. She also testified that she felt Corder minimized some of his offenses. Dr. Clayton identified the following as Corder's risk factors for reoffending: "The fact that he has offended sexually against children since about the age of 13; he has continued to offend even after being in juvenile prison and then in adult prison; that he still admits to having fantasies of his victims, which are children[.]" She also testified that past behavior is the best indicator of future behavior. Dr. Clayton noted that Corder said he would reoffend if the circumstances were "right" and trigger events were present. Dr. Clayton also testified that "unfortunately, he's going to be getting out of TDC without . . . any real resources. And I think that could send him spiraling down very quickly. The drinking . . . may be a source of something that he uses to numb his feelings; and then once that starts, then I think he'll be out of control with his pedophilia." Dr. Clayton testified that Corder has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence, and he will have difficulty controlling his sexual behavior.

Corder's Issues

In two issues, Corder challenges the legal and factual sufficiency of the evidence that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. We address issues one and two together. The SVP statute requires the State to prove beyond a reasonable doubt that Corder is a sexually violent predator. Id. § 841.062. Therefore, we apply the standard of review used in criminal cases for legal sufficiency of the evidence. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.--Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In addressing legal sufficiency issues, we review all of the evidence in the light most favorable to the verdict to determine whether a rational jury could have found beyond a reasonable doubt that Corder suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id; Tex. Health & Safety Code Ann. §841.003. We also apply the factual sufficiency standard used in criminal cases. When addressing an issue of factual sufficiency, the appellate court asks whether "a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).

As part of his legal sufficiency argument, Corder contends that "[t]he State's expert's testimony was conclusory, unsubstantiated speculation." Citing Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004), and General Motors Corp. v. Iracheta, 161 S.W.3d 462, 470-71 (Tex. 2005), Corder asserts he was not required to object to expert testimony he asserts was speculative or conclusory, and he requests that we reconsider our holding to the contrary. See In re Commitment of Hall, No. 09-05-482-CV, 2006 WL 1682194 (Tex. App.--Beaumont June 15, 2006, no pet.)(mem. op.). When the complaint concerns the foundational data used or relied upon by an expert, a party must present a timely objection to the trial court to preserve any complaint for appeal. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; In re Hall, 2006 WL 1682194 at *5; In re Commitment of Barbee, 192 S.W.3d 835, 843 (Tex. App.--Beaumont 2006, no pet.). We considered this argument in Hall, and we decline Corder's invitation to overrule Hall. See In re Hall, 2006 WL 1682194, at *5.

As discussed above, Dr. Clayton testified that she diagnosed Corder as suffering from pedophilia, antisocial personality disorder, and alcohol abuse and she explained the basis for each diagnosis. Dr. Clayton also opined that Corder will have difficulty controlling his sexual behavior, and she testified that Corder stated he would reoffend if the circumstances were right and trigger events were present. Dr. Clayton testified that Corder has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence, he will have difficulty controlling his sexual behavior, and he is likely to reoffend. She identified Corder's alcohol abuse, his long history of sexual offenses against children, the fact that he continued to offend even after being incarcerated, and Corder's fantasies about his young victims as risk factors for reoffending.

The trial court was free to believe or disbelieve Dr. Clayton's expert testimony, and the court chose to believe it. Having carefully reviewed the record in the light most favorable to the trial court's judgment, we find the evidence is legally sufficient. We also find the evidence is factually sufficient under the relevant standards of review. Having carefully reviewed all of the evidence in a neutral light, we find the evidence supporting the verdict is not too weak, nor is the contrary evidence so strong that the burden of proof could not be met. The trial court was rationally justified in finding that Corder suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. We overrule issues one and two and affirm the judgment of the trial court.

AFFIRMED.

_________________________________ CHARLES KREGER

Justice

Submitted on October 19, 2006

Opinion Delivered December 21, 2006

Before Gaultney, Kreger, and Horton, JJ.