In Re Commitment of Lonnie Clemont Encalade v. the State of Texas ( 2023 )

Opinion issued June 22, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00278-CV
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IN RE COMMITMENT OF LONNIE CLEMONT ENCALADE
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 0749423Z
MEMORANDUM OPINION
In this civil commitment proceeding, the State petitioned to have appellant
Lonnie Clemont Encalade declared a sexually violent predator under Texas Civil
Commitment of Sexual Violent Predators Act (the SVP Act). See TEX. HEALTH &
SAFETY CODE § 841.001–.153. After a jury found beyond a reasonable doubt that
Encalade was a sexually violent predator, the trial court signed a final judgment and
entered an order of civil commitment.
In five issues, Encalade argues: (1) Texas’s civil commitment statutes do not
comply with due process, (2) the trial court erred in excluding evidence under Texas
Rule of Evidence 705, (3) the trial court abused its discretion by prohibiting
Encalade’s expert from testifying, (4) the evidence is legally insufficient to support
a finding beyond a reasonable doubt that Encalade is a sexually violent predator, and
(5) the evidence is factually insufficient to support a finding beyond a reasonable
doubt that Encalade is a sexually violent predator.
We affirm.
Background
In October 1977, Encalade was convicted of rape of a child and sentenced to
five years imprisonment. In August 1997, Encalade was convicted of sexual assault
of a child and sentenced to 25 years imprisonment. Encalade’s sentence discharge
date was April 5, 2022.
In July 2020, in advance of Encalade’s discharge date, and noting that
Encalade was pending entry into the Texas Department of Criminal Justice (TDCJ)
Sex Offender Treatment Program, which could result in his release on parole prior
to his sentence discharge date, the State petitioned to have Encalade declared a
sexually violent predator under the SVP Act. The State alleged that Encalade was a
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repeat sexually violent offender and that he suffered from a behavioral abnormality
that made him likely to engage in a predatory act of sexual violence.
A few months after filing its petition, the State moved for a judicial
admonishment and for an order directing Encalade to participate in an expert
evaluation, as required by Section 841.061(c) of the Texas Health and Safety Code.
See TEX. HEALTH & SAFETY CODE § 841.061(c) (“The person and the state are each
entitled to an immediate clinical interview of the person by an expert.”). In its
motion, the State contended that an expert evaluation of Encalade on behalf of the
State was scheduled on December 28, 2020, via telehealth video conference at
Encalade’s TDCJ unit, but Encalade refused to participate. His evaluation was
rescheduled for January 20, 2021. The State requested that the trial court schedule a
hearing, compel Encalade’s attendance at the hearing, and admonish Encalade of the
consequences of his refusal to participate in an expert examination on behalf of the
State. The trial court signed a written order on January 19, 2021, ordering Encalade
to participate in an expert evaluation by Dr. Darrel Turner, the State’s designated
expert, the following day, January 20, and to comply with “all discovery requests
allowed under the law.” Encalade refused to participate in the January 20 evaluation
by Dr. Turner.
On February 8, Encalade’s counsel moved to withdraw as counsel, citing an
“insurmountable but voluntary (on [Encalade’s] part) cutoff in attorney-client
3
communications.” According to counsel’s motion to withdraw, Encalade had
“declined to accept telephone calls or written correspondence” from his counsel
since December 1, 2020 and directed staff at his TDCJ unit to tell his counsel “he’s
fired.” The trial court denied the motion to withdraw. Additional counsel made an
appearance on behalf of Encalade, but counsel continued to have communication
issues with Encalade.1 Accordingly, the parties agreed to postpone Encalade’s
deposition to July 19. On July 12, Encalade indicated his refusal to appear at the July
19 deposition, and the State canceled his deposition noticed for that date. 2
On July 29, the State moved to strike Encalade’s original answer and proceed
on a judgment nihil dicit.3 The State argued that Encalade has “repeatedly indicated
by words and actions that he will not participate in expert evaluations or civil
discovery,” and therefore, the State requested that the trial court strike Encalade’s
answer, enter a judgment nihil dicit, and:
1
Encalade’s counsel stated in a June 24 email to the State that Encalade was not
communicating with her “at all,” and indicated that more time was needed to
schedule his deposition and that it was possible intervention from the trial court
would be necessary.
2
The State had previously noticed Encalade’s deposition for March 26, 2021, but
canceled that deposition.
3
A judgment nihil dicit “is an abandonment of every known defense or any defense
which ordinary diligence could have disclosed.” Sharif v. Par Tech, Inc., 135
S.W.3d 869, 872 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
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• Instruct the jury that it could use Encalade’s refusal to participate in
expert examinations as evidence against him;
• Prohibit Encalade from presenting any evidence at trial, including
evidence from his retained expert Dr. Marissa Mauro;
• Prohibit Encalade from cross-examining the State’s experts because
doing so would allow Encalade to raise a defense.
The State noticed Encalade’s deposition for August 16, but Encalade refused
to participate.4 Thereafter, the State filed a motion to compel discovery responses
and Encalade’s appearance at a deposition, citing the above as evidence of
Encalade’s refusal to participate in the discovery process. The State also amended
its motion to strike.
On October 22, 2021, the trial court granted the State’s motion to compel and
ordered Encalade “to participate in the discovery process, to include submitting
himself for a deposition and responding to discovery requests made by the [State].”
The trial court further warned Encalade that the failure “to answer a question at
deposition as directed by this Court . . . may be considered a contempt of Court.”
4
There is some discrepancy in the record as to whether Encalade was aware that he
was being summoned to a deposition on August 24, as opposed to a court hearing.
At the deposition, an officer from Encalade’s TDCJ unit stated that she had
informed Encalade that he had “a Zoom meeting . . . a court hearing . . . and he
needed to go.” But that he “refused multiple times.” Encalade’s counsel confirmed
with the officer that she “summoned [Encalade] to a court hearing and not a
deposition.” However, Encalade’s counsel also stated for the record that he received
the notice of the deposition on August 16, forwarded it to Encalade on August 18,
and under the mailbox rule, it was presumed that Encalade received the deposition
notice on August 23.
5
On February 1, 2022, the State noticed Encalade’s deposition for February 15.
Encalade again failed to appear.
After Encalade failed to appear at his scheduled February deposition, the State
filed its second amended motion to strike his original answer and proceed on a
judgment nihil dicit. In it, the State argued that under Section 841.061 of the Texas
Health and Safety Code, Encalade was required to submit to all expert examinations
and that, if he fails to do so, that statute authorizes statutory sanctions. The State also
alleged that Encalade violated Texas Rule of Civil Procedure 199 by refusing to sit
for a deposition. Accordingly, the State sought sanctions under Section 841.016 and
Rule 215.2 of the Texas Rules of Civil Procedure.
In his response, Encalade argued that the death penalty sanctions sought by
the State were not supported by the record because the State could not show that
Encalade had engaged in the kind of egregious and blatant disregard for the
discovery process to justify the imposition of death penalty sanctions. Encalade also
argued that imposing these sanctions would be improper as there had not been any
previous intervention by the trial court. He also argued that Section 841.061(f)
sanctions were not appropriate because they prevent a person from gaining an
advantage by refusing to submit to a clinical interview or examination by the State’s
expert, but fully participating in one performed by his own expert. Here, Encalade
had refused to be interviewed by any expert—the State’s or his own—and thus had
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no advantage over the State. Finally, Encalade argued that the sanctions authorized
by Rule 215.2, including disallowing him to support or oppose designated claims or
offenses, or prohibiting the introduction of evidence, conflict with Chapter 841.
On February 24, the trial court entered an order for trial sanctions. In the order,
the trial court noted that Encalade had “been given multiple opportunities, yet has
steadfastly refused to submit to expert examinations and to participate in discovery
as ordered by this court.” Accordingly, the trial court imposed the following
sanctions:
A jury instruction will be given that states [Encalade’s] refusal
to submit to expert examinations may be used as evidence that
[Encalade] has a behavioral abnormality that predisposes him to
commit a predatory act of sexual violence. [Encalade] is prohibited
from offering evidence [of] the results of an expert examination
performed on [his] behalf at trial.
The case proceeded to trial on February 25 and the jury heard from two
witnesses: Dr. Turner and, briefly, Encalade.
A. Dr. Turner
At trial, Dr. Turner, a clinical psychologist who specializes in forensic
psychology, testified as an expert for the State. He began by discussing his
qualifications to handle civil-commitment cases, including his doctoral education on
the subject, his published research, his treatment of sex offenders, and his experience
in performing between 360-400 behavioral-abnormality evaluations since 2013. Dr.
Turner testified he employs a clinically adjusted actuarial approach when performing
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these evaluations. He explained that first he reviews records related to the offender’s
history to prepare for an in-person evaluation. He then scores some psychological
instruments that help him make his ultimate decision and sometimes writes a report
and provides his ultimate opinion.
In this case, Dr. Turner explained that he began his evaluation of Encalade by
reviewing numerous records received from the TDCJ, as well as the Special
Prosecution Unit, which included “[r]ecords related to [his] offenses, court
documents, police investigation documents, records that relate to how he’s gotten
along in prison, what his behavior has been like in prison, any interviews he might
have done for parole or with other psychologies, medical records, things of that
nature related to his criminal history, and then also social history.” He testified that
the records he reviewed here are the same type of records typically reviewed and
relied upon by experts in his field. Dr. Turner testified that, typically, when he
conducts a behavioral abnormality evaluation, he meets with the offender. He
explained that the rules of ethics applicable to forensic psychologists require the
psychologist to, “if at all possible, interview the person that you are evaluating and
coming to some kind of conclusion about.”
Here, however, he testified that he tried to meet with Encalade on several
occasions, including once before he was hired by the State. Dr. Turner testified that
although Encalade was required to participate in the evaluations, Encalade refused
8
to meet with him. Dr. Turner further explained that when an offender refuses to meet
with him, he considers “[e]verything that is in the records . . . [in] an effort to see if
[he] can answer any of the questions that [he] would’ve asked [the offender] related
to his offenses – how he thinks about them now, et cetera – from the records.” As a
result, Dr. Turner based his assessment on the historical records he received related
to Encalade. Even though Encalade refused to meet with him, Dr. Turner testified
that his evaluation was conducted in accordance with his training as a psychologist
and in accordance with the acceptable standards within the field of forensic
psychology, and that he was still able to make an opinion in this case to a reasonable
degree of clinical certainty. He explained that, in the past, he had conducted an
evaluation where the person refused to meet with him, which resulted in him not
having enough information to offer an opinion. But that was not the case here.
1. Sexual Offending History
Dr. Turner testified that Encalade has been convicted of and served two prison
sentences for sexual offenses. The first was a 1977 conviction for rape of a child.
This offense occurred when Encalade was 17 years old. According to the records Dr.
Turner reviewed, Encalade approached a 14-year-old girl, a stranger, at a park, took
her against her will from Houston to Galveston, threatened her with a gun, made
comments that he was going to “blow her head off”, and raped her multiple times.
Encalade made various statements related to this offense in the records reviewed by
9
Dr. Turner, including claiming that he and the victim knew each other, that she went
willingly with him, denying that he used a weapon, making threats, or forcing her in
any way. Encalade also claimed she was a prostitute, which was contradicted by the
medical assessment provided by the victim’s mother, which indicated this was the
first time the victim had had sex and that it was uncharacteristic of the victim to stay
out late and not come home. Dr. Turner testified that Encalade had never taken
responsibility for this offense.
Dr. Turner testified that, from this offense, he considered there to be several
risk factors. First, the victim was 14, which is “quite different from someone that’s
17 and 16.” Additionally, the “fact that a weapon was brandished and used; the fact
that she was taken against her will; the fact that she was raped multiple times – she
was actually raped on three occasions that night[;] . . . the fact that the offender has
reported that he was intoxicated on marijuana and alcohol at the time; the fact that
he has degraded the victim – calling her a prostitute, blaming her . . . those are all
risk factors that, according to research . . . increases risk of reoffending.” The fact
that the victim was also a stranger is a risk factor.
Encalade’s second sexual assault offense occurred in 1995 against Encalade’s
daughter. His daughter reported that Encalade began sexual molesting her when she
was 12 and that the abuse continued for four years until she was 16. He would come
into her room where she was sleeping and fondle her genitals. She reported that
10
Encalade would be naked sometimes, other times he would just have his penis
exposed and would masturbate while he touched her. Eventually, Encalade did
penetrate her sexually. Encalade’s daughter also reported that he punched her on
several occasions when she began making noises to alert her mother during the
abuse. At the time he was sexually offending against his daughter, Encalade was on
probation for the offense of possession of marijuana.
Dr. Turner testified that, from this offense, there were additional risk factors
he considered. First, the victim was his daughter, who is a related victim. Dr. Turner
explained that there are three main victim categories to consider in risk assessment:
strangers, related victims, and acquaintances. The first victim was a stranger, “[s]o
now he has another type of victim. We know that he’s willing to offend against
strangers; we know that he’s willing to offend inside his family[.]” Dr. Turner further
expanded on the additional risk factors:
We know that he’s willing to offend while there are other people
in the home, which is a level of brazenness that is going to speak to his
degree of antisociality. He admitted to being intoxicated at the time of
this offense, as well, which we also know to be a risk factor. And just
in general terms, having been punished for a sexual offense previously
and then committing another sexual offense is called “persistence after
punishment”; and especially in behavioral abnormality evaluation, it is
a very important risk factor.
Dr. Turner explained that reoffending after punishment is an important risk factor to
consider because “[i]t gets to the guts of this law and this evaluation, which speaks
11
to volitional control because of sexual deviant urges. We have seen this in his past
now, and that is rare among sex offenders. . . . Most sex offenders have one offense.”
On cross-examination, Dr. Turner admitted that incest offenders have a lower
rate of reoffending.
2. Sexual Deviancy
Dr. Turner testified that when evaluating someone for a behavioral
abnormality, he looks for aspects and factors in their life that can make a sexual
offender more likely to reoffend. According to research, the two biggest factors for
reoffending are evidence of sexual deviance and antisociality. Dr. Turner testified
that sexual deviance “refers to a sexual interest or act that victimizes, or would
require victimizing, someone else in order to fulfill.” He explained that sexual
deviance is relevant to determining whether someone has a behavioral abnormality
because that looks at whether “there [is] something going on with this individual that
makes them likely to reoffend . . . [s]o we look at what we know are risk factors that
research has shown will increase their likelihood of reoffending, and one of the big
two is sexual deviance.” Dr. Turner testified that a behavioral abnormality is a
condition “that makes this sex offender have serious difficulty controlling their
behaviors, controlling their emotions that arise because of sexual deviance, and
they’re likely to act on it because they are antisocial enough to not be anchored down
by remorse or empathy, things of that nature.”
12
Dr. Turner testified that he found Encalade was sexually deviant. He
recognized that Encalade’s case was “somewhat different than most of the
behavioral abnormality cases” in that “in a lot of cases, if there are all adult victims
and it’s a serial rapist, we may see evidence of sadism” or “[i]f the victims are all . . .
children, and we would look at pedophilia as a sexual deviance.” Dr. Turner
explained that the victims here were 14 and 12, so Encalade did not fit the definition
of pedophilia or specifically having an attraction to violence involved in sadism, but
he still believed Encalade to be sexually deviant because he “is so antisocial that he
takes sex when he wants it, when the opportunity presents itself, with no []regard for
the victim in any capacity.” Dr. Turner testified that Encalade was “someone who
has offended, been punished, reoffended in a sexual nature with minors, and done
that because he feels entitled and because he isn’t bogged down by empathy.” He
explained that the law does not require that someone have a “DSM diagnosis such
as pedophilic disorder or sexual sadism” to be found to be sexually deviant. He
further testified that sexual deviance does not go away, as sexual interests are chronic
and lifelong.
3. Antisocial
Dr. Turner testified that he initially diagnosed Encalade with antisocial
personality disorder, with a provisional qualification, meaning at the time he made
the diagnosis he did not feel he had enough information about his childhood
13
behaviors to make a full personality disorder diagnosis. He explained that for
someone to have a full diagnosis of antisocial personality disorder, he needs to have
a conduct disorder as a child. Upon further review of the information contained in
the records about Encalade’s childhood conduct, Dr. Turner testified that at that
point he was comfortable making a full diagnosis of antisocial personality disorder.
Dr. Turner testified that an antisocial personality is someone who, because of
conditions and characteristics in their personality, such as feeling like they are
“entitled, having problems with authority, not caring about the rights or the well-
being of other people, pathological lying, having no empathy for pain in other
people,” tends to engage in criminal behavior. He testified that there were multiple
places in the record that indicated Encalade started acting out and using drugs as
early as 10, including evidence that he was stopped by police for shoplifting when
he was 10 years old. Encalade also stated that he dropped out of high school to sell
drugs to help his family. On cross-examination, Dr. Turner admitted that he could
not pinpoint to a page of the record where he found this evidence but agreed it could
have been from the MHMR report where the evaluator found him to be malingering
with respect to a competency evaluation. Dr. Turner confirmed that the drug use at
10 would have been a self-report, because Encalade was not arrested at that time.
Dr. Turner considered Encalade’s overall criminal history, discussed in more
detail below, as evidence of his antisocial personality disorder. He explained that
14
many individuals with antisocial personality disorder are impulsive and do not plan
or consider the consequences of their actions. This is evidenced by the repeated
criminal behavior seen in Encalade’s criminal history.
Additionally, Dr. Turner testified that there was evidence that Encalade was
manipulative. He explained that people with antisocial personality disorder are good
at reading people and determining weaknesses, and often, you will see people with
antisocial personality disorder who are manipulative and conning in nature, in order
to get what they want. Encalade’s records indicate that he had a previous diagnosis
of schizophrenic disorder, but Dr. Turner testified that he believed that was
something Encalade malingered, or essentially, faked when he was in trouble when
he was in his mid-30s. One of Encalade’s evaluators indicated that he was likely
malingering, and Dr. Turner confirmed that it would be unlikely, or rare, for
someone to be diagnosed with schizophrenia into their 30s. Dr. Turner explained
that in the prison system, people usually malinger mental illnesses to get cells to
themselves, lighter work, or other “secondary gains” as a result of the mental illness.
Dr. Turner testified that either if Encalade was accurately diagnosed with
schizophrenia or he was malingering, this would be a risk factor.
4. Actuarial Instruments
As part of his assessment, Dr. Turner testified that he used an actuarial
instrument called the Static-99R, which looks at ten factors to estimate how likely a
15
sex offender is, after release, to be arrested or convicted for another sexual offense.
Dr. Turner testified that the Static-99R does not make predictions as to whether
someone will reoffend, but that it provides some initial data, “a superficial look at
the offender,” after which the evaluator should “dig and look at the rest of the factors
that we have to consider based on research.” The name “static” indicates that the
variables considered are historical and will not change.
Dr. Turner testified that although he initially scored Encalade as a four, he
ultimately scored Encalade as a two on the Static-99R. Dr. Turner explained that
Encalade was charged with kidnapping in connection with his first sex offense, but
that charge was later dismissed. Dr. Turner initially counted the kidnapping charge
as a second conviction, when it should have been only counted as one. He explained,
however, that although this changed the normative group Encalade was in, it did not
change his overall opinion related to Encalade’s risk for reoffending. Dr. Turner
testified that the overall risk of reoffending is not based on the instrument score
alone. “The Static-99 is most appropriately used and relied on if you’ve got a
gigantic group of sex offenders that you’re trying to kind of quickly categorize. But
if you’re looking at one person, there are so many risk factors and protected factors
and other things that aren’t considered by the Static-99 that best practices indicates
need to assess for whether they look at all factors considered, not just those on this
16
one instrument.” Thus, there are additional research-based factors that “absolutely
have to” be considered.
5. Other Risk Factors
Dr. Turner testified that Encalade has been incarcerated at least five separate
times for non-sexual offenses. These were primarily drug offenses, but Encalade also
had one conviction for theft. He was convicted of possession of marijuana in 1990
and sentenced to twenty years’ imprisonment. He was also convicted of delivery of
a controlled substance in 1982 and was sentenced to seven years’ imprisonment.
Both convictions occurred between the two sexual assault offenses. Encalade was
also arrested and charged with assault relating to hitting his girlfriend during a
domestic disturbance.
In addition to his criminal history, Dr. Turner testified that Encalade had been
“in trouble quite a bit” since being incarcerated. Dr. Turner testified that Encalade
had received “many” disciplinary infractions, 61 in total, some major, including for
indicating to the administration that he planned to escape. Some infractions were
also for violent behavior, including two for fighting with other inmates. Dr. Turner
stated that Encalade’s refusal to cooperate, including to sit for his deposition and his
failure to follow rules resulting in these infractions, was something Dr. Turner
considered in his evaluation. Some of these disciplinaries occurred after the COVID-
19 pandemic and some were for minor things like hoarding soap. However, Encalade
17
had over 40 disciplinaries for refusing to comply with orders, refusing to comply
with housing, and refusing to work, all before the COVID-19 pandemic.
Dr. Turner also discussed a “fairly recent” letter written by Encalade in the
last two years to prison administration about a nurse at one of the institutions. In the
letter, he indicated that he wanted to marry the nurse, and asked the hospital to handle
paperwork to allow him to marry the nurse and give his inheritance to her. He also
mentioned wanting to have babies with the nurse. There was indication in the records
that the nurse viewed this as an “unwanted communication.” Dr. Turner testified that
this letter was “concerning” because “it’s sexual; it’s inappropriate; and based on his
history, we know that there’s at least some chance of him making an effort to act on
it because he’s been willing to in the past.” On cross-examination Dr. Turner
admitted that Encalade did not proposition the nurse in any way in the letter or
mention her body, only that he would like to marry her and have children. However,
Dr. Turner felt that, in context, this letter was evidence of “inappropriate sexual
behavior by a person that is a repeat violent sexual predator that is recent in time,
and that is concerning that he would act out on those feelings[.]”
Dr. Turner testified that Encalade has not received any sex offender treatment
while in prison. Encalade requested and started the treatment, but later quit. Encalade
received disciplinary infractions for not participating in the sex offender treatment
offered to him. Dr. Turner testified that if a sex offender completes treatment and is
18
found to have done well and made good efforts, that can be a protective factor that
lowers the risk of reoffending. However, because Encalade started treatment and
then quit, it is considered “treatment failure and is actually a risk factor.” Dr. Turner
also found the fact that Encalade believes that he does not need sex offender
treatment and that it is safe for him to be around children to be concerning as it shows
a lack of insight and understanding of his “own risk picture.”
Dr. Turner also testified that Encalade has a preoccupation with sex. Encalade
has admitted to being with prostitutes and to having over 100 sexual partners “while
out in the free world,” which Dr. Turner found “significant,” especially considering
the amount of time Encalade has spent incarcerated.
Dr. Turner also testified that Encalade had reported substance and alcohol
abuse habits, which he considered to be additional risk factors. Dr. Turner testified
that throughout the records he reviewed, he saw the presence of marijuana abuse.
Encalade had “chronic multiple marijuana cigarettes a day over the years.” In
addition, he reported daily alcohol abuse or intoxication over the years; he began
huffing paint fumes; when Encalade was a child, he began using crack cocaine and
selling drugs. Dr. Turner acknowledged that at least in one place in the record,
Encalade admitted to huffing and using marijuana as young as 10, but in other places
in the records, it says 14 or 17. Dr. Turner acknowledged that these inconsistencies
came from Encalade’s own statements contained in various records. Dr. Turner
19
diagnosed Encalade with alcohol abuse disorder, severe, and cannabis use disorder,
severe, but both in full remission as there is no evidence that he has used alcohol or
marijuana since he was arrested and incarcerated in 1997. There was evidence that
while on parole or probation, Encalade continued to use substances, and that
Encalade was arrested at least five times for possession of marijuana. Dr. Turner
testified that substance abuse is a risk factor for sexual reoffending.
Dr. Turner explained that the research indicates that when a sex offender
conducts their sex offenses while under the influence of drugs, they are more likely
to be reconvicted for additional sex offenses. Additionally, Dr. Turner testified that
if the substance abuse is bad enough that it is impacting the offender’s life and
causing return trips to prison, that speaks to the offender’s degree of antisociality.
He further testified that Encalade’s admission that he does not believe he needs
substance abuse treatment in the future is concerning because, in the past, there was
at least some correlation between his substance abuse and sexual offending. “[T]o
return to free society without any intent or even seeing, having enough insight in
himself to recognize that that’s a problem and a need for treatment, is concerning.”
6. Protective Factors
Dr. Turner testified that there were some positive or protective factors in
Encalade’s favor. A protective factor is something that decreases or lowers the
offender’s risk, or it can leave it where it was without increasing the risk.
20
Dr. Turner testified that one factor that did not lower, but did not increase,
Encalade’s risk factor was that he did not have any male victims. Research indicates
that offenders with male victims are more likely to reoffend.
Dr. Turner testified that Encalade’s age—over 60—lowers his risk. According
to the research, after 60 there is a decline in acting out sexually violently. He also
testified that Encalade has received his GED, as well as some on-the-job training
and certificates in welding and horticulture while incarcerated. Dr. Turner noted that
although Encalade had received several disciplinary infractions and was involved in
the recent “staff member concern,” “he has made some effort, also, to engage in self-
help.” Dr. Turner further testified that Encalade had formulated a “basic” release
plan, indicating he understood that he will have to go to a halfway house upon release
and find a job.
Dr. Turner opined that, based on his review of all of the risk factors,
Encalade’s risk level is “quite high,” that there is evidence of a congenital or
acquired condition that has affected his emotional or volitional capacity, that this
condition has predisposed Encalade to commit predatory acts of sexual violence, that
there is evidence that Encalade is a menace to the health and safety of others, and
that there is evidence that Encalade is likely to engage in predatory acts of sexual
violence. Based on Dr. Turner’s education, training, experience, and evaluation of
Encalade’s records, he therefore concluded, based on a reasonable degree of
21
scientific certainty, that Encalade suffers from a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence.
B. Encalade
The State called Encalade to testify on the second day of trial. Outside the
presence of the jury, the trial court asked Encalade whether he intended to answer
the questions that would be posed to him, to which Encalade responded no. The trial
court admonished Encalade that they had “been down this road before” in that he
refused to participate in discovery as ordered by the court and expert evaluations
required by statute, and that if Encalade refused to answer questions, he could be
subject to contempt proceedings, including jail time and fines.
After the jury returned, the State called Encalade to the stand. Encalade
testified that he had refused to participate in court-ordered depositions and
evaluations. In response to the State’s remaining questions, Encalade “plead[ed] the
Fifth.”
Following the conclusion of evidence, the jury retired for deliberations. The
jury charge included definitions for “behavioral abnormality,” “predatory act,” and
“sexually violent predator,” and these definitions tracked the statutory language
defining these terms. See TEX. HEALTH & SAFETY CODE §§ 841.002(2), (5);
841.003(b). The sole jury question was: “Do you find beyond a reasonable doubt
22
that Lonnie Clemont Encalade is a sexually violent predator?” The jury answered
“yes” to this question.
The trial court signed a final judgment and an order civilly committing
Encalade upon his release from the TDCJ. Encalade filed a motion for new trial that
was overruled by operation of law. This appeal followed.
The SVP Act
In 1999, the Texas Legislature enacted the SVP Act to protect the public from
a “small but extremely dangerous group 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.” TEX. HEALTH & SAFETY CODE § 841.001. The Act provides for
the involuntary civil commitment, by means of outpatient treatment and supervision,
of a repeat sexual offender who is found to be a sexually violent predator. Id. §§
841.003(a), 841.081(a).
In a suit to commit a person as a sexually violent predator, the State must
prove beyond a reasonable doubt that the person is (i) a “repeat sexually violent
offender” and (ii) “suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” Id. §§ 841.003(a), 841.062(a).
A person is a repeat sexually violent offender if he has been convicted of more than
one sexually violent offense and a sentence was imposed for at least one of the
23
offenses. Id. § 841.003(b); see also id. § 841.002(8) (defining sexually violent
offense). 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).
Due Process
In his first issue, Encalade posits: “Does Texas adequately ensure that only
those who ‘have serious difficulty controlling their behavior’ are committed, and, if
not, can jury instructions facilitate compliance with Constitutional requirements?”
Encalade contends that Texas is unique among states with sexual predator laws in
that it has “no statutory or judicial mechanism that clearly indicates the level of risk
that must be present in order to civilly commit someone, hence permitting the
commitment of those who do not have serious difficulty controlling their behavior,
in violation of” Kansas v. Crane, 534 U.S. 407, 413 (2002). He argues that the SVP
Act “permits an interpretation that violates the Fifth and Fourteenth Amendments by
depriving respondents of liberty without due process of law” because it does not
include a “method to ensure that only those with serious difficulty controlling
behavior—a small, non-ordinary group of recidivists—are committed.” However,
24
“[a]side from the drastic remedy of declaring the SVP statute unconstitutional,”
Encalade asserts that courts can provide due process protection by “addressing
‘serious difficulty controlling behavior’ in the jury instructions.” Encalade proposes
four ways to ensure due process protection through jury instructions:
1. Adding language indicating that the level of predisposition or
likelihood required is such that the person has “serious difficulty
controlling behavior;”
2. Defining “likely” as “probable” and “predisposes” as “makes the
person likely to,”
3. Clarifying that “menace” means one who is a dangerous threat that must
be confined for public safety, or
4. Adding “unless confined to a secure facility” to the end of the definition
of behavioral abnormality.
Without such instructions, according to Encalade, it is possible to find that a
respondent has a behavioral abnormality on nothing more than evidence of his prior
crimes.
A. Inadequate Briefing
“An appellate brief is meant to acquaint the court with the issues in a case and
to present argument that will enable the court to decide the case.” Schied v. Merritt,
No. 01-15-00466-CV, 2016 WL 3751619, at *2 (Tex. App.—Houston [1st Dist.]
July 12, 2016, no pet.) (mem. op.) (internal quotations omitted). The Texas Rules of
Appellate Procedure control the required contents and organization of an appellant’s
brief. See TEX. R. APP. P. 38.1. “Only when we are provided with proper briefing
25
may we discharge our responsibility to review the appeal and make a decision that
disposes of the appeal one way or the other.” Bolling v. Farmers Branch Indep. Sch.
Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.); see also Roberts for
Roberts v. City of Tex. City, No. 01-21-00064-CV, 2021 WL 5702464, at *2 (Tex.
App.—Houston [1st Dist.] Dec. 2, 2021, no pet.) (mem. op.) (appellate court may
not “abandon[ ] its role as judge and assum[e] the role of advocate for a party”).
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). Despite presenting
26 pages of argument on his first issue, Encalade fails to include a single citation to
the record in these 26 pages. In addition, Encalade’s brief does not include a “clear
and concise argument” because he fails to identify the relief he sought on this issue
before the trial court and the relief he seeks on appeal. See id. Although we
determined, after conducting a review of the record below, that Encalade filed a
combined “Motion to Dismiss or to Instruct the Jury in order to Comply with Due
Process Requirements,” in his 26-page argument on appeal, he never referred to his
motion to dismiss or to his request for jury instructions (or identified what specific
jury instructions were requested), and never demonstrated how these were presented
to and ruled on by the trial court. Further, it is unclear from his argument on appeal
whether he is asking this Court to declare the SVP Act, or portions thereof,
26
unconstitutional,5 whether he is arguing that the trial court should have, but failed
to, instruct the jury in some way, or some combination of these two arguments.
Because Encalade has failed to include a single citation to the record in this first
issue, and because we cannot reasonably discern the error alleged to have been
committed by the trial court or the relief Encalade requests on appeal, we conclude
that he has waived his first issue. See TEX. R. APP. P. 38.1; Keyes Helium Co. v.
Regency Gas Servs., L.P., 393 S.W.3d 858, 861 (Tex. App.—Dallas 2012, no pet.)
(“Failure to cite to relevant portions of the record waives appellate review.”); see
also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)
(holding appellate court may use its discretion to find issues waived due to
inadequate briefing); Craaybeek v. Craaybeek, No. 02-20-00080-CV, 2021 WL
1803652, at *5 (Tex. App.—Fort Worth May 6, 2021, pet. denied) (mem. op.)
(holding that appellant’s brief failed to include record and case citations and legal
analysis and that these “deficiencies prevent[ed] [the court] from discerning the
issues Appellant intended to raise for [the court’s] review or the relief he sought—
much less the legal and factual support for his arguments”); Canton-Carter v. Baylor
5
It is equally unclear whether a constitutional challenge, if in fact one is being raised,
is a facial challenge or an as applied challenge. See Tenet Hosps. Ltd. v. Rivera, 445
S.W.3d 698, 702 (Tex. 2014) (“A facial challenge claims that a statute, by its terms,
always operates unconstitutionally. By contrast, an as-applied challenge asserts that
a statute, while generally constitutional, operates unconstitutionally as to the
claimant because of her particular circumstances.” (citations omitted)).
27
Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(advising that “[i]t would be inappropriate for [an appellate] court to speculate as to
what appellant may have intended to raise as an error by the trial court on appeal”
because doing so forces appellate court to “stray from [its] role as a neutral
adjudicator and become an advocate for appellant”).
B. Preservation
Even if not waived by failure to adequately brief the issue, Encalade did not
preserve his first issue, and we may not review this argument on appeal. See Fed.
Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) (“When a party fails
to preserve error in the trial court or waives an argument on appeal, an appellate
court may not consider the unpreserved or waived issue.”); see also TEX. R. APP.
P.33.1. Encalade’s focus6 in his first issue appears to be on the lack of jury
instructions to ensure compliance with due process requirements.7 As noted above,
6
Although Encalade includes some comparative analysis between Texas’s SVP
statutory scheme and several other states with similar statutes, he expressly states
that “[a]side from the drastic remedy of declaring the SVP Statute unconstitutional,
Due Process protection can be provided by addressing ‘serious difficulty controlling
behavior’ in the jury instructions.” He then proceeds to discuss the various jury
instructions given in other states and some proposed jury instructions that could be
given in Texas that would “ensure due process compliance.”
7
We again note that Encalade does not present his argument in terms of error that
occurred in the trial court below. Rather, he argues throughout this first issue about
what “Texas courts” need to do regarding instructing juries and offers “solutions”
about what juries “could be permitted to know.”
28
the record indicates that Encalade filed a motion to dismiss, or in the alternative,
requested that the trial court “instruct the jury in a manner that ensures that a civil
commitment verdict will comply with due process constraints.” Encalade also
submitted three different complete proposed jury charges. The first contained
proposed definitions for “likely” and “predisposes.” The second contained a
proposed definition for “menace.” The third added “unless confined in a secure
facility” to the end of the definition of “behavioral abnormality.”
Although it appears from the record that the trial court heard argument on and
denied the motion to dismiss, it does not appear that the trial court ever ruled on
Encalade’s requests for specific jury instructions. At trial, the State brought up
Encalade’s motion to dismiss and request for jury instructions, stating: “I know
opposing counsel filed a motion to dismiss and then also instructions for the jury
charge, which I know the jury charge, we can take up later; but the motion to dismiss
was something that she had filed.” The trial court said it would be more than happy
to hear the motion, and Encalade’s counsel proceeded to argue the basis for the
“motion to dismiss.” After hearing argument, the trial court stated: “I read your
motion. I think it’s very well argued and very articulate and it’s probably something
to take up on appeal, so I’m going to deny your motion at this time.” There was no
discussion of the jury charge arguments or definitions Encalade proposed.
29
At a later point in the trial, the parties and the trial court discussed the jury
charge. The trial court noted that the “charge I’ve been given from both of y’all
seems relatively the same.” The parties then proceeded to discuss the issue of
Encalade’s refusal to participate and whether to include a nonparticipation
instruction in the charge. The trial court then asked if there was “anything else y’all
want in this charge? They’re basically similar for the most part.” The State
responded that Encalade “actually filed four different charges,” and the trial court
stated it was looking at the proposed charged filed on February 11. At that time,
Encalade requested that “the limiting instruction be reiterated” referring to Dr.
Turner’s opinions being based on the records and hearsay. The parties continued the
discussion of this limiting instruction, and the State asked to go off the record to
confirm that they were reviewing the correct charge. When they returned on the
record, there was no further discussion of the charge and the State called Encalade
to testify. After Encalade’s brief testimony, the trial court stated: “Let’s work on the
charge, and we’ll go from there.” A short recess was taken, off the record. Back on
the record after the State rested, the trial court denied Encalade’s motion for directed
verdict and then asked: “Do you have any problems — is the charge of the Court
okay with everybody?” Encalade’s counsel said, “[n]o objections.”
Preservation requires a timely, specific objection. TEX. R. APP. P.
33.1(a)(1)(A). The complaining party must also obtain a ruling on the objection, or
30
absent a ruling, the complaining party must object to the trial court’s refusal to rule.
Id. 33.1(a)(2). To preserve charge error for review, a party “must point out distinctly
the objectionable matter and the grounds of the objection. Any complaint as to a
question, definition, or instruction, on account of any defect, omission, or fault in
pleading, is waived unless specifically included in the objections.” TEX. R. CIV. P.
274. An objection does not satisfy Rule 274 unless “the defect relied upon by the
objecting party and the grounds of the objection are stated specifically enough to
support the conclusion that [the] trial court was fully cognizant of the ground of
complaint and deliberately chose to overrule it.” Carousel’s Creamery, L.L.C. v.
Marble Slab Creamery, Inc., 134 S.W.3d 385, 404 (Tex. App.—Houston [1st Dist.]
2004, pet. dism’d). A party must “clearly designate the alleged error and specifically
explain the basis of its complaint in its objection to the charge.” Id. at 404–05; see
also C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 793 (Tex. App.—Houston
[1st Dist.] 2004, no pet.) (“To be sufficiently specific, the party’s objection must
identify the claimed error and explain the basis of the party’s complaint.”). If a party
fails to lodge an objection to the jury charge that timely and plainly makes the trial
court aware of the complaint, error is not preserved, and the complaint is waived.
Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007).
Here, although Encalade submitted various definitions in three different
proposed jury charges, the requested definitions were included across three complete
31
charges and were obscured by additional instructions and definitions. See In re
Commitment of Miller, 262 S.W.3d 877, 892 (Tex. App.—Beaumont 2008, pet.
denied) (“While Rule 273 of the Texas Rules of Civil Procedure does not prohibit
including the request in a complete charge, the request must not be obscured.”); see
also TEX. R. CIV. P. 274 (“When the complaining party’s objection, or requested
question, definition, or instruction is, in the opinion of the appellate court, obscured
or concealed by voluminous unfounded objections, minute differentiations or
numerous unnecessary requests, such objection or request shall be untenable.”). And
although Encalade received a ruling on his motion to dismiss, he had requested these
jury instructions in the alternative, but never brought the proposed definitions to the
trial court’s attention at the charge conference and did not object to their absence
from the charge. Instead, the proposed definitions remained obscured in the charge
and were never discussed with the trial court. See Miller, 262 S.W.3d at 892(appellant’s argument related to proposed definition of “sexually motivated
conduct” was not preserved because definition was obscured in complete charge by
other questions, definitions, and instructions, and appellant did not discuss requested
definition with trial court at charge conference). Consequently, even if adequately
briefed, we hold that Encalade did not preserve his jury instruction argument.
We overrule Encalade’s first issue.
32
Sufficiency of the Evidence
In his fourth and fifth issues, Encalade argues that the evidence is legally and
factually insufficient to support his civil commitment.
A. Standard of Review
A commitment proceeding under the SVP Act is a civil proceeding that
incorporates the standard of proof “beyond a reasonable doubt” typically reserved
for criminal cases. In re Commitment of Stoddard, 619 S.W.3d 665, 668, 674 (Tex.
2020) (explaining that proceeding under SVP Act is “rare civil case in which the
burden of proof is beyond a reasonable doubt”). Thus, in reviewing verdicts in SVP
cases for legal sufficiency of the evidence, we use the appellate standard of review
applied in criminal cases. Id. at 675; see also In re Commitment of Stuteville, 463
S.W.3d 543, 551 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
Under the legal-sufficiency standard in criminal cases, we assess the evidence
in the light most favorable to the verdict to determine whether any rational trier of
fact could find, beyond a reasonable doubt, the elements required for commitment
under the SVP Act. Stoddard, 619 S.W.3d at 675; see also Stuteville, 463 S.W.3d at
551. “It is the fact finder’s responsibility to fairly resolve conflicts in the testimony,
weigh the evidence, and draw reasonable inferences from basic to ultimate facts.”
Stuteville, 463 S.W.3d at 551; see Mullens, 92 S.W.3d 881, 887 (Tex. App.—
Beaumont 2002, pet. denied) (stating fact finder may resolve conflicts and
33
contradictions in evidence “by believing all, part, or none of the witnesses’
testimony”).
The Texas Supreme Court recently clarified the standard of review for factual
sufficiency challenges in SVP cases, holding that in evaluating factual-sufficiency
challenges to the evidence in sexually violent predator cases, an appellate court must
“determine whether, on the entire record, a reasonable factfinder could find beyond
a reasonable doubt that the defendant is [a sexually violent predator].” Stoddard, 619
S.W.3d at 668. In doing so, the Court explained:
[T]he appellate court may not usurp the jury’s role of determining the
credibility of witnesses and the weight to be given their testimony, and
the court must presume that the factfinder resolved disputed evidence
in favor of the finding if a reasonable factfinder could do so. If the
remaining evidence contrary to the finding is so significant in light of
the entire record that the factfinder could not have determined beyond
a reasonable doubt that its finding was true, the evidence is factually
insufficient to support the verdict.
Id.
B. Legal Sufficiency
Encalade argues that the evidence is legally insufficient to support the jury’s
finding that he is a sexually violent predator because Dr. Turner’s testimony was
conclusory and speculative such that no rational factfinder could have found, beyond
a reasonable doubt, the elements required under the SVP statute. He contends that
Dr. Turner was unable to support many of his key conclusions with data from the
records. “When a scientific opinion is admitted in evidence without objection, it may
34
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); see also In re
Commitment of Manuel, No. 01-18-00650-CV, 2019 WL 2458986, at *4 (Tex.
App.—Houston [1st Dist.] June 13, 2019, pet. denied) (mem. op.). A verdict,
however, cannot be sustained on a mere ipse dixit of a credentialed witness. Pollock,
284 S.W.3d at 818; Manuel, 2019 WL 2458986, at *4. “[I]f no basis for the opinion
is offered, or the basis offered provides no support, the opinion is merely a
conclusory statement and cannot be considered probative evidence, regardless of
whether there is no objection.” Pollock, 284 S.W.3d at 818; Manuel, 2019 WL
2458986, at *4. Thus, we review the evidence at trial to determine whether Dr.
Turner offered a basis for his opinion that Encalade 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. TEX. HEALTH & SAFETY CODE § 841.003(a).
Dr. Turner, a clinical psychologist, testified at length about the methodology
he used to determine whether Encalade suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. He testified that he
reviewed numerous records about Encalade, including “[r]ecords related to [his]
offenses, court documents, police investigation documents, records that relate to
how he’s gotten along in prison, what his behavior has been like in prison, any
interviews he might have done for parole or with other psychologists, medical
35
records, things of that nature related to his criminal history, and then also social
history.” Dr. Turner tried to meet with Encalade on several occasions, including once
before he was hired by the State. Dr. Turner testified that although Encalade was
required to participate in the evaluations, Encalade refused to meet with him. As a
result, Dr. Turner based his assessment on the historical records he received related
to Encalade.
Dr. Turner found Encalade to be sexually deviant and antisocial, the two
biggest factors for reoffending. Dr. Turner recognized that Encalade’s case was
“somewhat different than most of the behavioral abnormality cases” in that “in a lot
of cases, if there are all adult victims and it’s a serial rapist, we may see evidence of
sadism” or “[i]f the victims are all . . . children, and we would look at pedophilia as
a sexual deviance.” Dr. Turner explained that the victims here were 14 and 12, so
Encalade did not fit the definition of pedophilia, but still believed Encalade to be
sexually deviant because he “is so antisocial that he takes sex when he wants it, when
the opportunity presents itself, with no []regard for the victim in any capacity.”
Encalade argues that Dr. Turner’s opinion is conclusory because he was
unable to point to anywhere in the record where there was evidence that Encalade
had been using drugs by age ten, other than the MHMR report where the evaluator
noted Encalade was malingering. However, Dr. Turner testified that there were
multiple places in the record that indicated Encalade started acting out and using
36
drugs as early as 10 but agreed that one place it could have come from was the
MHMR report. Dr. Turner stated multiple times that he found references Encalade
“huffing paint fumes, as well as marijuana and alcohol,” being expelled from school
for repeated truancy, in trouble for shoplifting, and riding trains in multiple places
in the record. As for whether it came from the MHMR report, Dr. Turner testified “I
don’t think that’s the only place in the records where that information is; but it may
certainly be there.” And although Encalade’s counsel asked Dr. Turner to look
through the records on a break to confirm where he found that information, his
counsel never recalled Dr. Turner or returned to this line of questioning.
Encalade also argues that Dr. Turner’s opinion was conclusory because he
could not point to any reason other than fear of COVID-19 as a reason for Encalade’s
refusal to participate in sex offender treatment. But Dr. Turner testified that Encalade
refused treatment for a variety of reasons, including that he slept in or that he did not
feel well, in addition to his fear of possible exposure to COVID-19. Dr. Turner stated
that it would not surprise him if Encalade gave his fear of COVID-19 as one of the
reasons for refusing treatment, but there were other reasons offered as well.
Therefore, we disagree that there is no basis in the record for Dr. Turner’s testimony
related to Encalade’s treatment failure.
But even setting aside the treatment failure as an increased risk factor, Dr.
Turner identified a number of other factors he considered in assessing Encalade for
37
a behavioral abnormality and why each factor was important, including that
Encalade was intoxicated during the commission of at least some of his offenses,
that he has substance and alcohol abuse disorders, that he offended while on
probation or parole, that he engaged in significant nonsexual criminal behavior, that
he had received over 61 disciplinary infractions since being incarcerated, and that he
has a preoccupation with sex, having claimed to have had over 100 sexual partners
in the short time that he was not incarcerated. These other factors all contributed to
Dr. Turner’s opinion that Encalade suffers from a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence.
Finally, Encalade argues that Dr. Turner’s testimony lacked statistical support
because he did not consult the statistical tables that come with the Static-99 because
he found them misleading. But Dr. Turner explained that the Static-99 provides a
“very small piece of information,” and that there are “very numerous factors that you
have to look and assess that aren’t addressed by the Static” and that he arrived at his
opinion by balancing all those factors, not just the information considered by the
Static-99 test.
Viewing the evidence in the light most favorable to the verdict, a rational jury
could have found beyond a reasonable doubt that Encalade suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence,
and therefore, the evidence is legally sufficient to support the jury’s verdict.
38
C. Factual Sufficiency
We likewise conclude that the evidence is factually sufficient to support the
jury’s verdict that Encalade suffers from a behavioral abnormality. The evidentiary
standard of review for factual sufficiency differs from the evaluation for legal
sufficiency in SVP cases. 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. See 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. Under
this analysis, 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 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.
Here, Encalade argues that there are disputed facts that the jury could not have
credited in favor of its ultimate finding that he is a sexually violent predator,
including the extent to which Encalade’s behavior is affected by his untreated
39
cancer, that Encalade did not complete treatment because of his fear of COVID-19,
and the disputed sexual nature of Encalade’s letter to prison administration. We
disagree. Although Encalade takes issue with some of the testimony of Dr. Turner,
the whole of the evidence supports the jury’s finding. The “disputed” facts Encalade
identifies do not undermine Dr. Turner’s ultimate opinion that Encalade suffers from
a behavioral abnormality. To the extent there are conflicts or inconsistencies in the
evidence, it was within the province of the jury to weigh the evidence, judge the
credibility of the witnesses, and resolve conflicts in the evidence. Id. at 668; see also
In re Commitment of Williams, 539 S.W.3d 429, 440–41 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied). The jury was free to believe all, part, or none of a witness’s
testimony. Mullens, 92 S.W.3d at 887.
Additionally, although the State concedes that the protective factors Dr.
Turner testified to, including Encalade’s advanced age, no male victims, his efforts
to engage in self-help while incarcerated, and his basic release plan, are undisputed
facts that are contrary to the jury’s verdict, these undisputed facts are not so
significant that the jury could not have found beyond a reasonable doubt that
Encalade suffers from a behavioral abnormality. See Stoddard, 619 S.W.3d at 678.
We therefore hold there is legally and factually sufficient evidence to support
the jury’s finding that Encalade is a repeat sexually violent offender who suffers
40
from a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence. See TEX. HEALTH & SAFETY CODE § 841.003(a).
We overrule Encalade’s fourth and fifth issues.
Exclusion of Evidence under Rule 705
In his second issue, Encalade argues that the trial court abused its discretion
by sustaining the State’s objection to the disclosure of a letter written by Encalade
under Texas Rule of Evidence 705. The State argues that Encalade did not preserve
his objection based on Rule 705 and, even if the objection was preserved, the trial
court did not abuse its discretion.8
A. Standard of Review
We review evidentiary rulings using an abuse-of-discretion standard. See
Stuteville, 463 S.W.3d at 554 (citing Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 906 (Tex. 2000)). A trial court abuses its discretion when it acts without
reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985).
8
The State contends that Encalade’s objection to the trial court’s rulings regarding
the letter are waived because he did not make the same objection he makes on
appeal, i.e., that the trial court erred in failing to require Dr. Turner to read the
contents of the letter to the jury under Rule 705. We disagree. As seen from the
exchange below, the basis for Encalade’s counsel’s objection was that the jury was
not “able to hear what’s in here that he’s making his decision on.” This is in line
with the Rule 705 argument he makes on appeal—i.e., that disclosure of the letter
as the basis for Dr. Turner’s opinion was required under Rule 705.
41
B. Analysis
Rule 705 of the Texas Rules of Evidence provides that an expert may disclose
on direct examination, or be required to disclose on cross-examination, the
underlying facts or data supporting his or her opinion through trial testimony. See
TEX. R. EVID. 705(a) (“Unless the court orders otherwise, an expert may state an
opinion—and give the reasons for it—without first testifying to the underlying facts
or data. But the expert may be required to disclose those facts or data on cross-
examination.”); In re Commitment of Polk, 187 S.W.3d 550, 555 (Tex. App.—
Beaumont 2006, no pet.).
During Dr. Turner’s direct examination, he testified that a recent letter written
by Encalade was evidence that he had been “unable to pick up on cues from other
individuals”:
STATE: Did you see any evidence within the records that he
recently has been unable to pick up on cues from
other individuals?
DR. TURNER: Yes, ma’am.
STATE: Okay. And specifically regarding the nurse, what
did you see within the records regarding that?
DR. TURNER: That he wrote a letter to the prison administration
indicating that he intended to marry a nurse staff
member at one of the institutions where he was
housed and he wanted -- he was writing to ask the
administration to handle paperwork that would
allow for him to marry her and give his inheritance
to her.
42
STATE: And did he ever mention wanting to have babies
with her?
DR. TURNER: Yes, ma’am.
STATE: And was that within the letter that he had written?
DR. TURNER: Yes, ma’am.
STATE: Okay. And how recent was that letter? Do you
recall?
DR. TURNER: It was fairly recent. I would say within the past two
years.
STATE: Okay.
DR. TURNER: I can’t remember the date, I’m sorry.
STATE: And was there any notation within the records that
that was unwanted communication from him?
DR. TURNER: Yes, ma’am.
STATE: And is that concerning to you, that he’s writing
these kind[s] of letters or has this belief in a
relationship with someone who treated him
medically?
DR. TURNER: Yes.
STATE: And what is that concern?
DR. TURNER: Well, it’s sexual; it’s inappropriate; and based on
his history, we know that there’s at least some
chance of him making an effort to act on it because
he’s been willing to in the past. So that is
concerning.
On cross examination, Encalade questioned Dr. Turner about his opinion that
the letter was “sexual,” during which the following exchange occurred.
43
DEFENSE COUNSEL: About that letter, does he proposition the
nurse sexually in any way? Does he mention
her body?
DR. TURNER: No, ma’am, just that he would like to marry
her.
DEFENSE COUNSEL: Okay.
DR. TURNER: And have children.
DEFENSE COUNSEL: Is it uncommon for patients, very ill people,
to develop feelings for the caregivers that
help them through a dark time in their life?
DR. TURNER: In general, no, ma’am.
DEFENSE COUNSEL: And does expressing the desire to marry
someone necessarily translate to recent
evidence of a sexual deviancy?
DR. TURNER: In this case, because of the context, I do --
DEFENSE COUNSEL: Okay. Do you have a copy of that letter with
you?
DR. TURNER: I do, yes, ma’am. . . .
.....
DEFENSE COUNSEL: Okay. Aside from the fact that he fantasizes
about having -- perhaps fantasizes about
having this land and leaving a legacy, what
part of this is sexually deviant? Can you just
point me to, I guess, first, the page and then
kind of which section -- the top, bottom,
middle?
DR. TURNER: Well, really, ma’am, it’s just the letter in and
of itself. I mean, it’s a letter to administration
expressing romantic feelings for a staff
member and asking the administration to take
care of certain legal matters that will ensure
44
that this staff member will receive his
inheritance. I mean, that’s --
DEFENSE COUNSEL: And is that --
DR. TURNER: -- just odd and –
DEFENSE COUNSEL: -- evidence --
THE COURT: You can’t talk over each other.
DFENSE COUNSEL: And that’s evidence of sexual deviance, of
wanting to -- what was your terminology for
sexual deviance? Have sexual relations with
someone who’s unwilling or it’s abnormal?
.....
DEFENSE COUNSEL: So wanting to marry her and leave her land,
you think that is victimizing? Is that what
you’re trying to say, that that’s recent
evidence of him wanting to victimize
somebody because he wants to marry her and
leave the nurse that took care of him, leave
her land?
DR. TURNER: My testimony is that it is inappropriate sexual
behavior by a person that is a repeat violent
sexual predator that is recent in time, and that
is concerning that he would act out on those
feelings in the way that he did.
DEFENSE COUNSEL: Okay. So there’s no -- is there a particular
part of the letter, or is it the whole letter?
STATE: Objection, your answer -- Your Honor – I’m
sorry -- this has been asked and answered
multiple times.
DEFENSE COUNSEL: In that case --
THE COURT: Objection is overruled. I don’t think he’s -- I
think that she’s asked the question. I just
45
don’t think he’s answered the question. I
think you’re right in part at least in the asked
part, but I don’t believe it’s been answered.
You may continue, ma’am.
DEFENSE COUNSEL: I was just asking which part because I really
don’t want to ask you to read the whole thing
because it is three pages; but, I mean, if you
insist that it’s the whole letter, would you
mind reading your copy?
DR. TURNER: My answer was the letter in its entirety.
DEFENSE COUNSEL: Okay. Would you mind reading the letter in
its entirety, then?
STATE: Your Honor, this --
THE COURT: Sustained.
STATE: -- hasn’t been entered.
THE COURT: That’s sustained.
DEFENSE COUNSEL: Your Honor, I’d like to put the letter into
evidence. That’s permitted.
STATE: Your Honor, this is not a writing by Dr.
Turner; so he is not able to prove up this
letter.
THE COURT: I tend -- well, if you have an objection, it’s
sustained at this point.
STATE: Yes. That’s the objection,
Your Honor.
DEFENSE COUNSEL: Well, Your Honor, I would object to the jury
not being able to hear what’s in here that he’s
making his decision on. If you won’t read it
out loud and --
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THE COURT: First of all, I don’t need your comments about
my rulings. There is no predicate that’s been
laid. It is improper at this point. The State has
objected, and I’m sustaining that objection. I
said “at this point.” If you want to attempt to
establish it, that’s fine; but at this point,
sustained.
DEFENSE COUNSEL: We can move on.
Encalade argues that the trial court abused its discretion by not requiring Dr.
Turner to read the entire contents of the letter into evidence, based on Rule 705.
However, as Encalade concedes, Rule 705 allows for the disclosure of the facts and
basis for an expert’s opinion, but not necessarily the admission of that evidence. The
case cited by Encalade in support of this issue on appeal makes this clear. See
Boswell v. Brazos Elec. Power Co-op., Inc., 910 S.W.2d 593, 603 (Tex. App.—Fort
Worth 1995, writ denied). There, the appellant argued that certain plat maps were
admissible as the “underlying facts or data” from which the opposing party’s expert
formulated his opinions. Id. The court noted that under Rule 705, the trial court is
“required” to allow disclosure of evidence to discredit an expert on cross-
examination. Id. The court noted, however, that “[t]here is a distinct but important
difference between disclosure, in which there is no discretion, and admission into
evidence, where the trial court enjoys discretion.” Id. Thus, the court held that the
trial court did not abuse his discretion in disallowing the admission of the proffered
evidence for purposes of cross-examination. Id. Because the trial court allowed
47
disclosure of the existence of the plat maps and did not prohibit cross-examination
about the maps, the trial court did not abuse its discretion in excluding the plat maps
from being admitted into evidence. Id.Here, as can be seen from the exchange above, the disclosure of the existence
of the letter, and its contents, was made to the jury. Dr. Turner was cross-examined
extensively by Encalade about the letter and its contents. Dr. Turner testified about
the contents of the letter multiple times, explaining that it was a letter to the prison
administration indicating that he intended to marry a nurse staff member, asking the
administration to handle paperwork that would allow for him to marry her and give
his inheritance to her. He explained that the letter expressed romantic feelings for
the nurse, and a desire to marry her, have babies with her, and that he wanted to
leave his inheritance to her. Dr. Turner admitted there were no sexual propositions
in the letter and that Encalade did not reference the nurse’s body in any way.
However, he explained that in his opinion, it was inappropriate sexual behavior by
a person that is a repeat violent sexual predator that is recent in time, and that is
concerning that he would act out on those feelings in the way that he did. Under the
circumstances, Encalade was permitted the opportunity to fully cross-examine Dr.
Turner about the letter and its contents and we decline to conclude that the trial court
abused its discretion by refusing to admit the letter into evidence or require Dr.
Turner to read the letter into evidence. See Boswell, 910 S.W.2d at 603; cf. Wheatfall
48
v. State, 882 S.W.2d 829, 837 (Tex. Crim. App. 1994) (concluding that only if
document has been properly admitted into evidence may the contents be read aloud
in front of jury); Juarez v. State, No. 04-15-00413-CR, 2016 WL 1359372, at *4
(Tex. App.—San Antonio Apr. 6, 2016, no pet.) (mem. op.) (same).
Moreover, even if there was error in excluding this evidence, we hold that any
error was harmless. There was sufficient evidence in the record that would support
the jury’s verdict that Encalade was a sexually violent predator, as detailed above.
To make a successful challenge to evidentiary rulings, the complaining party must
show that the judgment turns on the particular piece of evidence excluded or
admitted. See In re Commitment of Slama, No. 09-13-00497-CV, 2014 WL 6488943,
at *5 (Tex. App.—Beaumont Nov. 20, 2014, no pet.) (mem. op.) (“Given the
evidence in the record, the admissions from Slama, his prior convictions, and the
testimony from Dr. Self that Slama suffers from a behavioral abnormality that makes
him likely to engage in predatory acts of sexual violence, Slama has not
demonstrated that the trial court’s judgment turns on the particular evidence about
which he complains on appeal, and Slama has failed to demonstrate that the
admission of the testimony probably caused the rendition of an improper
judgment.”). There was ample evidence from Dr. Turner’s testimony, even setting
aside any evidence based on the letter, to support his opinion that Encalade is a repeat
sexually violent offender who suffers from a behavioral abnormality that makes him
49
likely to engage in a predatory act of sexual violence, including evidence related to
his past sexual crimes, his other nonsexual criminal history, his antisocial
personality, his numerous disciplinary infractions since being incarcerated, evidence
that he was intoxicated during the commission of at least some of his offenses, that
he has substance and alcohol abuse disorders, that he offended while on probation
or parole, and that he has a preoccupation with sex, having claimed to have had over
100 sexual partners in the short time where he was not incarcerated.
We overrule Encalade’s second issue.
Exclusion of Expert Testimony
In his third issue, Encalade argues that the trial court erred by prohibiting
Encalade’s expert from testifying at trial as a sanction for his failure to comply with
discovery orders and to participate in depositions and expert evaluations required by
statute. According to Encalade, the sanctions imposed were not authorized by
Section 841.061(f) of the Health and Safety Code because his designated expert did
not interview him but based her opinion only on a review of the records. He likewise
argues that the sanctions were also not authorized by Rule 215.2 of the Texas Rules
of Civil Procedure because they were too extreme.
A. Standard of Review and Applicable Law
We review a trial court’s ruling to impose sanctions for an abuse of discretion.
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); Cire v.
50
Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The trial court’s ruling will be
reversed only if the trial court acted without reference to any guiding rules or
principles, such that its ruling was arbitrary or unreasonable. Cire, 134 S.W.3d at838–39. To determine if the sanctions were just, there must be a direct relationship
between the improper conduct and the sanction the trial court imposed. Id. at 839
(citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991)). “This means that a just sanction must be directed against the abuse and
toward remedying the prejudice caused the innocent party.” Powell, 811 S.W.2d at
917.
Section 841.061(f) of the Health and Safety Code authorizes certain sanctions
when a person who is on trial to determine the person’s status as a sexually violent
predator fails to submit to a clinical interview on the State’s behalf as required by
the SVP Act:
(f) A person who is on trial to determine the person’s status as a sexually
violent predator is required to submit to all expert clinical interviews
that are required or permitted of the state to prepare for the person’s
trial. A person who fails to submit to a clinical interview on the state’s
behalf as required by this subsection is subject to the following
consequences:
(1) the person’s failure to participate may be used as evidence
against the person at trial;
(2) the person may be prohibited from offering into evidence the
results of a clinical interview performed on the person’s behalf;
and
51
(3) the person may be subject to contempt proceedings if the
person violates a court order by failing to submit to a clinical
interview on the state’s behalf.
TEX. HEALTH & SAFETY CODE § 841.061(f).
Texas Rule of Civil Procedure 215.2 governs the sanctions permitted for
discovery abuse in civil proceedings, including authorizing the trial court to strike
pleadings and to refuse to allow the disobedient party to support or oppose his claims
or defenses. See TEX. R. CIV. P. 215.2(b).
B. Analysis
Encalade first argues that the sanctions imposed by the trial court were not
authorized under Section 841.061(f) because that only prohibits the offender from
offering into evidence the results of a clinical interview preformed on his behalf,
which did not occur here. Even if that were true, an issue we do not decide, the record
before us supports the trial court’s imposition of sanctions under Texas Rule of Civil
Procedure 215.2.
In a factually similar case, the Beaumont Court of Appeals considered
whether the striking of the offender’s pleadings was a proper sanction. See In re
Commitment of Malone, 336 S.W.3d 860, 861–62 (Tex. App.—Beaumont 2011, pet.
denied). The trial court rejected the appellant’s arguments, similar to those made by
Encalade here, that the trial court was limited to the sanctions authorized by Section
841.061(f). In doing so, the court of appeals noted that the requirement that a person
52
submit to an expert examination under Section 841.061(c) did not evidence a
legislative intent to preclude the use of the discovery tools generally available to the
parties under the Texas Rules of Civil Procedure. Id. at 862. Accordingly, the trial
court did not abuse its discretion by imposing discovery sanctions authorized by
Rule 215.2 to remedy the appellant’s discovery abuse. Id.We agree with this analysis. The trial court here explained that sanctions were
being imposed because, despite being “given multiple opportunities,” Encalade “has
steadfastly refused to submit to expert examinations and to participate in discovery
as ordered by this court.” Therefore, the sanctions imposed were not only due to
Encalade’s failure to submit to an expert examination, but also due to his repeated
failure to participate in discovery, which may be addressed through sanctions
authorized by Rule 215.2. See Malone, 336 S.W.3d at 861–62.
We also reject Encalade’s argument that the sanctions imposed were
excessive and that the trial court did not consider lesser sanctions before excluding
his expert’s testimony. First, we note that although the State requested in its motion
to strike that the trial court strike Encalade’s pleadings and enter a judgment nihil
dicit, the trial court did not impose those sanctions. Rather, the trial court excluded
Encalade’s expert but did not award a judgment by default. Instead, the jury
determined that Encalade suffers from a behavioral abnormality that predisposes him
to engage in predatory acts of sexual violence. Thus, while the sanctions imposed
53
were severe, the trial court did not remove from the jury the question of whether the
State proved that Encalade was predisposed to commit a predatory act of sexual
violence. See id. at 863 (noting that although sanction of striking pleadings was
severe, trial court did not award judgment by default but rather submitted to jury
question of whether appellant was predisposed to commit a predatory act of sexual
violence).
As evidenced by the record, Encalade refused to participate in any discovery
for over a year, beginning with his first refusal to submit to Dr. Turner’s examination
in December 2020. Thereafter, he was ordered by the trial court to participate in an
expert evaluation conducted by Dr. Turner and to comply with “all discovery
requests allowed under the law.” Despite this court order and being admonished by
the trial court of the consequences for his failure to participate, Encalade refused to
participate in the expert evaluation.
Encalade also refused to participate in discovery, including sitting for his
deposition. As evidenced by email communications between the State and
Encalade’s counsel, he refused to cooperate or communicate with his own counsel,
which necessitated the rescheduling of his deposition at least once. After his
deposition was rescheduled to July 19, 2021, he indicated to TDCJ staff that he
refused to participate, and therefore, the State canceled his deposition scheduled for
that date. Encalade also refused to participate in his deposition that was noticed for
54
August 16. After this refusal, the State moved to compel his appearance, which the
trial court granted on October 22. In this order, the trial court ordered Encalade “to
participate in the discovery process, to include submitting himself for a deposition
and responding to discovery requests made by the [State].” The trial court further
warned Encalade that the failure “to answer a question at deposition as directed by
this Court . . . may be considered a contempt of Court.” On February 1, 2022, the
State noticed Encalade’s deposition for February 15. Encalade again failed to appear.
Accordingly, on February 24, 2022, the day before trial, the trial court entered
an order for trial sanctions. In the order, the trial court noted that Encalade had “been
given multiple opportunities, yet has steadfastly refused to submit to expert
examinations and to participate in discovery as ordered by this court.” Accordingly,
the trial court imposed the following sanctions:
A jury instruction will be given that states [Encalade’s] refusal
to submit to expert examinations may be used as evidence that
[Encalade] has a behavioral abnormality that predisposes him to
commit a predatory act of sexual violence. [Encalade] is prohibited
from offering evidence [of] the results of an expert examination
performed on [his] behalf at trial.
In light of Encalade’s continued refusals to participate in discovery, including
his refusal after being directed to participate in discovery in two orders by the trial
court, the trial court had the discretion to impose a “just” sanction authorized by
Rule 215.2(b). See TEX. R. CIV. P. 215.2(b). Rule 215.2(b) authorizes trial courts to
prohibit a disobedient party from introducing designated matters into evidence. See
55
id. 215.2(b)(4). Since one of the issues in SVP cases concerns whether the person
alleged by the State to be a sexual predator has a behavioral abnormality
predisposing him to engage in a predatory act of sexual violence, the person’s
testimony is generally relevant to the central issues in dispute. Depriving the State
of this information interferes with the State’s ability to meet its burden. Given the
relevance of the information that a deposition of a person on trial in a SVP case is
likely to reveal, as well as the trial court’s several attempts to gain Encalade’s
cooperation with pre-trial discovery, we conclude the trial court’s remedy of
excluding Encalade’s expert was a just sanction. See Malone, 336 S.W.3d at 863.
Additionally, the trial court considered the imposition of lesser sanctions,
including contempt, but considering Encalade’s continued refusal to participate in
any and all discovery, and his continued refusal to communicate with his own
counsel, the record demonstrates that this is an exceptional case in which no lesser
sanctions would promote compliance with the discovery rules, and the trial court
was not required to test lesser sanctions. See Cire, 134 S.W.3d at 842 (in cases of
“egregious conduct and blatant disregard for the discovery process,” trial court is not
required to test effectiveness of lesser sanctions before imposing death penalty
sanctions).
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We hold the trial court did not abuse its discretion in excluding Encalade’s
expert from testifying. We further conclude the trial court’s order sanctioning
Encalade was just and that the sanctions imposed by the order were not excessive.
We overrule Encalade’s third issue.
Conclusion
We affirm the trial court’s order of commitment.
Amparo Guerra
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
57