in Re Commitment of Dean Tyrone Tryon ( 2022 )

Opinion filed August 25, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00267-CV
__________
IN RE COMMITMENT OF DEAN TYRONE TRYON
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CV-55,137
OPINION
This is a civil commitment action under the Texas Civil Commitment of
Sexually Violent Predators Act (the Act). TEX. HEALTH & SAFETY CODE ANN.
§§ 841.001–.153 (West 2017 & Supp. 2021). After a jury trial, the jury unanimously
found, beyond a reasonable doubt, that Appellant, Dean Tyrone Tryon, is a sexually
violent predator. The trial court later signed a final judgment and commitment order
thereby committing Tryon for involuntary treatment and supervision.
Tryon raises three issues on appeal: (1) the evidence is legally insufficient to
support the jury’s finding that Tryon suffers from a behavioral abnormality; (2) the
evidence is factually insufficient to support the jury’s finding that Tryon suffers from
a behavioral abnormality; and (3) under the Texas Supreme Court’s recent decision
in In re Commitment of Stoddard, Chapter 841—the Act—is unconstitutional, both
facially and as applied to Tryon. See In re Commitment of Stoddard, 619 S.W.3d
665 (Tex. 2020). We affirm.
I. Factual Background
Before the State sought to have Tryon committed as a sexually violent
predator, Tryon had previously been convicted of two felony offenses that involved
sexual misconduct—sexual assault in 1987 and attempted sexual assault in 2012.
For each offense, Tryon was convicted pursuant to a plea bargain for which he was
sentenced to seven years’ and eight years’ imprisonment, respectively, including
confinement in a prison psychiatric unit.
At trial, the State presented Dr. Jason Dunham, a forensic psychologist, and
Dr. Michael Arambula, a psychiatrist, as expert witnesses. Tryon presented
Dr. Marisa Mauro, also a forensic psychologist, as his expert witness. Tryon also
testified. As is generally the case, the experts presented conflicting opinions
regarding whether Tryon suffered from a behavioral abnormality within the meaning
of the Act.
The three experts followed standard methodologies and explained in detail the
bases for their opinions. Although the experts’ ultimate opinions conflicted, they
did agree on several aspects of their evaluations of Tryon. Each expert agreed that
Tryon suffers from a severe mental illness that is a contributing factor to his previous
sexual misconduct. Dr. Dunham and Dr. Mauro described this mental illness as
“schizoaffective disorder,” a rare combination of schizophrenia and bipolar mood
disorder. Similarly, Dr. Arambula diagnosed Tryon with an unspecified
schizophrenia, paranoia, and bipolar illness. The three experts further diagnosed
Tryon with an antisocial personality disorder.
2
These experts also concluded that Tryon has borderline intellectual
functioning, or an intellectual disability. They agreed that Tryon abused multiple
substances in the past but that this substance abuse is currently in remission. They
further agreed that he was manic during each of their evaluations of him and that,
although Tryon has an extensive history of mental illness and attempts at treatment,
he also has a history of noncompliance concerning the use of the medications
prescribed for him. Finally, the experts agreed that Tryon has never had, sought, or
been offered sex offender treatment.
A. Dr. Dunham’s Testimony
After detailing his training and experience, Dr. Dunham testified that
“behavioral abnormality” is a purely legal term of which he is familiar. Based on
his education, training, experience, and methodology, Dr. Dunham opined that
Tryon suffers from a behavioral abnormality within the meaning of the Act.
Dr. Dunham stated that (1) Tryon has a long history of sexually assaulting women,
(2) he has an uncontrollable mental illness that raises his risk of repeated sexually
assaultive behavior, (3) he was at a high risk to reoffend when he was last
incarcerated, and (4) his risk to reoffend has only increased.
Dr. Dunham concluded that Tryon was sexually deviant; that is, he engages
in sexual behavior that is not accepted by society. Unlike most sex offenders, Tryon
reoffended after being convicted and imprisoned for a prior sexual offense. Dr.
Dunham believes that Tryon’s risk of sexually reoffending continues to increase
over time as he ages.
Dr. Dunham also diagnosed Tryon with psychopathy, an extreme form of
antisocial personality disorder. Some examples of Tryon’s antisocial personality
disorder include his commission of arson while he was on parole and his acts of
masturbation in the presence of female corrections officers and other offenders.
3
Dr. Dunham found that Tryon has an extensive history of substance abuse,
including the use of crack cocaine and alcohol, which can reduce a person’s
inhibitions. Tryon also has a significant history of hallucinations, delusions, and
noncompliance concerning his use of the medications prescribed for him, which
causes him to decompensate when he is not taking the medications. Dr. Dunham
found that Tryon was psychotic and not taking his medications at the time of his
interview. Because of this, Dr. Dunham opined that, during a psychotic break, Tryon
will act impulsively and do whatever his desires dictate.
According to Dr. Dunham, Tryon’s score on the Static-99R was one, which
placed Tryon in an average risk category to reoffend sexually. However, this test
does not account for Tryon’s mental illness. Dr. Dunham found that Tryon has
several concerning dynamic risk factors, namely, that Tryon does not believe that
(1) he has a problem, (2) he is a sexual offender, (3) he is noncompliant with his
prescribed medications, and (4) he needs sex offender treatment.
Dr. Dunham considered two possible protective factors for Tryon: his
advanced age and his institutional adjustment. At the time of Dr. Dunham’s
evaluation, Tryon was sixty-three years old. His advanced age would typically be a
protective factor. However, Tryon’s most recent sexual offense while not
imprisoned occurred when he was fifty-five years old, an age which would also
typically be a protective factor. A year before this evaluation, and while imprisoned,
Tryon masturbated onto another inmate; Dr. Dunham considers this conduct to be
an additional indication that Tryon’s advanced age is not the protective factor that it
typically would be in other cases. Although Tryon received minimal disciplinary
infractions while institutionalized, which would usually indicate good institutional
adjustment, Dr. Dunham noted that Tryon was confined to a specialized psychiatric
unit where many of his behaviors were either ignored or excused.
4
Dr. Dunham testified that, in his opinion, Tryon’s combination of lower
functioning intelligence, mental illness, and history of substance abuse is a formula
for him to impulsively do anything without considering the consequences.
B. Dr. Arambula’s Testimony
Like Dr. Dunham, Dr. Arambula detailed his training and experience and
explained the statutory definition of “behavioral abnormality” for the jury. Based
on his expertise—his education, training, experience, and methodology—he opined
that Tryon suffers from a behavioral abnormality within the meaning of the Act.
That abnormality consists of Tryon’s sexual deviance, mental illness, substance
abuse, and antisocial personality.
Dr. Arambula pointed to Tryon’s second sexual offense as an example of
Tryon’s behavioral abnormality: he gave a woman a ride home, during which
everything appeared to be fine, and then he suddenly became intent on raping her,
despite not previously displaying any signs of agitation or mental illness. Dr.
Arambula stated that Tryon is sexually deviant; that is, he has pathological sexual
interests that interfere with his relationships. In addition to his two felony
convictions for sexual offenses, Tryon behaved in a sexually inappropriate manner
during his imprisonment and confinement in a mental hospital. Further, Tryon
sexually offended in his thirties and again in his fifties. According to Dr. Arambula,
it is unusual for a man to sexually offend in his fifties.
Dr. Arambula believes that Tryon has both a sexual deviance and an antisocial
personality, both of which cause a person to be a high risk to sexually reoffend.
Dr. Arambula noted that Tryon has a history of substance abuse, including the use
of cocaine, heroin, PCP, and alcohol. He also suffers from hallucinations and
exhibits quick mood changes, which are caused by his mania.
During the interview with Dr. Arambula, Tryon was manic and unstable.
Dr. Arambula testified that it is extremely uncommon for people with
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schizoaffective disorder to sexually assault others or to have an antisocial personality
disorder, yet Tryon does. Dr. Arambula believes that Tryon’s underlying sexual
deviance and antisocial personality disorder, which are the two heaviest-weighted
risk factors for sexually reoffending, are the cause of Tryon’s propensity to sexually
reoffend. Although Tryon has an extensive history of prescribed antipsychotic
medications and mood stabilizers, he is typically not compliant. According to
Dr. Arambula, the medications prescribed for Tryon do not treat or control Tryon’s
sexual deviance or his antisocial personality disorder.
C. Dr. Mauro’s Testimony
Like Dr. Dunham and Dr. Arambula, Dr. Mauro also explained the statutory
definition of “behavioral abnormality” for the jury. Based on her education, training,
experience, and methodology, and contrary to the opinions expressed by
Dr. Dunham and Dr. Arambula, Dr. Mauro opined that Tryon does not have a
behavioral abnormality within the meaning of the Act. Dr. Mauro stated as such
because Tryon is “not part of the small and extremely dangerous population that is
not subject to traditional forms of mental health treatment. And this is part of the
legislative findings in the law.”
Dr. Mauro stated that Tryon is very ill mentally and has lower intellectual
functioning. During the interview with Dr. Mauro, Tryon displayed symptoms of
mania, including delusions and hallucinations. Although Tryon was cooperative,
several of his responses were nonsensical. Dr. Mauro explained that there are times
when Tryon’s schizophrenia will dominate his actions, and other times when his
bipolar disorder will be dominant.
Dr. Mauro described Tryon’s institutional adjustment as relatively good, and
she stated that his behavior has improved as he has aged. His masturbating onto or
in front of others while institutionalized is probably a result of his mania. Tryon
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reported to Dr. Mauro during the interview that he had acted in this manner in each
of the two days preceding the interview.
Dr. Mauro assessed a score of twenty-four for Tryon on the psychopathy
checklist; this indicates that he has mixed psychopathic traits but is not a true
psychopath. When evaluated by Dr. Mauro, Tryon’s score was two on the Static-
99R, which is the typical score for a sex offender, and two on the Static-2002R,
which is a lower score than for a typical sex offender.
Dr. Mauro testified that she believes a person with a behavioral abnormality
within the meaning of the Act cannot be a person who is amenable to traditional
forms of mental health treatment. Schizophrenics are amenable to such treatments.
Therefore, in her opinion, because Tryon is schizophrenic, he cannot have a
behavioral abnormality within the meaning of the Act, despite his classification of
having a moderate risk to reoffend sexually.
D. Tryon’s Testimony
At trial, Tryon was sixty-three years old and currently imprisoned for the
felony offense of sexual assault. He stated that he has been in and out of hospitals
and prisons for most of his adult life. He admitted to masturbating in the direction
of female corrections officers while confined in these facilities. Tryon claimed that
although he used to think about sex all the time, now he does not.
Tryon has abused substances throughout his life, including heroin, cocaine,
acid, LSD, huffing gas, PCP, and marihuana. He claimed that he did not rape
anyone, but rather that he was on a “trick” with a prostitute and she agreed to
exchange sex for cocaine. He claimed that he was intoxicated on alcohol and drugs
at the time. He was later convicted of sexual assault and sentenced to imprisonment
for this offense.
Tryon testified that he had previously been imprisoned for a sexual offense
before he was convicted and imprisoned for the sexual assault (rape) charge, but he
7
only vaguely remembers the details of that offense. He has also been convicted and
imprisoned for arson.
Tryon testified that he is a diagnosed paranoid schizophrenic and that he has
always taken his prescribed medications as directed.
II. Civil Commitment of Sexually Violent Predators
The 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 acts of sexual violence.” In re
Commitment of Stratton, 637 S.W.3d 870, 875 (Tex. App.—Eastland 2021, no pet.)
(quoting HEALTH & SAFETY § 841.001).
A civil commitment proceeding under the Act incorporates the “beyond a
reasonable doubt” burden of proof that is applicable to criminal cases. Id. (citing In
re Commitment of Fisher, 164 S.W.3d 637, 641 (Tex. 2005)). That is, to civilly
commit a person under the Act, the State must prove beyond a reasonable doubt that
the person is a sexually violent predator. Id. (citing HEALTH & SAFETY
§ 841.062(a)). 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. (citing
HEALTH & SAFETY § 841.003(a)).
The Act defines a “repeat sexually violent offender” as a person who has been
“convicted of more than one sexually violent offense and a sentence is imposed for
at least one of the offenses.” HEALTH & SAFETY § 841.003(b). The Act also 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
8
and safety of another person.” Id. § 841.002(2). Whether a person suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence is a single, unified issue. In re Commitment of Bohannan, 388
S.W.3d 296, 303 (Tex. 2012); Stratton, 637 S.W.3d at 876. The term “behavioral
abnormality” can be more clearly defined as a “congenital or acquired
predisposition, due to one’s emotional or volitional capacity, to commit a sexually
violent offense, to the extent that the person becomes a menace to the health and
safety of another person.” Stratton, 637 S.W.3d at 876 (quoting Bohannon, 388
S.W.3d at 303). Lastly, the Act defines “sexually violent offense” to include certain
sexual offenses enumerated in the Penal Code, including sexual assault, as well as
offenses with substantially similar elements under prior state law or the law of other
jurisdictions. Stoddard, 619 S.W.3d at 669 n.1; see HEALTH & SAFETY
§ 841.002(8)(A) (listing sexual assault as a sexually violent offense); TEX. PENAL
CODE ANN. § 22.011 (West Supp. 2021).
III. Analysis
All of Tryon’s arguments are predicated on his misinterpretation—or
disapproval—of the Texas Supreme Court’s decision in Stoddard, in which the court
rejected the notion that a factual sufficiency review without consideration of the
Act’s application to a “small group” of “extremely dangerous” sex offenders risked
“ripping [the Act] from its constitutional foundation, thus opening the door to civil
commitments of sex offenders based solely on their predicate sex offenses.”
Stoddard, 619 S.W.3d at 677–78.
The United States Supreme Court has held that civil commitment statutes, like
the Act, do not violate a person’s due process rights under the United States
Constitution if the challenged statute requires proof of at least two elements: “proof
of dangerousness” and “proof of some additional factor such as a ‘mental illness’ or
9
‘mental abnormality.’” Kansas v. Hendricks, 521 U.S. 346, 358 (1997); see also
Kansas v. Crane, 534 U.S. 407, 410–14 (2002).
In Stoddard, the Texas Supreme Court reversed the Fort Worth Court of
Appeals’ construction of the Act as requiring a reference to language that exceeded
the scope of the statutory definition of “sexually violent predator.” The court noted
that, in anchoring its sufficiency review in the “small but extremely dangerous
group” language found in the Act’s legislative findings, the court of appeals had
expressed it did so out of its concern that a failure to consider the Act’s application
to a “small group” of sex offenders “risk[ed] ripping [the Act] from its constitutional
foundation, thus opening the door to civil commitments [under the Act] of sex
offenders based solely on their predicate sex offenses.” Stoddard, 619 S.W.3d at
678. But the court explained that this concern was unfounded because the Act
inherently limits the scope of civil commitment to a limited subset
of offenders: those who committed certain enumerated sexually
violent offenses, are repeat offenders, and suffer from a behavioral
abnormality that makes them likely to engage in a predatory act of
sexual violence. In other words, the Act requires evidence of both
repeat past sexually violent behavior and a present condition that
creates a likelihood of such conduct in the future. A factual-
sufficiency review focused on the Act’s actual requirements does
not threaten its constitutionality.
Id. (citing Hendricks, 521 U.S. at 358).
Tryon presents the same construction of the Act that the Texas Supreme Court
rejected in Stoddard. According to him, the Stoddard court’s construction of the
Act—that is, that the statutory language defining “sexually violent predator” is all
the State is required to prove—decouples the two elements required by Hendricks
and Crane to protect the due process rights of individuals committed under the Act.
This is so, he claims, because the statutory definition of behavioral abnormality
requires only that the abnormality renders a person “likely” to reoffend or “creates
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a likelihood of such conduct in the future.” HEALTH & SAFETY § 841.003(a)(2);
Stoddard, 619 S.W.3d at 678. Tryon argues that this “likely” or “likelihood”
language sets too low of a bar because any person whose past conduct meets the first
element of the statute, i.e., whether one is a “repeat sexually violent offender,” is
inevitably “likely” to reoffend and therefore automatically meets the second
element, i.e., whether one has a “behavioral abnormality.” Because this effectively
folds the second element into the first, Tryon concludes, the bare definitional
language of the Act fails to meet the due process standards promulgated by the
Supreme Court in Crane and Hendricks.
Thus, Tryon contends that, to avoid violating the due process rights of persons
who have been committed under the Act, we must incorporate as interpretive
guidance the language of the Act’s legislative findings into the definition of
“sexually violent predator.” Such a construction would clearly limit the Act’s
applicability to only the “small but extremely dangerous group of sexually violent
predators” who have a behavioral abnormality “that is not amenable to traditional
mental illness treatment modalities.” HEALTH & SAFETY § 841.001. Therefore,
according to Tryon, the Act does not apply to him because rather than being
“extremely dangerous” he is merely a “dangerous” sex offender, and the sexual
offenses he committed are the result of a mental illness that is treatable by
medication—a traditional modality.
But Tryon misconstrues the holding in Stoddard.1 The court there explained
that the Act’s definitional language interweaves the two distinct characteristics that
1
Tryon avers that these legislative findings provide guidance as to the meaning of the “behavioral
abnormality” element, rather than that the legislative findings impose an additional element. He cites to
several examples in which courts have used legislative findings to determine the meaning of a statute,
including In re Commitment of Fisher, in which the Texas Supreme Court relied on the Act’s legislative
findings to reject other constitutional challenges to the Act. Fisher, 164 S.W.3d at 639–40, 646–47, 651.
This same reasoning was advanced by the court of appeals in Stoddard and later explicitly rejected by the
supreme court. See Stoddard, 619 S.W.3d at 677–78.
11
must exist to civilly commit a person as a sexually violent predator: he must have
(1) repeatedly committed acts of sexually violent behavior in the past and (2) a
present condition that creates a likelihood of committing such conduct in the future.
Stoddard, 619 S.W.3d at 678; see also Crane, 534 U.S. at 410 (“[T]he statute’s
requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with
the requirements of . . . other statutes that we have upheld in that it narrows the class
of persons eligible for confinement . . . .”). These two elements are not inexorably
linked such that they must blend into each other. Moreover, although the behavioral
abnormality from which a person presently suffers may have also previously
afflicted him and contributed to his having repeatedly sexually offended in the past,
the Act also covers circumstances in which a person’s repeat past sexually violent
behavior was not caused by and is not related to his present behavioral abnormality.
See HEALTH & SAFETY § 841.002(2) (“‘Behavioral abnormality’ means a congenital
or acquired condition . . . .”).
As we have said, each of Tryon’s issues are predicated on his
misinterpretation—or disapproval—of the holding in Stoddard. His arguments are
essentially categorized as either (1) the “behavioral abnormality” element must be
construed as incorporating the Act’s legislative findings and legislative history—
which, he insists, would render the evidence against him legally and factually
insufficient—or (2) the Act is unconstitutional. But Stoddard has clearly foreclosed
these arguments and interpretation, and we are bound to follow the supreme court’s
precedent. With this in mind, we turn to Tryon’s sufficiency challenges.
A. Tryon Fails to Challenge the Sufficiency of the Evidence
The State asserts that Tryon does not challenge the legal or factual sufficiency
of the evidence to meet the statutory definitions of “sexually violent predator,”
“repeat sexually violent offender,” or “behavioral abnormality” and the jury’s
findings on those elements. Because these were the only elements or definitions that
12
the State was required to prove, the State contends that Tryon’s sufficiency issues
should be overruled, as he attacks and focuses only on matters that were not required
to be established. We agree.2
There is no indication in the record that the trial court’s charge included any
mention of or reference to the legislative-findings language emphasized by Tryon,
such as “small group,” “extremely dangerous,” or “traditional treatment modalities.”
See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003)
(holding that, to obtain a clear understanding of the pertinent evidence, the starting
point of a sufficiency review is the trial court’s charge and accompanying
instructions). Here, Tryon did not request that the above language be included in the
charge. Further, the jury was not asked to answer any question, because none were
submitted in the charge, that pertained to any of those phrases. The record shows
that only the proper statutory definitions were submitted in the charge, and the jury,
after considering those definitions and the evidence presented, returned a verdict that
Tryon is a sexually violent predator. Because Tryon does not contest that the
evidence was insufficient to support the jury’s “behavioral abnormality” finding
based on the submitted statutory definitions, he does not present a sufficiency
challenge for our review.
B. The Evidence is Legally Sufficient
Even assuming that Tryon has properly presented a legal sufficiency
challenge for our review, we hold that the evidence is legally sufficient to support
the jury’s verdict that Tryon suffers from a behavioral abnormality.
2
Although Tryon argues in a footnote in his reply brief that he does challenge the sufficiency of the
evidence to support the jury’s verdict, he explicitly reaffirms that he challenges its sufficiency “to meet the
legislatively intended statutory definitions of ‘behavioral abnormality’ as that term should be construed
according to well-settled rules of statutory construction (which should include an examination of Chapter
841’s legislative history and its legislative findings).” In other words, Tryon’s challenge is only that the
evidence does not meet his preferred construction of the statute.
13
Tryon contends that the evidence is legally insufficient to support the jury’s
finding that he has a behavioral abnormality within the meaning of the Act because
the evidence does not establish that he is an “extremely dangerous” sex offender,
which, he asserts, is the only category of sex offender to which the Act applies. We
disagree. As we have discussed, Tryon’s contention is predicated on an
interpretation of the Act that has been rejected by the Texas Supreme Court. The
Stoddard court explicitly held that the Act’s legislative findings are “not part of the
statute’s definition of ‘sexually violent predator’” and are therefore not an element
that the jury is required to consider or find. Stoddard, 619 S.W.3d at 677–78.
“A commitment proceeding under the SVP Act is the unusual civil case
incorporating the ‘beyond a reasonable doubt’ burden of proof [standard] typically
reserved for criminal cases.” Stoddard, 619 S.W.3d at 674 (citing Fisher, 164
S.W.3d at 639–41). The Texas Supreme Court observed in Stoddard that “[t]he
legal-sufficiency standard in criminal cases is consistent with the civil standard.” Id.
at 675 (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Thus, when conducting a
legal sufficiency review in a case governed by the Act, we review the evidence in
the light most favorable to the verdict to determine whether any rational factfinder
could find the elements required for commitment under the Act, beyond a reasonable
doubt. Id. Under this standard, “[i]t is the factfinder’s responsibility to fairly resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts.” In re Commitment of Cordova, 618 S.W.3d 904, 915
(Tex. App.—El Paso 2021, no pet.) (citing In re Commitment of Williams, 539
S.W.3d 429, 437 (Tex. App.—Houston [14th Dist.] 2017, no pet.)).
The State presented testimony by two experts (Dr. Dunham and
Dr. Arambula), each of whom opined that Tryon suffers from a behavioral
abnormality within the meaning of the Act. On the other hand, Tryon presented
testimony from one expert (Dr. Mauro) who opined that he did not suffer from a
14
behavioral abnormality. According to Dr. Mauro, Tryon does not have a behavioral
abnormality within the meaning of the Act because his schizophrenia is amendable
to traditional treatment modalities.
Although the experts, as expected, presented conflicting testimony concerning
whether Tryon has a behavioral abnormality within the meaning of the Act, the jury
as the factfinder is solely responsible for fairly resolving conflicts in the testimony,
weighing the evidence, and drawing reasonable inferences from basic facts to
ultimate facts. Stoddard, 619 S.W.3d at 674; Williams, 539 S.W.3d at 437. We have
reviewed the evidence in the light most favorable to the verdict, and we hold that the
jury could have found beyond a reasonable doubt that Tryon suffers from a
behavioral abnormality within the meaning of the Act. Accordingly, we overrule
Tryon’s first issue.
C. The Evidence is Factually Sufficient
Like our legal sufficiency determination, even assuming that Tryon has
properly presented a factual sufficiency challenge for our review, we hold that the
evidence is factually sufficient to support the jury’s verdict that Tryon suffers from
a behavioral abnormality.
In cases under the Act, the evidentiary standard of review for factual
sufficiency differs from the evaluation for legal sufficiency. As in a legal sufficiency
analysis, the assumption remains that the finder of fact resolved disputed evidence
in favor of its finding if a reasonable finder of fact could do so. Stoddard, 619
S.W.3d at 674. However, in a factual sufficiency analysis, disputed evidence that a
reasonable finder of fact could not have credited in favor of the finding is treated
differently. Id. at 676. Therefore, in a factual sufficiency review, we must determine
whether, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the verdict, along with undisputed facts
that do not support and are contrary to the verdict, is so significant that the factfinder
15
could not have found beyond a reasonable doubt that the statutory elements were
satisfied. Id. at 678. A reviewing court’s mere disagreement with the factfinder’s
verdict “as to the proper evidentiary weight and credibility cannot be the basis of a
reversal on factual-sufficiency grounds.” Id. at 677.
The disputed evidence in this case concerns the conflicting expert opinions
expressed by Dr. Dunham, Dr. Arambula, and Dr. Mauro of whether Tryon suffered
from a behavioral abnormality. We do not assign evidentiary weight or credibility
to the testimony of either expert; we defer to the jury on that basis. Id. Rather, we
must evaluate the entire record to determine (1) what disputed evidence, if any, the
jury could not credit in favor of the verdict and (2) whether, along with the
undisputed facts that are contrary to the verdict, the disputed evidence is so
significant that the factfinder could not have concluded that the Act’s requirements
were satisfied beyond a reasonable doubt. Id. at 678. Here, Tryon asserts that his
schizophrenia, if treated with proper medications, is an undisputed fact that is
contrary to the jury’s verdict. But the Act does not make exceptions for
schizophrenia or any other mental illness on this basis. See Williams, 539 S.W.3d
at 438. The State concedes that Tryon’s advanced age is an undisputed fact that is
contrary to the jury’s verdict. Nevertheless, this undisputed fact, standing alone, is
not enough to require a reversal of the jury’s verdict. Further, Dr. Dunham explained
that, in this case, Tryon’s advanced age is not a protective factor.
We have reviewed the entire record in accordance with the applicable standard
of review. In doing so, we hold that Dr. Mauro’s opinion (the disputed evidence),
combined with Tryon’s advanced age (the undisputed fact contrary to the verdict),
is not so significant that the jury could not have found beyond a reasonable doubt
that Tryon suffers from a behavioral abnormality. Accordingly, we overrule Tryon’s
second issue.
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D. Chapter 841 (the Act) is Constitutional
In his third issue, Tryon presents both a facial and as-applied challenge to the
constitutionality of the Act. As the corollary to his sufficiency theories, Tryon
essentially contends that, if we reject his interpretation of the statute (as we must),
the Act is necessarily unconstitutional. For reasons already discussed, we disagree.
We have reviewed the record and have found no indication that Tryon
preserved either of his constitutional challenges for our review. See Fisher, 164
S.W.3d at 654–55; see also TEX. R. APP. P. 33.1. Absent a recognized exception,
even constitutional challenges are waived if not presented to the trial court. See
Fisher, 164 S.W. 3d at 654, 656; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003)
(applying Rule 33.1 to a facial due process challenge). Nevertheless, even if Tryon
need not have preserved this issue for our review, his challenges still fail. See Fisher,
164 S.W.3d at 654–55 & n.15.
When reviewing the constitutionality of a statute, we presume that the statute
is valid, and that the legislature was neither unreasonable nor arbitrary in enacting
it. TEX. GOV’T CODE ANN. § 311.021 (West 2013); Tenet Hosps. Ltd. v. Rivera, 445
S.W.3d 698, 701 (Tex. 2014). A facial challenge asserts that a statute, by its terms,
always operates unconstitutionally. Tenet Hosps. Ltd., 445 S.W.3d at 702 (citing
United States v. Salerno, 481 U.S. 739, 745 (1987)). An as-applied challenge asserts
that a statute, while generally constitutional, operates unconstitutionally as to the
specific claimant who raises the issue because of his particular circumstances. Id.(citing City of Corpus Christi v. Pub. Util. Comm’n of Tex., 51 S.W.3d 231, 240
(Tex. 2001)).
To prevail on his facial constitutional challenge, Tryon bears the heavy burden
of showing that the Act is unconstitutional in every possible application. Fisher,
164 S.W.3d at 655 (citing Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455
U.S. 489, 494–95 (1982)). As noted above, Tryon contends that the Act’s
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“behavioral abnormality” element violates the due process rights of all persons who
are committed under the Act. According to Tryon, the Act violates due process
because the challenged statutory language does not sufficiently limit the
applicability of the Act. See HEALTH & SAFETY § 841.003(a)(2); Stoddard, 619
S.W.3d at 678. But, and as we have discussed, Tryon’s preferred construction of the
Act has been clearly rejected by the Texas Supreme Court. See Stoddard, 619
S.W.3d at 677–78.
Tryon raises the same concern in his as-applied challenge; he reiterates that if
“behavioral abnormality” means simply that a person is “likely” or has some
“likelihood” to offend, as the Texas Supreme Court has held, the Act is
unconstitutional, both facially and as applied to his case. Because the court in
Stoddard rejected the very arguments and challenges that Tryon raises here, so do
we. Accordingly, we overrule Tryon’s third issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
August 25, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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