In Re: The Commitment of Jack Allen Hale, Jr. v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00373-CV
___________________________
IN RE: THE COMMITMENT OF JACK ALLEN HALE, JR.
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. CDC1-S-14719-20
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Jack Allen Hale Jr. appeals from a judgment of civil commitment. In his first
and second issues, Hale claims that the trial court erroneously allowed the State’s
expert, Dr. Christine Reed, to testify. In his third and fourth issues, he complains that
the trial court erred in excluding evidence related to his current parole. We hold that
none of these issues present reversible error, and we affirm the judgment of the trial
court.
I. BACKGROUND
In 1991, Hale pled guilty to indecency with a child and received a fifteen-year
prison sentence. After serving six years, he was released on mandatory supervision.1
He violated conditions of his mandatory supervision by possessing pornography and
by getting involved with a woman who had a 12-year-old son.2 He also began a
relationship with G.S., who had four children including then-12-year-old A.S. After
Under the statute in effect at the time Hale committed his 1991 offense, an
1
eligible prisoner was automatically released when the actual time served plus accrued
good conduct time added up to the maximum term to which he was sentenced. Act of
May 23, 1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750,
3754 (repealed 1997); Ex parte Geiken, 28 S.W.3d 553, 555 (Tex. Crim. App. 2000).
Dr. Reed testified that Hale was not allowed “to be around individuals under
2
the age of 17” or “to be in a relationship with a woman that had children under the
age of 17 because that would be a vulnerable victim.” Hale testified that he could not
have contact with children or become involved in a relationship with a woman who
had children under 17 “without prior written permission” from his parole officer.
Whichever the case, it was undisputed at trial that Hale committed violations and was
sent back to prison in 1998.
2
being sent back to prison, Hale continued communicating with G.S. and A.S. G.S. and
A.S. visited him in prison, and their family and Hale wrote letters back and forth
during this time as well.
In 2002, Hale was again released from prison on mandatory supervision and
moved into a halfway house. He continued to communicate with the family, including
having daily phone conversations with A.S. He then moved back to the area where
A.S. and her family lived. His communications with A.S. became increasingly sexual,
and after she turned 16, they had sex in his car. G.S. later found nude photographs of
Hale in A.S.’s dresser and reported Hale to the local sheriff’s department, who then
arrested him. Hale had also been keeping nude photographs of A.S. in his trailer. He
returned to prison but still faced charges of sexual performance by a child, possession
of child pornography, and sexual assault of a child under 17. In 2003, he pled guilty to
one count of sexual performance by a child and one count of sexual assault of a child
under 17 and was sentenced to 28 more years in prison.
On June 30, 2020, a parole panel recommended that Hale be released on parole
pending his completion of a sex-offender treatment program. Hale completed that
program, but on December 14, 2020, the State filed a petition to civilly commit him as
a sexually violent predator (SVP). The State alleged that Hale was a repeat sexually
violent offender and, based on an expert’s clinical assessment in accordance with
Section 841.023(a) of the Texas Health and Safety Code, suffered from a behavioral
3
abnormality that made him likely to engage in a predatory act of sexual violence.3 See
Tex. Health & Safety Code Ann. §§ 841.003, 841.023(a).
While Hale was still in prison, Dr. Reed interviewed him. Hale later deposed
Dr. Reed and, after the deposition, filed a motion to exclude her testimony. The trial
court denied his motion and allowed Dr. Reed to testify at trial. Hale was the only
other witness who testified at his trial.
The jury found beyond a reasonable doubt that Hale is a sexually violent
predator. The trial court ordered Hale committed until he is no longer likely to engage
in predatory acts. This appeal followed.
II. EVIDENCE AT TRIAL
Dr. Reed first testified at a hearing outside the jury’s presence,4 and the trial
court ruled her testimony admissible. In front of the jury, Dr. Reed explained how she
3
To civilly commit a person, the State must show that “the person: (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.” See Tex.
Health & Safety Code Ann. §§ 841.003(a), .062(a). A person is a “repeat sexually
violent offender” for the purposes of the SVP statute if the person is convicted of
more than one sexually violent offense and a sentence is imposed for at least one of
the offenses. Id. § 841.003(b). 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).
We will refer to this hearing as the Daubert/Kelly hearing. See Daubert v. Merrell
4
Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993); Kelly v. State, 824 S.W.2d
568 (Tex. Crim. App. 1992).
4
evaluated Hale and the methodology she used. She testified that she used several
measures—including the Hare Psychopathy Checklist, the Static-99, and the Risk for
Sexual Violence Protocol (RSVP)—to aid in her evaluation.5 She said that, in general,
“the two major risk factors and most significant risk factors we see in these
evaluations are sexual deviance and an antisocial orientation.” She gave detailed
testimony about his criminal, relationship, treatment, employment, and sexual history.
Dr. Reed diagnosed Hale with unspecified paraphilic disorder and antisocial
personality disorder. She explained that “unspecified paraphilic disorder” meant that
Hale exhibited “some sort of sexual disorder” that “doesn’t fit neatly into one of the
other categories,” and “an antisocial personality disorder is a longstanding pattern of
violation of the rights of others and violation of social norms.”
Dr. Reed opined that Hale has a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence. When asked how she would
characterize what “makes up” Hale’s behavioral abnormality, she testified:
It’s the -- the combination of the sexual deviance, the proclivity to
engage in these sexual behaviors that are illegal, that are problematic,
that -- to be preoccupied with sexual activities, the combination of that,
along with the psychopathic personality, and the willingness to
manipulate others, to use others, to engage in illegal acts, to violate the
rights of others. The combination of those things, I think is what makes
him have a behavioral abnormality.
5
We will explain these measures in detail in our discussion of Hale’s first issue.
5
During his cross-examination of Dr. Reed, Hale asked the trial court for
permission to question Dr. Reed about Hale’s completing sex-offender treatment and
“the fact that he cannot go on parole unless he completed the treatment,” as well as
other matters related to his current parole. The State objected on relevancy grounds to
discussion about Hale’s parole conditions “and how he might do” on parole. The trial
court sustained the State’s objection but permitted Hale to ask Dr. Reed about Hale
completing the Sex Offender Treatment Program in connection with whether he
suffers from a behavioral abnormality. Hale made an offer of proof with Dr. Reed
outside the presence of the jury.
After Dr. Reed testified, the State called Hale as a witness. Hale also testified
about his criminal, relationship, treatment, employment, and sexual history. He
admitted to offending against A.S. and his first victim, N.D., although he maintained
that he had not had any type of sexual contact with N.D. Even though he had been
charged with and pled guilty to indecency with a child for fondling N.D.’s genitals, he
testified that he had only exposed his penis to her and masturbated until he ejaculated.
He admitted to the violations of his mandatory supervision in 1998: possession of
pornography and having a relationship with a woman who had a 12-year-old son
without prior written permission from his parole officer. Hale also admitted to the
2002 violation of his parole involving the nude pictures A.S. had of him. He testified
that it was never his intention to exploit either N.D. or A.S.
6
Hale testified that he had completed a seventeen-month-long sex-offender-
treatment program in the 1990s during his first stint in prison and, more recently, a
nine-month-long sex-offender-treatment program that he finished just months before
his trial. He believed that the second program was better than the first and that he
could safely be around children. In addition to these two programs, Hale had also
attended sex-offender treatment during both periods of his mandatory supervision.
Hale testified that he did not believe he still needed sex-offender treatment.
Prison records from Hale’s sexually violent offenses against N.D. and A.S. were
admitted in evidence without objection, as was a worksheet Hale had completed as
part of his most recent sex-offender-treatment program. The worksheet contained
various questions and Hale’s answers about the circumstances surrounding his offense
against A.S., the offense itself, and the aftermath. Hale’s only exhibit, offered and
admitted for the record only, was paperwork from the Texas Board of Pardons and
Paroles indicating the parole panel’s decision to conditionally grant Hale parole and
the special conditions that would be imposed on him. The jury found beyond a
reasonable doubt that Hale is a sexually violent predator, and the trial court ordered
him civilly committed in accordance with Section 841.081 of the Texas Health and
Safety Code for treatment and supervision. See Tex. Health & Safety Code Ann.
§ 841.081(a).
7
III. ADMISSION OF DR. REED’S TESTIMONY
In his first issue, Hale claims that Dr. Reed’s opinion testimony should have
been excluded because the State failed to carry its burden to show that the testimony
was scientifically reliable. Hale argues that Reed’s expert-opinion testimony was
unreliable based on the United States Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), the Texas Supreme
Court’s decision in E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d
549 (Tex. 1995), and the Texas Court of Criminal Appeals’ decision in Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992).
A. Hale Has Preserved this Issue for Our Review.
The State argues that Hale’s first issue should be overruled because it was not
properly preserved. To preserve a complaint for our review, the complaint on appeal
must match that presented in the trial court. In re J.C., 594 S.W.3d 466, 473 (Tex.
App.—Fort Worth 2019, no pet.); see Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.
1997). The State points out that Hale argues that Dr. Reed’s opinion is not reliable,
but in the trial court, Hale argued that she was not qualified. Hale did argue in the trial
court that she was not qualified, but that is not all that he argued. In his “Motion to
Exclude Testimony of Dr. Christine Reed,” Hale made multiple arguments, including
that “any testimony Dr. Reed might provide is unreliable.” At the time of the civil-
commitment trial, the trial court referred to “the motion that was filed back on July
7th of 2021” and said “we’ll deny that motion as it was filed.” [Emphasis added.]
8
The State’s contention that “[t]he trial court understood Hale’s argument to be
that Dr. Reed was not qualified” is further belied by the record of the Daubert/Kelly
hearing, at which the State itself said that it was “clear from [Dr. Reed’s] testimony
this morning that . . . the issue is not qualifications, but it goes to the weight of her
testimony, not whether she’s qualified to testify.” The trial court responded, “Well,
and ultimately . . . that may be the issue.” Finally, at the conclusion of the hearing, the
trial court found “that Dr. Reed is a qualified expert, that her testimony could be
relevant and reliable,” and “that her testimony and her opinion will be admissible.”
This is the ruling of which Hale complains on appeal. The State’s waiver argument has
no merit.
B. The State Met Its Burden at Trial to Show that Dr. Reed’s Opinion
Testimony was Scientifically Reliable.
We review a trial court’s rulings in admitting evidence for an abuse of
discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020). An appellate court must
uphold the trial court’s evidentiary ruling if the record shows any legitimate basis for
the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial
court abuses its discretion if it acts without reference to any guiding rules or
principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate
court cannot conclude that a trial court abused its discretion merely because the
9
appellate court would have ruled differently in the same circumstances. Robinson,
923 S.W.2d at 558; see also Low, 221 S.W.3d at 620.
Rule 702 allows expert testimony when the witness is “qualified as an expert by
knowledge, skill, experience, training, or education,” and the witness’s “scientific,
technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” Tex. R. Evid. 702. A trial court’s discretion
in determining whether an expert is qualified to testify on a matter is broad but not
unbounded. In re Commitment of Bohannan, 388 S.W.3d 296, 307 (Tex. 2012). In Daubert,
the United States Supreme Court held that the requirement that an expert’s testimony
pertain to “scientific knowledge” establishes a standard of evidentiary reliability.
509 U.S. at 590, 113 S. Ct. at 2795. The Court clarified that, in a case involving
scientific evidence, “evidentiary reliability will be based upon scientific validity.” Id. at
n.9 (emphasis in original).
To be considered reliable, evidence derived from a scientific theory must satisfy
three criteria in any particular case: (a) the underlying scientific theory must be valid;
(b) the technique applying the theory must be valid; and (c) the technique must have
been properly applied on the occasion in question. Kelly, 824 S.W.2d at
573. Determining whether an expert’s theory or technique is reliable requires
consideration of all pertinent factors, including
(1) the extent to which the theory has been or can be tested;
10
(2) the extent to which the technique relies upon the subjective
interpretation of the expert;
(3) whether the theory has been subjected to peer review and/or
publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been generally
accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or
technique.
Bohannan, 388 S.W.3d at 305. These are the same factors the Texas Supreme Court
listed in Robinson. 923 S.W.2d at 557. The Robinson Court further acknowledged that
the factors a trial court will find helpful in determining whether the underlying
theories and techniques of the proffered evidence are scientifically reliable “will differ
with each particular case.” Id. Thus, regardless of what factors are applied, the
proponent of the expert testimony must prove that it is based upon a reliable
foundation. Gross v. Burt, 149 S.W.3d 213, 238 (Tex. App.—Fort Worth 2004, pet.
denied).
We have also recognized that “the criteria for assessing reliability will vary
depending on the type of expert and the nature of the evidence.” Marvelli v. Alston,
100 S.W.3d 460, 479 (Tex. App.—Fort Worth 2003, pet. denied). When faced with
“non-scientific evidence” like Dr. Reed’s testimony,6 courts must analyze the
6
In In re D.S., we explained that the difference between “scientific” and “non-
scientific” evidence “is that the former is based on the application of scientific
11
underlying data forming the basis for the expert’s opinion. D.S., 19 S.W.3d at 529. If
the foundational data underlying an expert’s opinion testimony are unreliable, then
any opinion drawn from that data is likewise unreliable. Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 714 (Tex. 1997). “Further, an expert’s testimony is unreliable
even when the underlying data are sound if the expert draws conclusions from that
data based on flawed methodology.” Id.Hale complains that Dr. Reed provided no scientific support for her claim that
he is “sexually deviant” or for her claim that this is one of the “biggest” or is a
“major” risk factor for reoffending. He likens Dr. Reed’s testimony in this case to Dr.
Richard Coons’s expert testimony in Coble v. State, a death-penalty case in which the
Court of Criminal Appeals concluded that the trial judge abused his discretion in
admitting Dr. Coons’s testimony concerning future dangerousness because the
prosecution (the proponent of Dr. Coons’s testimony) did not satisfy its burden of
showing the scientific reliability of Dr. Coons’s methodology for predicting future
dangerousness. 330 S.W.3d 253, 279–80 (Tex. Crim. App. 2010). The State
distinguishes Coble from Hale’s case by pointing out that in Coble Dr. Coons admitted
that his methodology was “idiosyncratic” and was one of his own creation. Id. at 277.
principles [that] can be readily tested by [the Daubert/Kelly] factors, while the latter is
based on skill or on experience based on observation.” 19 S.W.3d 525, 529 (Tex.
App.—Fort Worth 2000, no pet.).
12
We interpret Hale’s first point of error as arguing that both the underlying data
and methodology on which Dr. Reed based her expert opinion are unreliable.
Applying the standards from Daubert, Kelly, Robinson, and their progeny, we see little
merit to his argument about the data. In her deposition,7 Dr. Reed explained her
evaluation of Hale. She testified that she used the PCL-R, the Static-99, and the RSVP
to come up with her opinion.8 She said that all these instruments have been
researched and peer-reviewed, as have the guidelines on how to use and interpret
them. She explained that the PCL-R is the “Harris [sic] Psychopathy checklist,” and
its purpose is “[t]o get a measure of psychopathy or psychopathic traits.” Hale’s
counsel himself acknowledged during the deposition that the Static-99 was “a piece of
peer-reviewed documentation -- that has been a gold standard in psychology for a
very long time -- that is scored, and scored properly.” Dr. Reed also explained the
RSVP:
It appears that the full record of Dr. Reed’s deposition, including exhibits, was
7
filed with the trial court clerk on August 13, 2021, more than two weeks before the
trial commenced. The State had previously filed a response to Hale’s motion, with
excerpts of Dr. Reed’s deposition attached, on July 14, 2021. At the pretrial hearing
on August 16, 2021, the trial court and both parties referenced the deposition—and
Hale’s counsel even said, “We have a copy of it here for the Court in case you’d like
it.” Because there is nothing in the record to indicate that the trial court read or
considered the entire deposition, and because our analysis of Hale’s first issue does
not hinge on anything from Dr. Reed’s deposition that was not included in the State’s
response, we will not consider Dr. Reed’s deposition testimony beyond what was
attached to the State’s response to Hale’s motion in our review of the trial court’s
ruling on Hale’s motion.
Dr. Reed also testified to these facts at the Daubert/Kelly hearing.
8
13
The RSVP is the Risk for Sexual Violence Protocol. It’s just a set of
professional guidelines used to assist or assess for risk of sexual
offending. It’s 22 risk factors, in different categories.
It’s just a way of helping take into consideration some of the risk
factors that aren’t captured by the Static-99 or other actuarial measures.
At the Daubert/Kelly hearing, Dr. Reed testified that the updated norms for the
Static-99 have been peer-reviewed and published. She explained how percentiles are
generated by the Static-99, what those percentiles mean, and that they are based on
data points. She testified that “you measure the Static-99” using “certain risk factors”
but that “not all risk factors are taken into account by the Static-99.” She also testified
that there had been “statistical analyses on various risk factors,” but she did not know
“those numbers” offhand. However, she testified in greater detail about the Static-
99 and how Hale’s risk factors figured into her expert opinion:
So the Static-99 only has a certain number of risk factors that are
included. Not every risk factor that a person could have can be included.
So the Static-99 is just a snapshot of where he falls compared to other
sex offenders on that measure that includes those particular risk factors.
....
. . . . If there were other risk factors that are not listed or not items
on the Static-99, they would not be included in my calculation of the
Static-99. I don’t alter the score. I don’t change the score. I don’t -- and
it’s recommended that you do not alter or change the score. It’s just the
scoring of those risk factors that are included on that measure for that
individual.
There may be other risk factors that are not included on that
measure, and they would be accounted for elsewhere. In my opinion, on
the RSVP and a variety of other places. But they would not be included
on the Static-99.
14
When asked if sexual deviance was a listed factor on the Static-99, Dr. Reed
testified that the word “sexual deviance” is not an item, “but items that go to sexual
deviance are.” The trial court was well within its discretion to find that the sum total
of this data provided a reliable basis for Dr. Reed’s expert opinion.9
9
Although Hale complains on appeal that Dr. Reed provided “no scientific
support for her claim” that he is sexually deviant, it appears that at trial he challenged
only her characterization of his offenses against A.S. as sexually deviant. He did not
dispute that his first offense, committed against an eight-year-old child, was a
“sexually deviant” act. Dr. Reed testified at the Daubert/Kelly hearing that she said
Hale was sexually deviant based on more than just his offenses against A.S. She
testified that whether an individual’s sexual behavior goes outside of social norms is
“part of” her determination as to sexual deviance. She explained that “sexually deviant
behavior just means behavior of a sexual matter or a sexual matter that deviates
significantly from the normal behavior.” She gave “having sex . . . or having sexual
contact with an eight-year-old or with an animal or a dead person” as examples of
“sexually deviant acts.” She also explained why Hale’s actions with A.S. were sexually
deviant:
Again, she’s underage. That’s considered illegal. It was deviant in that he
had this relationship with her. He’s admitted to grooming her from the
ages of 12 to 16. That’s what makes that act sexually deviant.
....
. . . . He discussed in his treatment notes grooming her -- giving
her presents, giving her gifts, writing letters, things like that.
....
. . . . There are numerous studies that involve the development of
the adolescent brain, of the decision making of adolescents, that all
speaks to what [Hale was] getting at and whether it’s appropriate for an
adult to have sex with somebody of that age, whether or not they can
consent. I could not find a specific article that said it is sexually deviant
for an adult to have sex with a 16-year-old, but there are numerous
15
Dr. Reed’s testimony at her deposition and at the Daubert/Kelly hearing
provides less support, though, for the trial court’s implicit finding that her
methodology was reliable. Although Dr. Reed testified in her deposition that she
conducts her interviews “based on techniques that are commonly used and approved
by the people that do those evaluations” in her profession and at the Daubert/Kelly
hearing that her clinical assessment of Hale was “standard practice for these
evaluations” in the United States, “this is simply the ipse dixit of the witness.” 10 Coble,
publications that I’ve come across over the course of my education and
my experience that talk about the decision-making abilities, the
judgment, and why it’s inappropriate. And the fact that it is illegal is
because the legislature agreed that that was sexually deviant, that that
was inappropriate.
Thus, Dr. Reed provided sufficient support for her claim that Hale was sexually
deviant.
10
We understand that a challenged expert witness’s testimony is often the only
evidence adduced at a Daubert/Kelly hearing to prove up the relevance and reliability of
the expert’s opinion. Such was the case here, and we do not mean to suggest that
adherence to the principle that “it is not so simply because ‘an expert says it is so,’”
Havner, 953 S.W.2d 706, 712 (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th
Cir. 1987)), means that the prerequisites for admissibility of an expert opinion under
Rule 702 cannot be established through the expert’s testimony alone. What the rule
requires is for the proponent of an expert’s testimony to show a connection between
the foundational, underlying data; the methodology used by the expert; and the
expert’s conclusions. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010)
(“Reliability may be demonstrated by the connection of the expert’s theory to the
underlying facts and data in the case.”); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.
1999) (“An expert’s simple ipse dixit is insufficient to establish a matter; rather, the
expert must explain the basis of his statements to link his conclusions to the facts.”).
Expert testimony is unreliable “if there is too great an analytical gap between the data
on which the expert relies and the opinion offered.” Gharda USA, Inc. v. Control Sols.,
Inc., 464 S.W.3d 338, 349 (Tex. 2015) (quoting Volkswagen of Am., Inc. v. Ramirez,
16
330 S.W.3d at 277. An expert’s bald assurance that her methodology was generally
accepted and reasonably relied upon by other experts in the field is not sufficient to
establish the reliability of the technique and theory underlying her opinion. Robinson,
923 S.W.2d at 559.
In determining whether a trial court abused its discretion, we generally consider
only the evidence before the trial court when it made its ruling. La. C Store Wholesaler,
Inc. v. Royal Nett Apparel, LLC, No. 02-17-00331-CV, 2018 WL 3059966, at
*4 n.5 (Tex. App.—Fort Worth June 21, 2018, no pet.) (mem. op.). However, we also
must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. Malone, 972 S.W.2d at 43. Here, the State elicited critical testimony from Dr.
Reed after the trial court ruled her expert opinion and testimony admissible but
before she offered her expert opinion to the jury. Dr. Reed testified that forensic
psychology “has to do with the intersection of the law and in psychology.” She then
explained how she applied forensic psychology to this case:
So what we do in forensic psychology is we take a legal issue, a legal
question, in other words, a question by the court or a question posed by
the legislature or the judge and try to apply the psychological principles
that we’ve learned as psychologists to answering that question. So in this
case the question is, [“]Does Mr. Hale have a behavioral abnormality?[”]
So I’m going to use what I understand about psychology and research in
that particular field in psychology to try to answer that question.
159 S.W.3d 897, 904–05 (Tex. 2004)).
17
She explained in greater detail how she conducts a behavioral-abnormality
evaluation, and she described how she learned her methodology during her Ph.D.
program, her forensic fellowship, and her professional career. She testified that she
utilized this methodology when she evaluated Hale and that it is the same
methodology used by other evaluators who do these evaluations. She added that she
followed the methodology because there was “no one test” to determine whether
Hale had a behavioral abnormality, so she had to “put all of these little pieces of
information together to come up with that answer.”
Dr. Reed also detailed the different types of records she reviewed in this case
and testified that those records are the same type of records that are typically reviewed
and relied upon by experts in her field. She also explained why she relied on the facts
and data contained in the records in forming the basis of her opinion:
Again, the more pieces -- like we said, there’s not a convenient one test
where I can plug in some information and get an answer. It’s about
having to take as many data points and pieces of information as I can. So
when I have all these records, that’s just even more data points, more
information to help me understand this person, to help me assess them
on the measures that I use.
In addition, you know, some of these offenses are for individuals
maybe ten, 20 years, 30 years ago. And so a lot of times reviewing the
original records is easier than kind of the pass-down records. In other
words, what they’re saying about it now may change versus what was
going on back then, just because the nature of memory for one thing
changes.
Finally, Dr. Reed testified that she evaluated Hale in accordance with her
training as a psychologist and with the accepted standards in the field of forensic
18
psychology. This testimony from Dr. Reed distinguishes her methodology and
opinion testimony from that of Dr. Coons in Coble:
Dr. Coons forthrightly stated that “he does it his way” with his own
methodology and has never gone back to see whether his prior
predictions of future dangerousness have, in fact, been accurate.
Although he had interviewed appellant before the first trial in 1990, Dr.
Coons had lost his notes of that interview in a flood and apparently had
no independent memory of that interview. He relied entirely upon the
documentary materials given to him by the prosecution, including his
1989 report. Dr. Coons, therefore, did not perform any psychiatric
assessment of appellant after his eighteen years of nonviolent behavior
on death row, nor did he refer to any psychological testing that might
have occurred in that time frame.
330 S.W.3d at 279. Unlike Dr. Coons, Dr. Reed based her expert testimony on
historical and current information, including an interview of Hale she conducted less
than five months before trial. She was able to testify in detail about what Hale said in
their interview and how that informed her opinion. We therefore reject Hale’s
appellate contention that “Reed’s testimony in this case should not have been
admitted as it is similar enough to the erroneously admitted expert testimony at issue
in Coble.”
A trial court does not abuse its discretion if it commits a mere error in
judgment. See Robinson, 923 S.W.2d at 558. While the State did not satisfy its burden of
showing the scientific reliability of Dr. Reed’s methodology at the Daubert/Kelly
hearing, we cannot say the trial court reversibly erred because the trial court’s ruling
was ultimately, albeit belatedly, supported by the record. See Malone, 972 S.W.2d at
43; In re Commitment of Pineda, No. 02-20-00200-CV, 2021 WL 3796118, at *2 (Tex.
19
App.—Fort Worth Aug. 26, 2021, no pet.) (mem. op.). Put another way, the State
ultimately established the reliability of Dr. Reed’s methodology and sealed up the
“analytical gap” between the data on which she relied and the opinion she offered. 11
We overrule Hale’s first issue.
C. The Trial Court Did Not Abuse Its Discretion in Denying Hale’s Motion
to Exclude Dr. Reed’s Testimony as a Sanction for Discovery Violations.
In his second issue, Hale claims that the trial court erroneously denied his
motion to exclude Dr. Reed’s opinion testimony under the Texas Rules of Civil
Procedure. On May 21, 2021, Hale served the State with his Notice of Intention to
Take Telephone Deposition of Christine H. Reed, Ph.D. with Subpoena Duces
Tecum. See Tex. R. Civ. P. 199.2(b). Pursuant to Texas Rules of Civil Procedure
195 and 199.2, Hale requested that Dr. Reed “produce and permit the inspection and
copying of” certain documents and tangible things, including:
10. Any and all documents and tangible things including, but
not limited to, all reports physical models, data, compilations of data,
charts, graphs, videotapes, photographs, models, motion pictures,
programs, and other material prepared or relied upon by [Dr. Reed] in
forming any basis of h[er] opinion(s) or mental impressions in
connection with this case.
....
As the Court of Criminal Appeals put it when reviewing a trial court’s ruling
11
on a motion to suppress (the equivalent in a criminal case of a motion to exclude), “it
would be unreasonable to ignore trial evidence in our review of the court’s
suppression decision only to be confronted by the evidence in our consideration of
whether the error was harmless.” Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.
1996).
20
13. A copy of any and all documents studied, reviewed or in
any way relied upon by the deponent before or during the deposition for
any portion of the opinions or the basis for the opinions to be expressed
by the deponent.
14. A bibliography of each and every article, literature or
textbook upon which [Dr. Reed] relied or to which [she] has referred in
forming any of the opinions expressed or to be expressed by [Dr. Reed]
regarding [Jack Hale Jr.], including without limitation, the title, the
author, publisher’s name, date of publication and journal.
15. A bibliography of each and every article, literature, treatise,
or textbook which [Dr. Reed] relied on or to which [she] has referred to
in forming her opinions regarding what risk factors for sexual recidivism
she has identified for [Jack Hale Jr.].
During the deposition on June 10, 2021, Dr. Reed expressed her “professional
opinion” that Hale’s sexual assault of A.S. was “sexually deviant.” When Hale’s
counsel asked Dr. Reed for “something that supports that position,” she responded,
“I don’t have the name of a specific article I can point you to right now.” After Hale’s
counsel stated that he “would appreciate that before trial,” counsel for the State
interceded and asked him to “narrow it down, some.” Hale’s counsel clarified that he
was “just asking her for . . . what she used to form her professional opinion, that is
peer-reviewed, and is used by her community.” Counsel for the State assured Hale’s
counsel that he would “talk to Dr. Reed” and “try, to the best of [their] ability, to
ascertain what it is [Hale was] asking for and respond to it.” The deposition concluded
without Dr. Reed or the State providing the requested information.
On July 7, 2021, Hale filed his motion to exclude Dr. Reed’s testimony,
alleging, “To date neither Petitioner nor Dr. Reed ha[s] provided the requested
21
information.” In addition to challenging the reliability of her opinion testimony, Hale
claimed that the State had violated Texas Rule of Civil Procedure 192.3(b) by failing
to provide requested discovery. See Tex. R. Civ. P. 192.3(b) (requiring a person to
produce a document or tangible thing that constitutes or contains matters relevant to
the subject matter of the action and that is within the person’s possession, custody, or
control). 12 Specifically, Hale asserted that he had requested the State provide
documentation in support of Dr. Reed’s position and that such documentation had
not been forthcoming. If information supporting Dr. Reed’s position existed, Hale
argued, then “a proper sanction for the failure to provide such information is that Dr.
Reed be prohibited from testifying.”
At trial, outside the presence of the jury, Dr. Reed acknowledged what was
requested of her in the subpoena duces tecum. She testified that, “if there was a
specific article that [she] used in this specific case,” then she would have made Hale
aware of that, but providing every book, treatise, manual, and article she had ever read
would be difficult, if not impossible. Hale now argues that the only “just” remedy for
12
We question Hale’s reliance on Rule 192.3(b) here. By its plain language,
Texas Rule of Civil Procedure 195 makes its permissible discovery tools the exclusive
means by which a party may obtain information concerning testifying experts. See Tex.
R. Civ. P. 195.1 (“A party may obtain information concerning testifying expert
witnesses only through disclosure under this rule and through depositions and reports
as permitted by this rule.” (emphasis added)). There is no question, however, that
Hale’s deposition and subpoena duces tecum were permissible methods of testifying-
expert discovery under the rules. See Tex. R. Civ. P. 195.3(a), 195.4, 199.2(b)(5).
22
Dr. Reed’s failure to comply with his discovery requests would have been the
exclusion of her testimony. We cannot agree.
Texas Rule of Civil Procedure 215.2(b) allows a trial court to sanction a party
for failure to comply with a discovery request. Tex. R. Civ. P. 215.2(b). A trial court
may strike the testimony of a noncompliant party’s expert witness. See Tex. R. Civ. P.
215.2(b)(4) (authorizing a trial court to make an order refusing to allow the
disobedient party to support designated claims or prohibiting the party from
introducing designated matters in evidence); State Farm Fire & Cas. Co. v. Rodriguez,
88 S.W.3d 313, 326–27 (Tex. App.—San Antonio 2002, pet. denied), abrogated on other
grounds by Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20 (Tex. 2008). We
review a trial court’s award or denial of sanctions for an abuse of discretion. Miller v.
Walker, 582 S.W.3d 300, 308 (Tex. App.—Fort Worth 2018, no pet.).
As the party seeking sanctions, Hale had the burden of establishing his right to
relief. GTE Communic’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). This
included the burden to prove the assertions in his motion. Id. Here, Hale did not
prove that Dr. Reed or the State failed to provide any additional documentation or
other information that was responsive to his requests.13 As we have already discussed,
13
We note that Hale has not argued that he was surprised by any of Dr. Reed’s
testimony at trial or pointed to a specific document or tangible thing that was
withheld from him and on which she relied in forming her opinions. Cf. Rodriguez,
88 S.W.3d at 323–27 (upholding trial court’s striking of defense expert’s testimony
where expert testified at trial based on facts not previously disclosed to plaintiffs and
used a PowerPoint presentation that had not been shown to plaintiffs despite
23
Dr. Reed explained the basis of her expert opinion at the hearing on Hale’s motion.
At the time he deposed Dr. Reed, Hale’s counsel had the doctor’s notes from her
interview of Hale, which included detailed breakdowns of how she scored him on the
RSVP, the Hare PCL-R, and the Static-99R. Hale failed to show that Dr. Reed had
any further responsive documentation in her possession, custody, or control or even
that such documents existed. A party cannot be sanctioned for failing to produce
documents when there is no evidence that they exist. See Chrysler Corp. v.
Blackmon, 841 S.W.2d 844, 850 (Tex. 1992).
Hale also alleged that Dr. Reed had provided “evasive or incomplete” answers
during her deposition, “and such answers may be treated as a failure to answer.” Hale
is correct on the law but misapplies it to his case. For purposes of Rule 215.1, an
evasive or incomplete answer is to be treated as a failure to answer. Tex. R. Civ. P.
215.1(c); Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, 884 (Tex.
2017). When a witness gives an evasive answer in a deposition, the proper sanction is
to exclude the deposition. Tex. & N.O. Ry. Co. v. Crowder, 70 Tex. 222, 224, 7 S.W.
repeated requests). He argued in the trial court that he “must have the opportunity to
respond to expert testimony properly and logically,” but he has not shown how he
was deprived of this opportunity. The trial court as much as encouraged Hale to
cross-examine Dr. Reed about the matters he raised in his motion to exclude her
testimony, telling him that “it sounds like there’s a lot of . . . fertile ground for cross-
examination, and that’s certainly available.” When ruling that Dr. Reed’s testimony
would be admissible before the jury, the trial court told Hale that he could “attack . . .
her methods [and] her testimony through cross-examination.” When Dr. Reed
testified at trial, Hale never once objected that she was relying upon or testifying to
facts that had not previously been disclosed to him.
24
709, 711 (1888). Hale did not move to exclude Dr. Reed’s deposition from evidence;
the only sanction he requested was the complete exclusion of her testimony.
Before sanctions can be imposed, there must be some evidence to show an
abuse of discovery. Glob. Servs., Inc. v. Bianchi, 901 S.W.2d 934, 938 (Tex. 1995). Hale
failed to prove up the assertions in his motion for sanctions and thus failed to
establish his right to the relief he sought. Because Hale failed to meet his burden as
the movant for sanctions, the trial court did not abuse its discretion in denying his
motion for sanctions. We overrule Hale’s second issue.
IV. EXCLUSION OF PAROLE EVIDENCE
In his third issue, Hale claims that the trial court erroneously excluded evidence
that a Texas Department of Criminal Justice parole panel had approved him for
release on parole “based on its legislatively required findings that Mr. Hale ‘is able and
willing to fulfill the obligations of a law-abiding citizen’ and that Mr. Hale’s release on
parole is in the ‘best interest of society.’” In his fourth issue, Hale claims that the trial
court erred in excluding evidence of his conditions of parole. The State responds that
the excluded evidence was irrelevant, and even if the trial court abused its discretion
in excluding this evidence, any error was harmless. We agree with the State’s
harmlessness argument.
To obtain reversal of a judgment based on an error in the trial court, the
appellant must show that the error occurred and that it probably caused rendition of
an improper judgment or probably prevented the appellant from properly presenting
25
the case to this court. Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc.,
166 S.W.3d 212, 225 (Tex. 2005). We will not reverse a trial court’s judgment because
of an erroneous evidentiary ruling unless the ruling probably, though not necessarily,
caused the rendition of an improper judgment. Gunn v. McCoy, 554 S.W.3d 645,
668 (Tex. 2018); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). The
complaining party must usually show that the whole case turned on the evidence at
issue. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on
reh’g); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995). If
erroneously-excluded evidence was crucial to a key issue, then the error was likely
harmful, but not conclusively or per se harmful. Gunn, 554 S.W.3d at 668. However,
error in excluding evidence is likely harmless if the rest of the evidence was so one-
sided that the error likely made no difference in the judgment. Id. “Likely” does not
mean “definitely,” and “we apply the same standard—whether the erroneous
exclusion of evidence probably caused the rendition of an improper judgment—even
when the excluded evidence related to a key issue.” Id. at 668–69, 671; JLG Trucking,
LLC v. Garza, 466 S.W.3d 157, 165 (Tex. 2015).
The party need not show that but for the erroneous exclusion of the evidence a
different judgment would necessarily have been rendered, but only that the error
“probably” resulted in an improper judgment. Gunn, 554 S.W.3d at 671. “This
standard is less a precise measurement and more a matter of judgment.” Diamond
26
Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 551 (Tex. 2018); see also Hughes,
306 S.W.3d at 242–43.
We examine the entire record in determining harm. Gunn, 554 S.W.3d at 671;
U-Haul Int’l, Inc., 380 S.W.3d at 136. We evaluate the entire case from voir dire to
closing argument, considering the evidence, the case’s strengths and weaknesses, and
the verdict. Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 236 (Tex. 2011). Here, Hale
stipulated in his opening statement to the jury that he “has two convictions for
sexually violent offenses under [the] Texas Health [and] Safety Code.” Thus, the only
contested element that the State had to prove was that Hale suffered from a
behavioral abnormality that made him “likely to engage in a predatory act of sexual
violence.” See Tex. Health & Safety Code Ann. § 841.003(a)(2).
A. Any Error in Excluding Evidence of the Parole Panel’s Findings and
Recommendation Was Harmless.
Hale directs our attention to Texas Government Code Section 508.141(e)(2),
which provides, “A parole panel may release an inmate on parole only when . . . the
parole panel believes that the inmate is able and willing to fulfill the obligations of a
law-abiding citizen,” and Section 508.141(f), which provides, “A parole panel may
order a parole only for the best interest of society and not as an award of clemency.”
Tex. Gov’t Code Ann. § 508.141(e)(2), (f). He argues that “a person cannot
simultaneously be ‘able and willing to fulfill the obligations of a law-abiding citizen’
and also be ‘likely to engage in a predatory act of se[x]ual violence.’” We disagree.
27
Again, “likely” does not mean “definitely.” Further, a person’s ability and willingness
to do something is temporal and prone to change over time; it does not amount to a
certainty that he will do it or equate to a quantifiable probability that he will or will
not achieve it. We also note that Hale’s offer of proof elicited the following testimony
from Dr. Reed on the issue of whether or not Hale suffers from a behavioral
abnormality:
Q. Now, the Pardons -- Pardons & Paroles, they do this -- it is
their job to make an assessment of an individual and certify that that
person is safe to be released prior to placing him on parole; is that
correct?
A. They evaluate them for parole purposes, yes.
Q. Yes. And in the case of sex offenders, they do make
evaluations as to whether or not a sex offender is safe to be released into
society, correct?
A. They make an assessment, but it’s not a behavioral abnormality
assessment. They’re not doing that kind of evaluation.
Q. So you’re saying that the behavioral abnormality assessment
was not a determination as to whether or not an individual is likely to
engage in predatory act of sexual violence?
A. I’m saying they didn’t do a behavioral abnormality evaluation.
Q. A behavioral abnormality evaluation, if I’m correct, is making a
determination as to whether or not an individual is likely to engage in a
predatory act of sexual violence; is that correct?
A. It’s whether they have a behavioral abnormality that makes
them likely to -- it’s not one or the other. It’s both. And they don’t
evaluate the individual in front of them for a behavioral abnormality.
They don’t do that. It’s --
Q. They don’t --
28
A. They’re different types of evaluations. They don’t do that.
....
Q. Okay. So does the State of Texas when -- the State of Texas,
you would agree, when they’re about to release a sex offender does an
evaluation of risk with respect to whether or not the sex offender is
going to be able to be successful in life and society? Would you agree
with that, yes or no?
A. They do an assessment. I don’t know the extent of the
assessment. They don’t use the same types of measures. They don’t look
at behavioral abnormalities.
....
Q. So you don’t know what -- and you’re making it clear, you
don’t know what they do to evaluate?
A. I knew -- I know they don’t evaluate for behavioral
abnormalities. That is not the (inaudible/coughing) before the parole
board, so they do not do an evaluation of a behavioral abnormality.
Q. So it is your position in that a behavioral abnormality
evaluation is not risk assessment?
A. It’s a type of risk assessment, a specific subset of risk
assessments.
....
Q. If the State of Texas makes a determination that he’s not likely
to reoffend, and you’re making a determination as to whether or not he’s
likely to reoffend, which is what both of you are doing, how can you
differentiate that?
A. Because I did an assessment of a behavioral abnormality using
my psychological and forensic expertise, and they did an evaluation of
risk for parole purposes. They’re not the same thing.
Q. What do you think the purpose of that parole evaluation was,
Doctor?
29
A. Not to establish whether he had a behavioral abnormality as
outlined in the Texas Health and Safety Code.
Q. That wasn’t the question, Doctor. The question was, what do
you think the purpose of that parole evaluation was for?
A. To see if he was suitable for parole purposes.
Q. Okay. And what does that mean?
A. That they want to let him out on parole.
....
Q. So then you do agree that Mr. Hale should be released on
parole, correct?
A. It is my opinion that they did not do a behavioral abnormality
assessment, and that he has been on parole. And previous times and --
....
Q. It is your opinion that the State of Texas does not know what
it’s doing with respect to Pardons & Paroles, yes or no?
A. That is not what I said, no.
Q. Do you think they know what they’re doing, Doctor, yes or
no?
A. In this case, do I agree with letting him out on parole, no.
We fail to see how this testimony would have been helpful to Hale’s case or
how its exclusion caused the rendition of an improper judgment. Dr. Reed
unwaveringly maintained that the Board of Pardons and Paroles did not assess or
evaluate Hale for any behavioral abnormality. She explained the difference between
her clinical assessment of Hale and the Board’s evaluation of risk for parole purposes.
30
None of this evidence rebutted Dr. Reed’s testimony that Hale suffered from a
behavioral abnormality that made him likely to engage in a predatory act of sexual
violence, nor did it negate an element of the State’s case. We have recognized that
civil commitment and parole are separate processes with separate purposes. In re
Commitment of Born, No. 02-19-00272-CV, 2020 WL 6788213, at *7 (Tex. App.—Fort
Worth Nov. 19, 2020, no pet.).14 Further, our evaluation of the State’s closing
argument to the jury finds nothing misleading, such that the jury would be deceived
by not knowing of the parole panel’s findings and recommendation. Therefore, even
if the evidence of the Board’s parole decision was relevant and admissible, its
exclusion was harmless. We overrule Hale’s third issue.
B. Any Error in Excluding Evidence of Hale’s Current Parole Conditions
Was Harmless.
Similarly, the record does not reflect that Hale was harmed by the exclusion of
evidence of his parole conditions. Hale argues that the Texas Supreme Court decided
in Bohannan that Chapter 841’s “behavioral abnormality” definition does not require a
“diagnosed mental disorder” because it is a “single, unified issue” that focuses on
“increased risk” or “likelihood” of reoffending. 388 S.W.3d at 303 (quoting Tex.
14
The State relies on Born and our sister court’s decision in In re Commitment of
Evers, 420 S.W.3d 81, 89 (Tex. App.—Beaumont 2012, pet. denied) (op. on reh’g), to
support its argument that Hale’s 2020 grant of parole was irrelevant. We do not hold
today that the excluded parole evidence was relevant or irrelevant in this case, only
that its exclusion was harmless.
31
Health & Safety Code § 841.003(a)(2)). Hale is correct, but this statement of law is
exactly why his argument on this issue fails.
As we understand Hale’s argument, the excluded evidence of his parole
conditions was relevant to his likelihood to engage in a predatory act of sexual
violence, not whether he suffers from a behavioral abnormality. Hale thus tries to
bifurcate what the Bohannon Court called “a single, unified issue.” Id. Under the plain
language of Subsection 841.003(a)(2), as well as Bohannon and other cases interpreting
it, the issue is whether a person’s “behavioral abnormality . . . makes the person likely to
engage in a predatory act of sexual violence.” Tex. Health & Safety Code Ann.
§ 841.003(a)(2) (emphasis added). Hale’s parole conditions might affect his likelihood
of reoffending while he is on parole,15 but they have no bearing on whether he suffers
from a behavioral abnormality or not. Had the legislature intended to make a person’s
likelihood to engage in a predatory act of sexual violence a separate, predicate finding
in a civil-commitment case, it could have amended the statute to do so. The statute as
written focuses the factfinder’s inquiry on whether the alleged SVP’s “behavioral
abnormality”—and nothing else—makes the person likely to reoffend.
Moreover, Hale does not explain how he was harmed by the exclusion of this
evidence, other than to contend, “A jury could reasonably find that a person poses no
Hale’s argument also fails to address what would happen to his “likelihood of
15
reoffending” once he discharges his parole and is no longer subject to the conditions
he wanted to present to the jury.
32
such risk based on this person’s parole conditions (i.e., the parole conditions are so
restrictive as to amount to stranding a person on a deserted island in the middle of
nowhere).” This contention suffers from the same flaw as the rest of Hale’s parole-
conditions argument: It attacks only part of the issue without addressing the essential
behavioral-abnormality component. The jury charge contained the complete statutory
definitions of “sexually violent predator” and “behavioral abnormality.” Hale does not
complain of any error in that charge, and we presume that the jury followed the
trial court’s instructions. Faust v. BNSF Ry. Co., 337 S.W.3d 325, 337 (Tex. App.—
Fort Worth 2011, pet. denied); see also In re Commitment of Guest, No. 02-19-00295-CV,
2021 WL 1245087, at *9 n.9 (Tex. App.—Fort Worth Apr. 1, 2021, pet. denied).
Additionally, the jury heard evidence that Hale had previously been on parole with
restrictions and had violated some of those restrictions. We therefore conclude that
the evidence of Hale’s current parole conditions would not have changed the jury’s
ultimate findings, and thus the exclusion of this evidence probably did not cause the
rendition of an improper judgment. We overrule Hale’s fourth issue.
V. CONCLUSION
Having overruled Hale’s four issues, we affirm the trial court’s order of civil
commitment.
33
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: March 2, 2023
34