in Re Commitment of Ricky Wayne Turner ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00402-CV
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IN RE COMMITMENT OF RICKY WAYNE TURNER
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-11-12507 CV
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MEMORANDUM OPINION
The State filed a petition to commit Ricky Wayne Turner as a sexually
violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-841.151 (West
2010 & Supp. 2014) (the SVP statute). A jury found that Turner suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. See id. § 841.003(a) (West Supp. 2014). The trial court signed a final
judgment and order of civil commitment. Turner raises three issues on appeal: 1)
Turner argues that the trial court erred in denying him assistance of counsel at a
post-petition psychiatric examination; 2) Turner argues the trial court erred in
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admitting into evidence graphic details of his sexually violent offenses; and 3)
Turner challenges the factual sufficiency of the evidence supporting the finding
that he is a sexually violent predator. Finding no error, we affirm the trial court’s
judgment and order of civil commitment.
RIGHT TO COUNSEL
In his first issue, Turner contends that the trial court committed reversible
error by denying him the right to have his attorney present at the post-petition
psychiatric examination conducted by the State’s expert prior to trial. We have
held that neither the SVP statute nor the Fourteenth Amendment requires that
counsel be present during a psychiatrist’s post-petition examination. In re
Commitment of Smith, 422 S.W.3d 802, 810 (Tex. App.—Beaumont 2014, pet.
denied). Therefore, we overrule issue one.
ADMISSION OF EVIDENCE
In his second issue, Turner challenges the admission of evidence, through
the testimony of the State’s expert, Dr. Self, regarding the details of Turner’s
charged and uncharged 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,
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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).
“[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 In re
Commitment of Day, 342 S.W.3d 193, 197-98 (Tex. App.—Beaumont 2011, pet.
denied). 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.
Turner did not object to the trial court’s limiting instruction given during the
trial or in the jury charge, nor did he request a different or additional instruction.
We presume the jury followed the trial court’s limiting instructions. See In re
Commitment of Day, 342 S.W.3d at 199. The trial court could reasonably conclude
that the facts and details related to Turner’s underlying offenses would be helpful
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to the jury in weighing the testimony and the opinion of the expert, and in
explaining the basis for Self’s opinion that Turner suffers from a behavioral
abnormality. Given the purpose for admitting this evidence and the trial court’s
limiting instructions, the trial court’s conclusion that the evidence was not unfairly
prejudicial was reasonable. See 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.). The admission of Self’s testimony was not an abuse of discretion.
See Tex. R. App. P. 44.1(a)(1). Accordingly, we overrule issue two.
FACTUAL SUFFICIENCY
In issue three, Turner challenges the factual sufficiency of the evidence to
support the jury’s verdict. Under a 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 at 213. 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 Supp. 2014). A “behavioral
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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).
During the trial, the jury heard evidence regarding Turner’s criminal history,
including his sexual offenses. Turner was arrested in 1978 for attempted rape. He
pleaded guilty, was convicted, and placed on probation. Turner also admitted that
he pleaded guilty in 1998 to two counts of indecency with a child by contact. He
was sentenced to fifteen years in prison for the indecency-with-a-child offenses. At
the time of the civil commitment trial, he was still serving the remaining term of
his sentences. Turner testified at trial that he was addicted to sex while he was in
the “free world,” and that he has not received sex offender treatment. Turner
admitted he knew it was wrong to sexually offend against his victims, but that he
did it anyway. Turner told the jury, “I didn’t go looking for the kids,” therefore he
does not consider himself a pedophile even though some of his victims were
children. He explained that he committed the sexual offenses against children
because of his “sexual addiction.” Turner testified that he is not currently sexually
attracted to children, nor was he sexually attracted to them when he committed the
offenses against them. Turner testified that his sexual assaults of the adult victims
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occurred because he was “drunk.” Turner admitted that when he asked for sex
offender treatment it was to help him “with a proceeding like this,” but he also
believes that he needs sex offender treatment to prevent him from reoffending. He
also admitted that he has a “number of high risk situations” that involve “people
and places,” including being alone with a child. Furthermore, Turner testified that
he has not learned anything in prison to help him adapt if released. He stated that
he believes his anger problem is worse now than before he went into prison, and he
is concerned about how he will control his anger and behavior when released from
prison. Turner admitted he is impulsive, has had sex with prostitutes and used
pornography in the past, and that he has received about eighty-five major
disciplinary write-ups while incarcerated.
Dr. David Self, a forensic psychiatrist, opined that Turner suffers from a
behavioral abnormality. Dr. Self identified the presence of several risk factors that
increase Turner’s likelihood of sexual re-offense: his unstable lifestyle, his
inability to control acting out on unacceptable impulses, the early age at which he
began offending, his nonsexual criminal history, his unstable work history, and his
intimacy deficits. Dr. Self diagnosed Turner with pedophilia non-exclusive
bisexual, paraphilia not otherwise specified--nonconsenting, and personality
disorder with prominent narcissistic, borderline, and antisocial traits. According to
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Dr. Self, pedophilia is a “chronic situation” that “doesn’t go away[,]” and Turner
has a “serious inability to control his behavior[.]” Furthermore, Turner’s risk of
reoffending is moderate-high.
On appeal, Turner contends the evidence was factually insufficient to
support the jury’s verdict because “the State’s only expert relied on incorrect legal
standards in reaching his opinion.” Turner complains that Self’s belief that a
person who knows the consequences of a certain behavior but engages in that
behavior anyway is volitionally impaired does not comport with the U.S. Supreme
Court’s holding that involuntary civil committees must have serious difficulty in
controlling their behavior. Turner further argues that Dr. Self’s testimony
regarding the meaning of the term “likely” being “just a mere possibility” is
contrary to the U.S. Supreme Court’s assertion that involuntary civil commitment
is limited to those who are dangerous beyond their control.
This Court has rejected the argument that the term “‘likely’ has 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). Additionally, Dr. Self’s testimony is not insufficient merely because the
term “likely” is not defined by the statute or case law. See In re Commitment of
Cardenas, No. 09-13-00484-CV, 2014 Tex. App. LEXIS 6441, at **7-8 (Tex.
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App.—Beaumont June 12, 2014, no pet.) (mem. op.); 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.). Furthermore, an expert’s explanation of the
term “likely,” in and of itself, would not necessarily render the evidence
insufficient to support a jury’s finding that a person suffers from a behavioral
abnormality. In re Commitment of Cardenas, 2014 Tex. App. LEXIS 6441, at *8;
In re Commitment of Kirsch, 2009 Tex. App. LEXIS 5436, at *19. An expert’s
definition merely goes to the weight that the jury may give the expert’s testimony.
In re Commitment of Cardenas, 2014 Tex. App. LEXIS 6441, at *8; In re
Commitment of Kirsch, 2009 Tex. App. LEXIS 5436, at *19.
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. In re Commitment of
Almaguer, 117 S.W.3d 500, 505-06 (Tex. App.—Beaumont 2003, pet. denied). “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.” Id. at 506. The jury could infer serious difficulty controlling behavior
based not only on Dr. Self’s testimony, but also on Turner’s past behavior, his
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testimony, and the evidence submitted to the jury. 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 Dr.
Self’s testimony regarding volitional impairment renders the evidence insufficient.
We conclude that, as sole judge of the weight and credibility of the evidence,
the jury could reasonably conclude that Turner 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 **6-8 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see
also In re Commitment of Almaguer, 117 S.W.3d at 506; In re Commitment of
Burnett, 2009 Tex. App. LEXIS 9930, at *13; In re Commitment of Grinstead,
2009 Tex. App. LEXIS 228, at *16; In re Commitment of Mullens, 92 S.W.3d 881,
887 (Tex. App.—Beaumont 2002, pet. denied). The jury could infer serious
difficulty controlling behavior not only from the expert testimony, but also from
Turner’s testimony and past behavior. See In re Commitment of Burnett, 2009 Tex.
App. LEXIS 9930, at *13; see also In re Commitment of Grinstead, 2009 Tex.
App. LEXIS 228, at *20. Weighing all of the evidence, the verdict does not reflect
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a risk of injustice that would compel ordering a new trial. See In re Commitment of
Day, 342 S.W.3d at 213. We overrule issue three and affirm the trial court’s
judgment.
AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on July 7, 2014
Opinion Delivered September 11, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
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