in Re Commitment of Gary Lee Cardenas ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00484-CV
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IN RE COMMITMENT OF GARY LEE CARDENAS
_________________________________ ______________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-12-13067 CV
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MEMORANDUM OPINION
The State of Texas filed a petition to commit Gary Lee Cardenas as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2013). A jury found that Cardenas is a sexually violent
predator and the trial court rendered a final judgment and an order of civil
commitment. In four appellate issues, Cardenas challenges: (1) the denial of his
request to have an attorney present during the State’s post-petition expert
examination; (2) the admission of certain evidence; and (3) the legal and factual
sufficiency of the evidence to support the jury’s verdict. We affirm the trial court’s
judgment and order of civil commitment.
1
Sufficiency of the Evidence
In issues three and four, Cardenas contends that the evidence is legally and
factually insufficient to support a finding that he is a sexually violent predator.
Under legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether any 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 factual sufficiency review, we weigh the
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.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont
2011, pet. denied).
In an SVP case, the State must prove, beyond a reasonable doubt, that a
person is a sexually violent predator. Tex. Health & Safety Code Ann. §
841.062(a) (West 2010). A person is a “sexually violent predator” if he is a repeat
sexually violent offender and suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. Id. § 841.003(a) (West
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Supp. 2013). 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). “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.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—
Beaumont 2003, pet. denied).
During trial, the jury heard Cardenas’s admissions to previous convictions
for sexual assault and attempted sexual assault, as well as numerous prison
disciplinary cases, including three cases for sexual misconduct. The jury also heard
evidence regarding Cardenas’s criminal history, including his sexual offenses and
prison disciplinary cases. Cardenas testified that he is now more mature and has
more knowledge and education to apply in the future. He testified that he has
completed substance abuse treatment and is participating in sex offender treatment.
Cardenas admitted that he is a recovering drug addict and a sex offender, but he
gave inconsistent opinions as to whether he needs sex offender treatment. He
explained that he does not want to waste his opportunity in the free world.
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Dr. Stephen Thorne, a psychologist, and Dr. Sheri Gaines, a medical doctor
specializing in psychiatry, both concluded that Cardenas suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Thorne and Gaines diagnosed Cardenas with antisocial personality disorder, which
Thorne explained is a condition that has affected Cardenas’s emotional and
volitional capacity. Gaines also diagnosed Cardenas with paraphilia not otherwise
specified and polysubstance dependence in remission in a controlled environment.
Thorne performed the Hare Psychopathy Checklist on which Cardenas scored a
twenty-six, meaning that he has more psychopathic traits than the average person.
Thorne testified that Cardenas scored a five on the Static-99R, which places
Cardenas in the moderate to high range of sexual re-offense. Thorne and Gaines
identified the following factors that increase Cardenas’s risk of reoffending: sexual
deviancy, extra-familial victim, stranger victim, sexual misconduct while
incarcerated, use of force, substance abuse, offenses in a public setting, antisocial
behavior, criminal offenses and behavior, offenses while under supervision,
persistence after punishment, failure to successfully complete sex offender
treatment, relationship history, victim blame, unstable lifestyle, and poor
institutional adjustment.
4
Dr. Marisa Mauro, a psychologist, testified for the defense. It was her
opinion that Cardenas does not have a behavioral abnormality. Mauro diagnosed
Cardenas with antisocial personality disorder and cannabis use disorder. She
conducted the Hare Psychopathy Checklist, on which Cardenas scored twenty-
seven, placing him in the range of “mixed psychopathic features.” Mauro
performed the Static-99R actuarial test on which Cardenas scored a five, a
moderate to high risk of re-offense. She testified that Cardenas scored a six on the
Static-2002R, i.e., the moderate range of re-offense. She identified the following
risk factors: substance abuse, antisocial personality disorder, and factors
encompassed by the actuarial tests. Mauro also identified protective factors: no
male victims, no child victims, successful relationships, age, gang renouncement,
sobriety, and participation in sex offender treatment. She admitted that a
personality disorder is a congenital or acquired condition that can affect a person’s
emotional or volitional capacity and Cardenas’s antisocial personality disorder
could have played a role in his sexual offending. However, Mauro did not believe
that Cardenas has serious difficulty controlling his behavior or has a condition that
affects his emotional or volitional capacity.
On appeal, Cardenas contends that Thorne and Gaines relied on incorrect
legal standards. Thorne testified that sexual deviancy and antisocial behavior, such
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as rule violations, criminal activity, and inability to control behavior, are primary
considerations and that Cardenas’s criminal and disciplinary history shows that his
volitional capacity has been affected. Gaines testified that it is significant when a
person is receiving sex offender treatment and is under supervision, yet reoffends,
as this shows a lack of emotional or volitional control. Cardenas contends that this
testimony improperly suggests that all repeat sex offenders have serious inability
controlling their behavior.
Whether a person suffers from an emotional or volitional defect so grave as
to cause behavior that makes him a menace is included in the determination of
whether he has serious difficulty in controlling behavior. Almaguer, 117 S.W.3d at
505-06. The jury could infer serious difficulty controlling behavior not only from
the expert testimony, but also from Cardenas’s past behavior and testimony. See In
re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at
*13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); see also In re
Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at
*20 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem. op.). Accordingly, we
cannot say that the evidence is insufficient as a result of the experts’ testimony
regarding volitional capacity.
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Additionally, Cardenas complains of the experts’ definitions of the word
“likely.” Thorne defined “likely” to mean “[p]robable.” Gaines defined “likely” as
“inclined to, tending to, likely to.” The term “likely” does not have a “precise
definition of the type associated with any certain assigned percentage of risk.” In
re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—Beaumont 2012, pet.
denied). An expert’s testimony is not insufficient merely because the term “likely”
is not defined by the statute or case law. In re Commitment of Kirsch, No. 09-08-
00004-CV, 2009 Tex. App. LEXIS 5436, at *17 (Tex. App.—Beaumont July 16,
2009, pet. denied) (mem. op.). Nor does an expert’s explanation of the term
“likely,” alone, render the evidence insufficient to support the jury’s finding that a
person suffers from a behavioral abnormality. Id. at *19. Thorne’s and Gaines’s
definitions of “likely” merely go to the weight that the jury might give their
testimony. See id.
As sole judge of the weight and credibility of the evidence, the jury could
reasonably conclude that Cardenas suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. See In re
Commitment of Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681, at
**6-7 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see also
Mullens, 92 S.W.3d at 887; Almaguer, 117 S.W.3d at 505-506; Burnett, 2009 Tex.
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App. LEXIS 9930, at *13; Grinstead, 2009 Tex. App. LEXIS 228, at *16. That
Cardenas has serious difficulty controlling his behavior and is likely to commit
predatory acts of sexual violence directed toward individuals for the primary
purpose of victimization are implicit in this finding. See In re Commitment of
Bailey, No. 09-09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex.
App.—Beaumont Aug. 19, 2010, no pet.) (mem. op.); see also Grinstead, 2009
Tex. App. LEXIS 228, at *16. Viewing the evidence in the light most favorable to
the verdict, a rational jury could have found, beyond a reasonable doubt, that
Cardenas is a sexually violent predator; thus, the evidence is legally sufficient. See
Tex. Health & Safety Code Ann. § 841.062(a); see also Kansas v. Crane, 534 U.S.
407, 413 (2002); Mullens, 92 S.W.3d at 885. Weighing all of the evidence, the
verdict does not reflect a risk of injustice that would compel ordering a new trial.
See Day, 342 S.W.3d at 213. We overrule issues three and four.
Right to Counsel
In issue one, Cardenas complains of the denial of his request to have an
attorney present at the pre-trial expert examination. We have held that neither the
SVP statute nor the Fourteenth Amendment requires that counsel be present during
a psychiatrist’s post-petition examination. See In re Commitment of Smith, 422
S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet. denied). Cardenas argues that
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Smith was based solely on a concession by Smith that the SVP statute defines a
civil commitment proceeding as a “trial or hearing” and does not appear to
encompass a pre-trial psychiatric examination. See id. at 806. In Smith, we merely
noted that Smith made this concession and we did not base our holding on that
concession alone. Id. at 804-07. Additionally, we have upheld our ruling in other
cases. See In re Commitment of Speed, No. 09-13-00488-CV, 2014 Tex. App.
LEXIS 4444, at *2 (Tex. App.—Beaumont Apr. 24, 2014, pet. filed) (mem. op.);
see also In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 Tex. App.
LEXIS 3888, at **1-2 (Tex. App.—Beaumont Apr. 10, 2014, no pet. h.) (mem.
op.). We decline to revisit our ruling in Smith and, for the reasons discussed in
Smith, we overrule Cardenas’s first issue.
Admission of Evidence
In issue two, Cardenas challenges the admission of evidence regarding the
details of his sexually violent offenses. “We review a trial court’s evidentiary
rulings for abuse of discretion.” Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 906 (Tex. 2000); see In re Commitment of Salazar, No. 09-07-345
CV, 2008 Tex. App. LEXIS 8856, at *19 (Tex. App.—Beaumont Nov. 26, 2008,
pet. denied) (mem. op.). We will not reverse unless the error probably caused the
rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1).
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“[A]n expert may disclose on direct examination, or be required to disclose
on cross-examination, the underlying facts or data on which he bases his opinion.”
In re Commitment of Jackson, No. 09-12-00291-CV, 2013 Tex. App. LEXIS
13507, at *9 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op); see Day,
342 S.W.3d at 197-98. The trial court “shall exclude the underlying facts or data if
the danger that they will be used for a purpose other than as explanation or support
for the expert’s opinion outweighs their value as explanation or support or are
unfairly prejudicial.” Tex. R. Evid. 705(d). “If otherwise inadmissible facts or data
are disclosed before the jury, a limiting instruction by the court shall be given upon
request.” Id. Even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.
Cardenas did not object to the trial court’s limiting instructions given during
trial, request a different or additional instruction, or object to the limiting
instruction contained in the jury charge. We presume the jury followed the trial
court’s limiting instructions. See Day, 342 S.W.3d at 199. Additionally, Cardenas
himself testified to the details of his sexual offenses. The trial court could
reasonably conclude that the facts and details related to Cardenas’s underlying
offenses would be helpful to the jury to explain how Thorne and Gaines formed
their opinions that Cardenas suffers from a behavioral abnormality. Given the
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purpose for admitting this evidence, its cumulative nature, and the trial court’s
limiting instructions, the trial court’s conclusion that the evidence was not unfairly
prejudicial was reasonable. See Jackson, 2013 Tex. App. LEXIS 13507, at *10; see
also In re Commitment of King, No. 09-13-00255-CV, 2014 Tex. App. LEXIS 724,
at **7-8; (Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.); Day, 342
S.W.3d at 199. The admission of Thorne’s and Gaines’s testimony was not an
abuse of discretion and did not cause the rendition of an improper judgment. See
Tex. R. App. P. 44.1(a)(1). We overrule issue two and affirm the trial court’s
judgment and order of civil commitment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on May 22, 2014
Opinion Delivered June 12, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
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