in Re: Commitment of Cedric Ausbie ( 2019 )

Affirmed and Memorandum Opinion filed August 6, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00167-CV
IN RE COMMITMENT OF CEDRIC AUSBIE
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1302213-0101Z
MEMORANDUM OPINION
In this appeal from a final judgment and an order of civil commitment, a trial
court found Cedric Ausbie is a sexually violent predator as defined in the Texas
Health and Safety Code and subject to civil commitment. See Tex. Health & Safety
Code Ann. §§ 841.001-.151 (Vernon 2017 & Supp. 2018). On appeal, Ausbie
contends the evidence is legally and factually insufficient to “support a beyond-a-
reasonable-doubt finding that Mr. Ausbie has a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence.” We affirm.
BACKGROUND
I. The Texas Civil Commitment of Sexually Violent Predators Act
The Texas Civil Commitment of Sexually Violent Predators Act (SVP Act)
provides for the civil commitment of sexually violent predators based on legislative
findings that “a small but extremely dangerous group of sexually violent predators
exists and that those predators have a behavioral abnormality that is not amenable to
traditional mental illness treatment modalities and that makes the predators likely to
engage in repeated predatory actions of sexual violence.” Tex. Health & Safety
Code Ann. § 841.001. The Legislature expressly found that “a civil commitment
procedure for the long-term supervision and treatment of sexually violent predators
is necessary and in the interest of the state.” Id.
Under the SVP Act, a person is a sexually violent predator if 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. Id. §
841.003(a). Before the State files suit, a person must be administratively determined
to be a sexually violent predator. Id. §§ 841.021-.023; In re Commitment of
Bohannan, 388 S.W.3d 296, 298 (Tex. 2012). When the administrative
determination is made, notice is given to an attorney representing the State. Tex.
Health & Safety Code Ann. § 841.023.
Once the person is referred to the State, an attorney representing the State may
file a civil commitment proceeding in the court of conviction for the person’s most
recent sexually violent offense. Id. § 841.041(a). If a judge or jury determines that
the person is a sexually violent predator, the trial court must commit the person for
treatment and supervision to begin on the date of release from prison and to continue
“until the person’s behavioral abnormality has changed to the extent that the person
is no longer likely to engage in a predatory act of sexual violence.” See id. §
2
841.081(a).
II. Ausbie’s Trial
The State filed a petition alleging Ausbie is a sexually violent predator and
requesting that he be committed for treatment and supervision. The case was tried
in a bench trial in October 2017.
The State presented pen packets which showed Ausbie’s convictions for two
sexual offenses. Ausbie sexually assaulted a 16-year-old girl in 2004. Ausbie
pleaded guilty to the offense of sexual assault of a child and was sentenced to two
years’ confinement. He was released in 2007. In 2011, he was charged with
indecency with a child; the victim was a nine-year-old boy. He pleaded guilty and
was sentenced to seven years’ confinement in 2013.
The State presented two experts, who performed a clinical assessment of
Ausbie, to testify concerning their opinion about whether Ausbie suffers from a
behavioral abnormality: Dr. Sheri Gaines, a board-certified psychiatrist, and Dr.
Timothy Proctor, a board-certified forensic psychologist.
Proctor testified he has been conducting evaluations with regard to behavioral
abnormality for ten years and has conducted approximately 70 evaluations. Proctor
relied on principles of forensic psychology in his evaluation of Ausbie and testified
it was his opinion “Ausbie has a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence.” To form his opinion, Proctor stated
he reviewed “the standard types of records in these cases,” including police reports,
victim statements, court documents, judgments, pen packets, “prison records that
deal with summaries of him in his history, his behavior in prison, medical and
psychiatric treatment in prison”; interviewed Ausbie face-to-face; scored the Static-
99R instrument, which is an actuarial test; and reviewed the deposition of Gaines,
3
the deposition of psychologist Dr. Bauer, who conducted a multidisciplinary report
and concluded Ausbie has a behavioral abnormality, the deposition of psychologist
Dr. Mauro, who was asked to evaluate Ausbie’s competency and concluded he was
incompetent to testify at the commitment trial and also has a psychotic disorder
which significantly impairs him, and the deposition of Ausbie which provided a
“continued look” into his psychotic state.
Proctor explained that the records he reviewed are typically reviewed by
experts to form an opinion if a person has a behavioral abnormality. He explained
he relied on the data in these records because, in order to determine if Ausbie has a
behavioral abnormality, Proctor has to know Ausbie’s history, behavior, problems,
and prior sexual offenses. Proctor testified that “[m]any of the commonly used risk
factors in the research are based on the person’s history and past. So, in
understanding the person right now, it’s important that we look back.”
Proctor testified he met Ausbie in person at the Skyview unit in March 2017
but was unable to conduct a typical interview in length or scope because of Ausbie’s
level of impairment and severe mental illness. Proctor could not communicate with
Ausbie and did not consider Ausbie at any point during the interview to be
competent. Despite Ausbie’s inability to communicate with Proctor, Proctor
explained the interview was very important because he could observe “how impaired
[Ausbie] is and how impaired his thinking is and his behavior is.” Ausbie did not
understand why Proctor was there and was “very distracted by things going on in his
head”; it was difficult for Proctor to get Ausbie to respond to any questions and
Ausbie got “a little bit agitated.” Proctor diagnosed Ausbie with “a severe mental
disorder called schizoaffective disorder that’s a type of schizophrenia.” Proctor
stated that “a major driver in [Ausbie’s] likelihood of committing predatory acts of
sexual violence is his very disorganized thinking . . . and he has serious difficulty in
4
controlling his behavior. So, witnessing that firsthand was important and added to
my evaluation.”
Proctor testified he was unable to score Ausbie under the typical psychopathy
checklist called P.C.L.R. because the instrument score is based in part on self-
reporting and Ausbie could not provide any information because of his severe mental
impairment. Although Proctor was unable to score the psychopathy checklist, he
was able to determine that Ausbie’s behavioral abnormality is “not driven by
psychopathy or him being a psychopath.” Proctor stated Ausbie has antisocial traits
and a psychotic disorder but psychopathy is not “what’s driving his sexual acting
out behavior or what is driving this” behavioral abnormality.
Further, Proctor stated that, although “diagnoses” are not “required to find
[Ausbie] has a behavioral abnormality,” he diagnosed Ausbie with schizoaffective
disorder and borderline intellectual functioning. According to Proctor,
schizoaffective disorder relates to a finding of behavioral abnormality because the
disorder impacts Ausbie’s “ability to control his behavior and emotionally manage
. . . his behavior. And in particular it deals with how his sexual deviancy comes out
in his ability to control sexual deviant thoughts and urges.” Proctor stated Ausbie’s
borderline intellectual functioning contributes to finding Ausbie has a behavioral
abnormality because “this mental functioning . . . disinhibits him, impacts his
decision making choices, emotional functioning, and then leads to the sexual
deviancy manifesting itself.”
With regard to the antisocial traits cluster of risk factors, Proctor testified he
considered Ausbie’s psychotic disorder and unstable relationship history. He also
considered Ausbie’s nonsexual criminal history as an antisocial lifestyle. Proctor
testified Ausbie was charged with aggravated assault with a deadly weapon when he
was 17 years old. A few months later, Ausbie was charged with aggravated assault
5
causing bodily injury for which he received and completed probation in December
2002. In 2003, Ausbie “was detained and taken to the psychiatric hospital after he
jumped out in front of a car and was refusing to get off the car, even when the car
started moving.” In 2004, “there was a possession of marijuana charge he got some
jail time for. Also a criminal trespass with some jail time in [20]04.” Ausbie was
also charged with public intoxication and criminal mischief before being charged
with the 2004 sexual assault of a child and serving a prison sentence until 2011.
With regard to the sexual deviance risk factor, Proctor characterized Ausbie’s
sexual offenses as sexually deviant because “[o]ne, there’s force in both of his sexual
offense convictions. Additionally, his second victim was a prepubescent child”
which “suggests the pedophilic urges and interests and possibly a pedophilic
disorder.”
Proctor explained that the details of Ausbie’s two sexual offenses were
important and allowed him to identify numerous risk factors relative to determining
if Ausbie suffers from a behavioral abnormality, including (1) physical coercion
during sex; (2) unrelated victim; (3) aggressive and agitated behavior; (4) persistence
after punishment, which means “committing a sex offense after being sanctioned for
a sex offense”; (5) age discrepancy between Ausbie and the victims; (6) one victim
was a male; and (7) the boy was a stranger victim.
Proctor also testified that another factor he considered in forming his opinion
was that Ausbie has a history of substance use problems that are currently “not active
because he’s in prison.” Proctor testified Ausbie used “[c]ocaine, which is a
stimulant; marijuana; P.C.P.; and other hallucinogenics, in particular ecstasy.”
According to Proctor, “[s]ubstance use is something that disinhibits” and “having a
prior history of having a problem when in the free world with substance use is a risk
factor for re-offense.”
6
Based on the records he reviewed, Proctor also applied the Static-99R which
is an actuarial test used to evaluate a sex offender’s risk of recidivism. He scored
Ausbie a “7”; “[t]his score puts him in the highest level, well above average risk” on
the Static-99R. Proctor testified other evaluators scored Ausbie and similarly found
him to be in the “well above average risk” category.
Proctor could not identify any protective factors to mitigate the numerous risk
factors. Proctor concluded Ausbie suffers from a behavioral abnormality.
Gaines testified she has been a psychiatrist for 27 years and has evaluated
approximately 125 people to assess whether in her opinion they have a behavioral
abnormality. Gaines testified that, according to the statutory definition, “a
behavioral abnormality is a congenital or acquired condition that affects one’s
emotional or volitional capacity and predisposes them to commit a sexually violent
act such that they are a menace to society.” In her opinion, Ausbie suffers from a
behavioral abnormality.
Gaines explained that in evaluating Ausbie she reviewed “a lot of collateral
information,” conducted a face-to-face interview, and “used [her] knowledge and
experience to formulate an opinion,” which is the “accepted methodology” used by
“psychiatrists in conducting these same evaluations in the State of Texas.” Gaines
stated she reviewed “lot of records including prison medical records, Sheriff’s
reports, witness reports,” Proctor’s deposition, Mauro’s deposition, Bauer’s
multidisciplinary report and conclusion that Ausbie has a behavioral abnormality,
and Ausbie’s deposition.
Gaines explained that her records review and interview of Ausbie were both
important in forming her opinion that Ausbie has a behavioral abnormality. She
stated the “collateral information was important for facts and details. The face-to-
face evaluation was important for [her] to evaluate Mr. Ausbie, be able to come up
7
with a psychiatric diagnosis, better understand his level of functioning, understand
his thought processes, understand his psychiatric difficulties.”
Gaines stated Ausbie’s interview was shorter than typical because of his “low
level of functioning” and his difficulty with new things, new people, a new routine,
sitting still, and being asked questions. Gaines testified “Ausbie became so
uncomfortable that he asked to terminate the interview and return to his cell.”
Although Gaines was not asked to evaluate Ausbie’s competency, she concluded
Ausbie was incompetent and did not really understand why she interviewed him.
To form her opinion that Ausbie suffers from a behavioral abnormality,
Gaines testified she considered “his clinical presentation, which includes that
inability to communicate factually, does contain many risk factors that are included
in how I arrived at my opinion. His inability to tolerate stress, his inability to tolerate
change, his lack of self-awareness, his lack of impulse control, all of those things are
part of his psychiatric presentation that helped me come to my opinion.”
Gaines also testified she diagnosed Ausbie with schizoaffective disorder,
unspecified paraphilic disorder, antisocial traits, substance use disorder, and
borderline intellectual functioning by using the DSM-5 (Diagnostic and Statistical
Manual of Disorders), which is “usually relied upon by psychiatrists in making . . .
conclusions about behavior abnormality.” According to Gaines, “[s]omeone with a
schizoaffective disorder has psychosis, either auditory hallucinations, delusions,
something that is out of touch with reality.” And there “is a mood component” to
the disorder with symptoms of depression. Gaines testified “[t]he psychotic part of
the diagnosis was clear to observe” during her interview of Ausbie because he was
“clearly out of touch with reality.” Gaines confirmed the mood component by
reviewing records, which showed Ausbie had periods of depression and mania with
impulsivity and aggression.
8
Gaines stated she reviewed Sheriff’s records, district attorney’s records, court
records, and victim statements to diagnose Ausbie with unspecified paraphilic
disorder which is “a disorder where there is [sic] deviant sexual thoughts, deviant
sexual behaviors, and those things are interfering with someone’s life. It is a very
nonspecific diagnosis” because Ausbie committed sexual offenses against a male
child victim and a female adolescent victim. Gaines stated Ausbie had no
recollection of the two sexual offenses he committed and she did not question him
long about them during the interview because Ausbie “was on the verge of an
aggressive outburst.”
Gaines described Ausbie’s two sexual offenses in detail and stated the facts
of the offenses were important to her forming an “opinion that he has a behavioral
abnormality that makes him likely to engage in predatory acts of sexual violence in
the future.” Based on the details of the offenses she could “identify the factors that
are discussed in the literature.” She considered the offenses to be violent because
they involved physical force, “involved pushing people, punching people, ripping
people’s clothes off, all of which are violent acts.” Gaines opined Ausbie is a sexual
deviant because he committed “forceful unwanted sexual acts against” a 16-year-old
girl and a nine-year-old boy. She also opined “Ausbie’s emotional volitional
capacity [has] been affected to the extent that it predisposes him to commit a sexually
violent offense so that he is a menace to the health and safety of another person.”
Gaines further stated that records show Ausbie never participated in sex
offender treatment programs because he was not “stable enough psychiatrically.”
Gaines testified that in her experience and “the literature shows that completing sex
offender treatment is helpful in reducing recidivism.” Gaines testified that
hypothetically, if “Ausbie were able to complete sex offender treatment and fall into
those statistics, it would statistically help with decreasing recidivism.” According
9
to Gaines, Ausbie takes antidepressants and antipsychotic medications to target
psychotic features like auditory hallucinations, delusions, paranoia, illogical thought
processes, disorganized behavior, aggression, impulsivity, and irritability. Ausbie
has experienced psychotic episodes since he was about 17 years old and has taken
antipsychotic medications since 2004, but none have been successful in treating his
psychotic features.
Gaines explained Ausbie receives a lot of supervision on a daily basis because
he is “extremely disorganized to the point that he is not able to take care of his
activities of daily living such as showering, brushing his teeth, getting up, having a
routine, a schedule.” According to records, Ausbie has had compliance issues with
taking his medications throughout his adulthood and is currently on “long-acting
depot injectables.”
In reaching her ultimate opinion that Ausbie suffers from a behavioral
abnormality, Gaines identified many risk factors — with the two major risk factors
being Ausbie’s sexual deviancy and his antisocial personality traits. Gaines
identified these additional risk factors: serious and persistent mental illness, physical
violence in the commission of his offenses, a male and young child victim in one of
his sexual offenses, a stranger victim, persistence after punishment, lack of sex
offender treatment, substance use history, nonsexual crime history, lack of
supervision upon a release from prison, lack of insight, lack of awareness, lack of
coping skills, Ausbie’s young age and the fact he has never been married.
Gaines testified she did not identify any protective factors to mitigate the
numerous risk factors, such as completing sex offender treatment, “learning a lot
from sex offender treatment, having a good solid discharge plan, and older age.”
Gaines testified it is “[n]ot typical at all” for someone to have “zero protective
factors.”
10
After considering the evidence presented, the trial court found Ausbie to be a
sexually violent predator and signed a final judgment and order of commitment on
October 3, 2017. Ausbie filed a motion for new trial arguing, among other things,
the evidence is legally and factually insufficient to support the trial court’s finding
that Ausbie is a sexually violent predator. The motion for new trial was overruled
by operation of law. See Tex. R. Civ. P. 329b(c). Ausbie filed a timely appeal.
ANALYSIS
Ausbie argues the evidence is legally and factually insufficient to “support a
beyond-a-reasonable-doubt finding that Mr. Ausbie has a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence.”
I. Standard of Review and Applicable Law
The commitment of a person as a sexually violent predator is a civil
proceeding. In re Commitment of Harris, 541 S.W.3d 322, 327 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). However, because the SVP Act requires the
State to prove beyond a reasonable doubt that a person is a sexually violent predator,
we review the legal sufficiency of the evidence using the appellate standard of
review for criminal cases. Id.; 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 (1979)). We consider the evidence in the light most favorable to the verdict to
determine whether a rational factfinder could have found beyond a reasonable doubt
the elements required for commitment. Harris, 541 S.W.3d at 327; Mullens, 92
S.W.3d at 885. The factfinder is the sole judge of the credibility of the witnesses
and the weight to be given to their testimony. See Harris, 541 S.W.3d at 327;
Mullens, 92 S.W.3d at 887.
Although factual sufficiency review has been abandoned in criminal cases, as
11
an intermediate appellate court with final authority over factual sufficiency
challenges in civil cases, we perform a factual sufficiency review in SVP Act cases
when the issue is raised on appeal. Harris, 541 S.W.3d at 327. “Under a factual
sufficiency review, we consider ‘whether a verdict that is supported by legally
sufficient evidence nevertheless reflects a risk of injustice that would compel
ordering a new trial.’” Id. (quoting In re Commitment of Day, 342 S.W.3d 193, 213
(Tex. App.—Beaumont 2011, pet. denied)). “‘[W]e view all of the evidence in a
neutral light and ask whether a jury was rationally justified in finding guilt beyond
a reasonable doubt.’” In re Commitment of Wirtz, 451 S.W.3d 462, 464 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (quoting In re Commitment of Gollihar,
224 S.W.3d 843, 846 (Tex. App.—Beaumont 2007, no pet.)).
Under the SVP Act, a person is a sexually violent predator if he (1) is a repeat
sexually violent offender, and (2) suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. Tex. Health & Safety
Code Ann. § 841.003(a). A person is a repeat sexually violent offender if (as
relevant here) 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). A behavioral
abnormality is defined 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). A predatory act is defined as “an
act directed toward individuals, including family members, for the primary purpose
of victimization.” Id. § 841.002(5).
II. Sufficiency of the Evidence
Within his legal and factual sufficiency challenge, Ausbie presents three
distinct arguments. We will address these arguments in turn.
12
A. Expert Opinions
First, Ausbie argues the experts’ opinions in this case are unreliable and
constitute legally and factually insufficient evidence because the experts relied on
“hearsay information in records (mostly police reports)” and “some prison records”
to form their opinions about whether he suffers from a behavioral abnormality.
Citing to Coastal Transport Company v. Crown Central Petroleum Corporation,
136 S.W.3d 227 (Tex. 2004), Ausbie argues “that he may for the first time on appeal
challenge an expert’s foundational data when the face of the record shows the
unreliability of this foundational data.” Ausbie specifically states, “An expert
opinion based on what the face of the record shows to be unreliable hearsay falls
within this category of challenges to an expert’s foundational data that can be raised
for the first time on appeal.”
Contrary to Ausbie’s assertion, Coastal Transport does not support his
argument that he may for the first time on appeal challenge Proctor’s and Gaines’s
foundational data as unreliable. The supreme court held that an objection in the trial
court is required when “a challenge to expert testimony questions the underlying
methodology, technique, or foundational data used by the witness.” Id. at 229
“When a scientific opinion is admitted in evidence without objection, it may be
considered probative evidence even if the basis for the opinion is unreliable.” City
of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Ausbie did not object
in the trial court to Proctor’s and Gaines’s expert testimony specifically challenging
the reliability of their foundational data. He cannot do so for the first time on appeal.
See Pollock, 284 S.W.3d at 818; Coastal Transport Co., 136 S.W.3d at 229, 233.
We note that Ausbie made a hearsay objection to Proctor and Gaines testifying
about the facts and details of his sexual assault of a child offense. However, under
Texas Rule of Evidence 705(a), experts may disclose on direct examination, or be
13
required to disclose on cross-examination, the underlying facts or data upon which
they relied; and they may discuss a defendant’s prior offense as part of the basis for
the experts’ opinions. See Tex. R. Evid. 705(a).
Further, we reject Ausbie’s contention that the experts’ opinions in this case
are unreliable because they were based on hearsay in the form of “mostly police
reports” which Ausbie claims the Texas Court of Criminal Appeals “described . . .
as ‘inherently unreliable’”. Ausbie cites to Cole v. State, 839 S.W.2d 798 (Tex.
Crim. App. 1990) (op. on reh’g), to support his contention. But we find Cole
inapposite. In Cole, the court rejected the State’s attempt to introduce a chemist’s
report into evidence under the hearsay exception in Texas Rule of Evidence 803(8).
Id. at 810. The court explained that the “items upon which the tests were performed
were collected as part of investigating a crime, and the reports prepared by the DPS
chemist were unquestionably a product of evaluating the results of that investigation
. . . , and perhaps most importantly, the reports were not prepared for purposes
independent of specific litigation, nor were they ministerial, objective observations
of an unambiguous factual nature.” Id. Here, Ausbie’s commitment is a civil
proceeding and not a criminal case; and the State did not attempt to introduce any
reports into evidence. Additionally, even if the State had offered police reports into
evidence, Rule 803(8) generally provides an exception to hearsay for police records
offered into evidence in a civil case. See Tex. R. Evid. 803(8).
Accordingly, we reject Ausbie’s first argument.
B. Serious Difficulty Controlling Behavior
Second, Ausbie contends the evidence is legally and factually insufficient to
support a finding that he lacks volitional control or has serious difficulty controlling
his behavior. In that regard, Ausbie contends the evidence “conclusively establishes
that, even with his severe mental illness and all the other risk factors the State experts
14
said he has, [he] was able to control himself from committing sex offenses for
approximately 99.9993% of the time he lived as an adult in the free world before
going to prison.”
The State presented testimony from experts Gaines and Proctor who opined
that Ausbie suffers from a behavioral abnormality. They based their opinions on
their interview with Ausbie, the thousands of pages of records they reviewed, the
risk assessment they conducted, and the actuarial tests administered. Both experts
testified numerous times that Ausbie lacks volitional control and has serious
difficulty controlling his behavior.
Proctor for example testified that “a major driver in [Ausbie’]s likelihood of
committing predatory acts of sexual violence is his very disorganized thinking, that
his behavior and his thinking are disorganized, and he has serious difficulty in
controlling his behavior.” Proctor testified Ausbie’s schizoaffective disorder
“impacts his ability to control his behavior and emotionally manage, you know, his
behavior.” Proctor also testified that Ausbie “has significantly impaired emotional
and volitional capacity. His psychological and emotional functioning is impaired.
His capacity to make decisions, control his behavior, is impaired. And that includes
with respect in particular to sexual offenses.” Gaines similarly testified that “Ausbie
has serious difficulty controlling his sexual behaviors” based not only on the prior
sexual offense convictions but on “his current behavior that demonstrates he
continues to have trouble controlling his impulses.”
Further, Ausbie’s contention the evidence conclusively establishes he was
able to “control himself from committing sex offenses approximately 99.9993% of
the approximately 8 years he lived in the free world” is meritless. His calculation is
incorrect in that Ausbie did not live 8 years in the free world after he committed
sexual assault of a child in 2004. Ausbie claims he did not commit a sexual offense
15
between 2004 and 2011. But evidence shows he was not released from prison for
his first conviction until May 2007 and committed indecency with a child in April
2011. Ausbie was therefore imprisoned for less than 4 years and “lived in the free
world” for approximately 4 years before committing another offense.
As we have stated above, both experts testified several times that Ausbie lacks
volitional control and has serious difficulty controlling his behavior. Ausbie’s
argument based on his flawed calculation does not constitute a challenge to Gaines’s
and Proctor’s opinion that Ausbie has a behavioral abnormality. To the extent
Ausbie attempts to argue that neither expert provided a percentage of how likely
they believed Ausbie was to reoffend, the SVP Act “does not require a numerical or
percentage statement of whether a person is ‘likely’ to reoffend.” See In re
Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—Beaumont 2012, pet.
denied).
Accordingly, we reject Ausbie’s second argument.
C. Applicability of SVP Act
Third, Ausbie asserts the evidence is “insufficient also because it conclusively
establishes that, according to the [S]tate experts, a ‘major driver’ of any behavioral
abnormality that [he] may have is his severe mental illness which is treated by
traditional mental illness modalities through various medications” and he should not
be subject to civil commitment under the SVP Act. According to Ausbie, “[a]nother
indication” that the SVP Act does not apply to him “is the provision in the trial
court’s commitment order placing [him] in the custody and control of the Health and
Human Services Commission (HHSC) purportedly under Section 841.0835” when
persons committed under the SVP Act have always been placed in the custody and
control of the Texas Civil Commitment Office. Appellant claims that even the trial
court “apparently believed” he should not be committed according to the provisions
16
of the SVP Act because it committed him “to the custody and control of HHSC to
provide psychiatric services”; “[t]his further indicates that [he] should be subject to
commitment under Chapter 574 of the Texas Health and Safety Code (which
provides inpatient traditional mental health services to a mentally ill person) and not
Chapter 841.”
The SVP Act specifically provides for the civil commitment of sexually
violent predators who have a “behavioral abnormality that is not amenable to
traditional mental illness treatment modalities and that makes the predators likely to
engage in repeated predatory acts of sexual violence.” See Tex. Health & Safety
Code Ann. § 841.001. Contrary to Ausbie’s contention, Proctor and Gaines did not
testify that Ausbie’s severe mental illness is “a ‘major driver’ of any behavioral
abnormality that [he] may have” and can be treated by traditional mental illness
treatment modalities. In fact, there is no evidence in the record that Ausbie is
amenable to traditional mental illness treatment modalities so that he should not be
civilly committed under the SVP Act.
Additionally, Ausbie incorrectly claims the trial court’s commitment order
does not comply with Texas Health and Safety Code section 841.0835 and places
him in the custody and control of the Health and Human Services Commission
instead of the Texas Civil Commitment Office. The order almost verbatim tracks
the language of section 841.0835 and states in pertinent part as follows:
CEDRIC AUSBIE has this day been adjudged a sexually violent
predator as defined in Section 841.003 of the Texas Health and Safety
Code and has been civilly committed as such in accordance with
Section 841.081 of the Texas Health and Safety Code. Therefore, the
following commitment requirements in accordance with Section
841.082 of the Texas Health and Safety Code are necessary to ensure
that CEDRIC AUSBIE complies with treatment and supervision, and
to protect the community.
17
* * *
IT IS FURTHER ORDERED that the [Texas Civil
Commitment] Office shall determine conditions of supervision and
treatment for CEDRIC AUSBIE. The Office shall provide treatment
and supervision to CEDRIC AUSBIE. The provisions of supervision
must include a tracking service and, if determined necessary by the
Office, supervised housing.
IT IS FURTHER ORDERED that pursuant to Section 841.0835
of the Texas Health and Safety Code, the Health and Human Services
Commission, after coordination with the Office, shall provide
psychiatric services, disability services, and housing for CEDRIC
AUSBIE due to his intellectual disability and mental illness that
prevents CEDRIC AUSBIE from effectively participating in the sex
offender treatment program administered by the Office until such time
that said services are no longer necessary. This shall include
psychiatric treatment, medication and counseling specifically designed
for CEDRIC AUSBIE’S psychiatric needs, adding any services that are
appropriate. If the office has determined that CEDRIC AUSBIE is
unable to effectively participate in the sex offender treatment program
because CEDRIC AUSBIE’s mental illness prevents CEDRIC
AUSBIE from understanding and internalizing the concepts presented
by the program’s treatment material, the Health and Human Services
Commission shall provide inpatient mental health services until
CEDRIC AUSBIE is able to participate effectively in the sex offender
treatment program.
The trial court’s commitment order complies with Texas Health and Safety
Code section 841.0835. Ausbie’s contentions are meritless. Accordingly, we reject
Ausbie’s third argument.
We conclude the evidence is legally sufficient to support the trial court’s
finding that Ausbie suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence. See Harris, 541 S.W.3d at 329. We
also conclude the evidence is not so weak that it “reflects a risk of injustice that
would compel ordering a new trial.” See id.; see also Wirtz, 451 S.W.3d at 466. We
overrule Ausbie’s first and second issues.
18
CONCLUSION
We affirm the trial court’s judgment and civil commitment order.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Hassan, and Poissant.
19