In Re: The Commitment of Jeffrey Parkinson v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00275-CV
___________________________
IN RE: THE COMMITMENT OF JEFFREY PARKINSON
On Appeal from the 158th District Court
Denton County, Texas
Trial Court No. 21-6836-158
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant Jeffrey Parkinson challenges his civil commitment as a sexually
violent predator (SVP). See generally Tex. Health & Safety Code Ann. ch. 841 (the SVP
Act). Parkinson raises two issues in which he argues that the trial court erred by
sustaining the State’s objection during his cross-examination of the State’s expert
witness and in sustaining the State’s objection during his closing argument. Because
we find that the trial court did not err by sustaining each of the complained-of
objections, we will affirm.
II. Factual and Procedural Background
In 2005, when Parkinson was a juvenile, he was adjudicated as a delinquent and
placed on probation for two years after the trial court found that he had committed
the offense of sexual assault. In 2018, Parkinson pleaded guilty to two counts of the
offense of indecency with a child and was sentenced to six years’ confinement.
In 2021, before his scheduled release date of March 20, 2023, the State filed a
petition alleging that Parkinson is an SVP and requesting that he be committed for
treatment and supervision pursuant to the SVP Act. A trial began on May 2, 2022,
and two witnesses testified: Parkinson and the State’s expert, Dr. Kyle Clayton, a
psychologist who evaluated Parkinson. Dr. Clayton testified that he has a master’s
degree and a Ph.D. in clinical psychology and was on the faculty of UT Southwestern
as part of the psychiatry residency program. His board certification was in forensic
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psychology, which is an “application of psychology to issues of the law.” The jury
found beyond a reasonable doubt that Parkinson is an SVP. The trial court then
ordered Parkinson civilly committed in accordance with Section 841.081 of the Texas
Health and Safety Code. See id. § 841.081. This appeal followed.
Parkinson does not challenge the sufficiency of the evidence to support the
jury’s finding that he is an SVP. Therefore, we will give only a brief summary of the
evidence at trial.
A. Parkinson’s Testimony
Parkinson described his childhood as typical but admitted that he had some
problems with authority. Parkinson acknowledged that he has struggled with
substance abuse since he was young, but he had never had any substance abuse
treatment.
Parkinson testified that he committed his first sexual offense when he was 13
years old. He was adjudicated as a delinquent and placed on probation for sexually
assaulting a 6-year-old girl while at his step-father’s company party. Parkinson
violated the terms of his probation when he committed another sexual offense against
a child and was sent to the Texas Youth Commission (TYC) where he was required to
undergo sex offender treatment. But he was kicked out of the program for lack of
progress. Parkinson was released from TYC when he was 16 years old.
Parkinson is currently incarcerated for committing offenses against his
11-year-old cousin. Parkinson was 23 years old at the time of the offenses. Parkinson
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stated that he was “under the influence” at the time of the offenses and does not
remember many of the details. Parkinson testified that he is not attracted to underage
girls and that when released he will not be around any children other than his son.
Parkinson had been diagnosed with ADHD and bipolar disorder, and he took
medication for schizophrenia. He agreed that he could benefit from further sex
offender treatment, stating, “I feel like I might still have some flaws and just need to
be tweaked.”
B. Dr. Clayton’s Testimony
According to Dr. Clayton, in conducting civil commitment evaluations, he
reviews the records related to the individual, interviews the individual, and also
conducts testing and reviews the results to evaluate the individual’s risk of
reoffending. Dr. Clayton testified that the methodology he uses accords with his
training as a forensic psychologist and is within the accepted standards in the field of
forensic psychology. Dr. Clayton discussed each of Parkinson’s sexual offenses and
stated that he relied on those facts in conducting his behavioral evaluation.
Based upon his evaluation, Dr. Clayton diagnosed Parkinson with exhibitionist
disorder, pedophilic disorder, alcohol and substance abuse disorder, and a personality
disorder that includes both antisocial and borderline personality features. Dr. Clayton
opined that Parkinson suffers from a behavioral abnormality that makes him likely to
engage in predatory acts of sexual violence.
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III. Law on Civil Commitment
A person is an SVP 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). A behavioral abnormality is: “a
congenital or acquired condition that, by affecting a person’s emotional or volitional
capacity, predisposes the person to commit a sexually violent offense, to the extent
that the person becomes a menace to the health and safety of another person.” Id.
§ 841.002(2). A “predatory act” is “an act directed toward individuals, including
family members, for the primary purpose of victimization.” Id. § 841.002(5).
IV. Cross-Examination
In his first issue, Parkinson argues that the trial court erred by sustaining the
State’s objection during the cross-examination of Dr. Clayton regarding potential
motivation for sex offending behavior.1 The trial court did not abuse its discretion
when it sustained the State’s objection to the proposed cross-examination; the
proposed line of cross-examination mischaracterized the proof necessary to establish
that Parkinson suffered from a behavioral abnormality.
1
The State contends that Parkinson has not preserved this issue for appellate
review because he did not make an offer of proof showing the evidence he desired to
admit. However, after the State’s objection, there was extensive argument on the
evidence Parkinson desired to be admitted. The discussion on the objection
adequately fleshed out what Parkinson’s counsel wanted to elicit in cross-examination.
See In re Commitment of Smith, 422 S.W.3d 802, 808–09 (Tex. App.—Beaumont 2014,
pet. denied); Chance v. Chance, 911 S.W.2d 40, 52 (Tex. App.—Beaumont 1995, writ
denied).
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A. Standard of Review
A trial court’s rulings admitting or excluding evidence are reviewable under an
abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338,
347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if
there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if the court
acts without reference to any guiding rules or principles, that is, if the act is arbitrary
or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).
B. Dr. Clayton’s Testimony
During the cross-examination, Parkinson questioned Dr. Clayton on the Risk
of Sexual Violence Protocol (RSVP) assessment tool. Parkinson noted that there
were areas of the RSVP that Dr. Clayton did not complete. Dr. Clayton explained
that he did not complete those sections because he was not developing a treatment
plan for Parkinson. One of the areas not completed by Dr. Clayton concerned the
motivating factor for sexual offending behavior. Parkinson asked, “And our - - the
law that we’re looking at has a definition for predatory act that is the primary purpose
of victimization?” Dr. Clayton responded “yes” and again stated that he assessed
motivation in his evaluation of Parkinson but did not fill out that portion of the RSVP
because he was not developing a treatment plan for Parkinson.
Parkinson then asked Dr. Clayton to opine, as a forensic psychologist, what the
motivating factor would be for somebody to commit a sexual offense. Dr. Clayton
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responded that it can be different things for different people. Parkinson then asked,
“And our - - our law says an act done for the primary purpose of victimization.” The
State objected that it was a mischaracterization of the law, and, after arguments from
counsel, the trial court sustained the objection.
C. Analysis
Parkinson argued to the trial court that it was for the jury to decide whether the
primary purpose is for victimization. Parkinson contends that the trial court denied
him the ability to present necessary information to the jury as to how Dr. Clayton
came to the conclusion that Parkinson’s primary purpose was victimization and had
no other motivating factors.
However, the State did not have to separately prove Parkinson’s primary
purpose was victimization and had no other motivating factors. Our court and others
have dealt with Parkinson’s argument in the context of a sufficiency challenge.
Recently, we dealt with a sufficiency challenge predicated on the State’s alleged failure
to prove whether a defendant suffered from a behavioral abnormality because the
State “presented no evidence that [the alleged SVP] would commit an act directed
toward individuals ‘for the primary purpose of victimization’ and thus no evidence
that he is likely to engage in predatory behavior.” In re Commitment of Hayes, No. 02-
18-00018-CV, 2018 WL 4627064, at *3 (Tex. App.—Fort Worth Sept. 27, 2018, no
pet.) (mem. op.). In Hayes, we explained in detail why the argument revealed a
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misunderstanding of the State’s burden to prove that a defendant suffers from a
behavioral abnormality:
[Appellant] misunderstands the State’s burden. The Houston 14th Court
of Appeals addressed this issue last year. See In re Commitment of Harris,
541 S.W.3d 322, 328–29 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). The Houston court considered the Texas Supreme Court’s
opinion in In re Commitment of Bohannan, which reversed a Beaumont
Court of Appeals decision bisecting the definition of behavioral
abnormality into two separate, required components: “[1] an acquired or
congenital condition, and [2] a predisposition to commit a sexually
violent offense.” 388 S.W.3d 296, 302 (Tex. 2012). The Supreme Court
explained that this bisecting misconstrued the statute because “[t]he
required condition is the predisposition.” Id. at 302. Thus,
[t]he definition [of behavioral abnormality] might more
clearly be written:
“Behavioral abnormality” means 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.
The condition and predisposition cannot be separate
things.
Id. at 303.
Based on that opinion, the Houston Court of Appeals held in
Harris that “evidence of a person’s predisposition to commit a sexually
violent offense to the extent that he becomes a menace to the health and
safety of another person is sufficient to show that the person is likely to
engage in a predatory act of sexual violence for the primary purpose of
victimization.” Harris, 541 S.W.3d at 329; see also In re Commitment of
Sternadel, No. 14-17-00051-CV, 2018 WL 1802151, at *4 (Tex. App.—
Houston [14th Dist.] Apr. 17, 2018, no pet.) (mem. op.) (“That an act
would be ‘for the primary purpose of victimization’ is not a separate
element that must be proved.”); In re Commitment of Colantuono, 536
S.W.3d 549, 558 (Tex. App.—San Antonio 2017, no pet.) (“[I]mplicit in
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a finding that a person suffers from a behavioral abnormality is a
conclusion that the person is likely to engage in a predatory act of sexual
violence for the primary purpose of victimization[.]”); In re Commitment of
Ramirez, No. 09-13-00176-CV, 2013 WL 5658597, at *2 (Tex. App.—
Beaumont 2013, no pet.) (mem. op.) (same). We agree. Accordingly, the
State did not need to specifically bring up and address the “primary
purpose” definition of an SVP to prove that [Appellant] is an SVP. The
evidence was sufficient if it showed that [Appellant] is predisposed to
commit a sexually violent offense, to the extent that he is a menace to
the health and safety of another person. See Bohannan, 388 S.W.3d at
303; Harris, 541 S.W.3d at 329.
Id.; see also In re Commitment of K.S., 622 S.W.3d 569, 574–75 (Tex. App.—Waco 2021,
no pet.) (cataloguing opinions in which Texas courts have held that a conclusion that
a person is likely to engage in a predatory act of sexual violence directed towards
individuals for the primary purpose of victimization “is implicit in the finding that a
person has a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence”).
Here, Parkinson is attempting to wire into his cross-examination the suggestion
that the State bore the burden to establish his purpose was to victimize. But as we
and other courts have explained, the topic that Parkinson sought to delve into on
cross is irrelevant—that topic inquired about an element of proof that the State does
not bear to establish that a defendant suffers from a behavioral abnormality. See
Merrifield v. Seyferth, 408 S.W.2d 558, 560 (Tex. App.—Dallas 1966, no writ)
(“Although wide latitude is allowed a party to cross-examine an adverse witness in
order to show interest, bias, or prejudice to affect his credibility, and the only
limitation is that of relevancy, . . . this valuable right is subject to that limitation and
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‘confers no right upon a litigant to examine a witness upon matters which are
irrelevant and immaterial.’”); Shelby v. James, No. 02-20-00052-CV, 2021 WL 4319706,
at *5 (Tex. App.—Fort Worth Sept. 23, 2021, no pet.) (mem. op.) (quoting Merrifield).
Because the State did not have to prove Parkinson’s primary purpose in committing
the offenses, Parkinson was not denied the opportunity to present necessary
information to the jury. Dr. Clayton testified extensively on how he formed his
opinion that Parkinson suffers from a behavioral abnormality, and Parkinson was able
to cross-examine Dr. Clayton on his methods in forming that opinion. Because the
trial court did not abuse its discretion by sustaining the State’s objection on
Parkinson’s cross-examination of Dr. Clayton, we overrule the first issue.
V. Closing Argument
In his second issue, Parkinson argues that the trial court erred by sustaining the
State’s objection during closing argument and preventing him from presenting a
particular jury argument. During his closing argument, Parkinson stated,
Predatory act. An act directed toward individuals for the primary
purpose of victimization. Now, the charge that you just received, or you
will receive but was read to you, says if the judge gives you - - if the
judge gives you a definition, you consider it a proper legal definition.
Predatory act for the primary purpose of victimization is - -
The State objected that the argument was a mischaracterization of the law and argued
that it is a unified issue. The trial court sustained the objection.
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A. Standard of Review
Rule 269 provides that arguments on questions of law shall be addressed to the
court. Tex. R. Civ. P. 269(d). Arguments on the facts should be addressed to the
jury, and counsel is required to confine the argument strictly to the evidence and to
the arguments of opposing counsel. Tex. R. Civ. P. 269(e); see Tex. Sand Co. v. Shield,
381 S.W.2d 48, 57–58 (Tex. 1964). The duty rests with the trial court to supervise and
properly limit the scope of counsel’s argument. See City of Dallas v. Andrews, 236
S.W.2d 609, 613 (Tex. 1951). Thus, a reviewing court will not interfere with the trial
court’s duty unless it is clear that the trial court abused its discretion. In re
Guardianship of Dahl, 590 S.W.2d 191, 199 (Tex. App.—Amarillo 1979, writ ref’d
n.r.e.); see In re C.J.B., 137 S.W.3d 814, 826 (Tex. App.—Waco 2004, no pet.).
B. Analysis
The jury was asked to determine whether Parkinson is an SVP as defined by
factors in Section 841.002 and Section 841.003.
Parkinson contends that the jury, as factfinder, must determine whether the act
was committed for the “primary purpose of victimization.” See Tex. Health & Safety
Code Ann. § 841.002(5). As a result, he argues he was entitled to argue to the jury
that Dr. Clayton’s definition of predatory act was not a proper legal definition and
that Parkinson’s primary purpose or motivating factor may not have been for the
purpose of victimization.
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As previously stated, the State did not have to prove the primary purpose of
victimization as a separate element. Hayes, 2018 WL 4627064, at *3. Whether a
person suffers from a behavioral abnormality that makes a person likely to engage in a
predatory act of sexual violence is a single, unified issue. Bohannon, 388 S.W.3d at 303.
Therefore, the jury was not required to determine Parkinson’s primary purpose or
motivation separate and apart from finding that he suffered from a behavioral
abnormality. Parkinson was not entitled to present an argument to the jury requiring
a separate finding on the motivation or purpose of victimization.
Parkinson also argues that Dr. Clayton’s definition of predatory act presented
to the jury was not a proper legal definition and that he was entitled to make a fair,
legal argument defining predatory act. Arguments on questions of law are to be
addressed to the court. Tex. R. Civ. P. 269(d). The jury was properly instructed on
the law for finding Parkinson to be a sexually violent predator, including the
definition of predatory act. Absent record evidence to the contrary, we presume that
the jury followed the court’s instructions. See Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 771 (Tex. 2003).
During closing argument, Parkinson scrutinized Dr. Clayton’s testimony and
questioned his ability to testify about a legal definition. Parkinson argued to the jury
that the State could not prove beyond a reasonable doubt that he was an SVP.
Parkinson was not prevented from making an argument to the jury that he was
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entitled to make. We find that the trial court did not abuse its discretion by sustaining
the State’s objection to Parkinson’s argument. We overrule the second issue.
VI. Conclusion
Having overruled Parkinson’s two issues on appeal, we affirm the trial court’s
civil commitment order.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: April 6, 2023
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