In Re: The Commitment of Jarrod Owensby v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-24-00216-CV
IN RE: THE COMMITMENT OF JARROD OWENSBY
On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 111684-B-CV, Honorable Titiana Frausto, Presiding
October 22, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
A jury found appellant, Jarrod Owensby, to be a “sexually violent predator” under
chapter 841 of the Health and Safety Code, that is, the Texas Civil Commitment of
Sexually Violent Predators Act. That resulted in the trial court’s ordering his commitment
to a residential facility for sex offender treatment upon his release from prison for his latest
sexual offense. By a single issue, Owensby argues the evidence was insufficient to
support the finding. Allegedly, the expert witness proffered by the State only provided
conclusory, unreliable, and illogical opinions upon which the jury could not rely as
evidence. We affirm.
Background
Having been twice convicted for violent sexual offenses, Owensby approached the
end of his 13-year sentence for the latest sexually based crime. As he did, the State
petitioned for his civil commitment as a sexually violent predator. Allegedly, he suffered
from a behavioral abnormality that made him likely to engage in a predatory act of sexual
violence.
Two witnesses testified at the ensuing trial, Owensby and the forensic psychologist
Dr. Jason Dunham. The jury heard from those witnesses of the numerous instances of
sexual depravity in which Owensby engaged over his 50 plus years of age and multiple
(two) expert opinions deeming him as suffering from a behavioral abnormality.
Thereafter, the jury found the existence of the elements necessary to result in Owensby’s
commitment, which finding the trial court memorialized in the final judgment under attack
here.
Analysis
Through his sole issue, Owensby contends Dunham provided only nonsensical
and conclusory testimony to support his opinions. Thus, the evidence was insufficient to
support the jury’s finding. We overrule the issue.
The pertinent standard of review is set forth in In re Commitment of Stoddard, 619
S.W.3d 665, 674-75 (Tex. 2020) and In re Commitment of Delacruz, No. 03-19-00420-
CV, 2020 Tex. App. LEXIS 10576, at *3-4 (Tex. App.—Austin Apr. 8, 2021, pet. denied)
(mem. op.). We apply it here.
Regarding the particular argument of Owensby, conclusory opinions are no
evidence. Windrum v. Kareh, 581 S.W.3d 761, 770 (Tex. 2019). Thus, they cannot
support a jury finding or ensuing judgment. Id. Furthermore, a conclusory expert opinion
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differs from one that is unreliable or inadmissible. Id. It can be the subject of a “no-
evidence” challenge on appeal without first objecting to it at trial. Id. Yet, the line
determining whether an expert opinion is conclusory is difficult to draw, and “[c]lose calls
must go to the trial court.” Id. (quoting Larson v. Downing, 197 S.W.3d 303 (Tex. 2006)
(per curiam)). Generally, the expert must explain the basis for his opinion and link it to
facts. Id. at 768. Or, as our Supreme Court said, an expert’s opinion is “conclusory when:
(1) he asks the jury to take his word that his opinion is correct but offers no basis for his
opinion or the bases offered do not actually support the opinion; or (2) he offers only his
word that the bases offered to support his opinion actually exist or support his opinion.”
Id. at 769. The expert’s experience alone may provide some of the requisite basis and
proffering medical or academic literature is not always necessary. Id.Finally, the legislature, under the Act, provided for the involuntary “long-term
supervision and treatment of sexually violent predators.” TEX. HEALTH & SAFETY CODE
ANN. § 841.001. Establishing one is such a predator entails proof 1) the person is a
“repeat sexually violent offender” who 2) “suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence.” Id. at
§ 841.003(a). “Behavioral abnormality” is a condition that predisposes sexually violent
conduct. In re Bohannan, 388 S.W.3d 296, 302-303 (Tex. 2012). That is, “predisposes”
qualifies and describes the “condition.” Id. “The required condition is the predisposition.”
Id. (emphasis in original). They are one and the same. Id. In other words, the requisite
abnormality consists of a predisposition to commit sexually violent offenses to the extent
that the person becomes a menace to the health and safety of another person. Id. at 303.
That said, we turn to the record at bar.
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The State proved Owensby to be a repeat sexual offender. His convictions for
indecency with a child and sexual assault of a 15-year-old establish as much.
Next, the record contains evidence of an expert (Dunham) testifying about
Owensby’s behavioral abnormality. The qualifications of the expert consisted of: 1) a
bachelor’s degree in psychology, 2) a master’s degree in clinical psychology, 3) a Ph.D.
in counseling psychology, 4) a one-year predoctoral internship in forensic psychology (a
field encompassing the topic of behavioral abnormalities), 5) a one-year postdoctoral
fellowship in adult criminal forensic psychology, 6) a 24-year practice in forensic
psychology, 7) conducting “sex offender risk assessment evaluation[s]” for that 24 years,
8) conducting “behavioral abnormalities” evaluations of the ilk required under the Act
since 2005, 9) performing 323 of such behavioral abnormality evaluations, 10) conducting
such evaluations for the State, State Counsel for Offenders, Texas Department of
Criminal Justice, and Texas Civil Commitment Office, and 11) testifying in trial, for
“purposes of a behavioral abnormality assessment,” approximately 175 times. 1 Not only
does this provide foundation to deem him an expert in the field of the type of behavioral
abnormalities encompassed by this proceeding but also supplies some basis underlying
his opinions regarding same. But there is more.
In evaluating Owensby, Dunham reviewed reports from at least one other expert
who opined that Owensby suffered from the requisite behavioral abnormality. 2 Such was
1 According to the record, the very same expert whose opinions are under attack as “conclusory,”
“defy[ing] common sense,” “illogical,” and “unreliable” is the very same expert counsel for Owensby (i.e.
State Counsel for Offenders) often hires in matters such as these. That seems rather ironic, and itself tends
to detract from the acceptability of Owensby’s position at bar.
2 Owensby does not here assail the opinion of this other expert, which the jury was free to weigh in
its deliberations.
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a common practice in the field, according to Dunham. So too did he compare the
information garnered during his own evaluation with that relied upon by the other expert
to see how they matched. The information compared included “documents, lots of
documents, lots of records and files, doing an evaluation face-to-face, talking to the
person, [and] doing testing.” 3 The data obtained was historical in nature and covered
Owensby’s entire life. So covering his lifespan afforded a broader basis upon which to
form an opinion. Added to that was application of risk factors, protective factors, and
diagnoses personally developed by Dunham. Also guiding his evaluation were
recognized principles in the field of forensic psychology. Other experts performing like
forensic evaluations also used the same methodology, according to him.
As indicated above, Owensby also underwent psychological testing. Those tests
consisted of a Static-99R test, which is a risk assessment tool, and the PCLR test, which
measures an individual’s level of psychopathy.
And, within the historical information considered by Dunham one encountered
specific information about the nature of Owensby’s criminal conduct. His first conviction
emanated from the rape of a seven-year-old girl; Owensby apparently gave her slightly
older brother pornography to review while he committed the crime. That resulted in his
conviction for indecency with a child by contact, a prison sentence of 20 years, sexual
offender treatment while imprisoned, multiple paroles before completing the sentence,
and multiple revocations of same for violating the conditions of parole.
3 The expert described a portion of the documents reviewed while evaluating Owensby as police
reports, court judgments, victim statements, witness statements, deposition transcripts of Mr. Owensby,
prison records which include sex offender treatment records, medical records, disciplinary write-ups, and
education records.
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The State again convicted him at the age of 44. Underlying this incident was his
rape of a 16-year-old boy whom he encountered in Bible studies. One of the rather
fantastical descriptions of the crime uttered by Owensby consisted of his being made to
rape the minor at gun point by a third-party. Upon completion of the act, someone then
supposedly injected Owensby with heroin. Yet, this tale was not told to the police. And
eventually Owensby would simply admit to forcibly raping the youth in his (Owensby’s)
truck. This act led to a multi-year prison term nearing completion at the time the State
sought to have him adjudicated a sexually violent predator.
Another criminal offense committed while on parole consisted of Owensby’s
entering a neighboring house at night without permission and while a mother and child
slept on the couch. Apparently, he carried the child to a bedroom, returned to the couch,
and stood over the mother. She awoke, and her screams caused him to flee. The expert
also encountered evidence of Owensby’s admitting to having at least 80 sexual partners,
his having a sex drive of between seven and eight on a scale of ten, his having engaged
in fights within prison, and his having received at least 70 disciplinary write-ups while
incarcerated, 20 of which involved acts of public masturbation.
The foregoing led Dunham to opine that Owensby suffered from a behavioral
abnormality making him likely to engage in a predatory act of sexual violence. Underlying
that opinion were others pertaining to Owensby’s sexual deviance, recidivism after
treatment, antisocial orientation, pattern of behavior, lack of impulse control, and refusal
to accept complete responsibility for his crimes. The expert both related the facts
supporting these sub-opinions and explained the reasons for their relevance to the
ultimate determination about Owensby’s being predisposed to engaging in other sexually
violent acts endangering others. Owensby did it before. He did it again. He did it after
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completing sexual offender treatment. He did it after being incarcerated for engaging in
criminally sexual acts. He did it apparently knowing it could return him to prison. He did
it to a very young girl. He did it to an older male youth thereby expanding his target pool.
He did it behind doors. He did it in public. He gained opportunity through criminal
trespass to do it to an adult female before being scared away. He had no hesitance to
engage in criminal activity both of a sexual and non-sexual nature. He had no hesitance
to masturbate in front of others while in or out of prison.
In short, courts have long recognized that past is prologue. See Carson v. Carson,
No. 07-16-00311-CV, 2017 Tex. App. LEXIS 9238, at *8 (Tex. App.—Amarillo Sept. 29,
2017, no pet.) (mem. op.) (citing In re Epperson, 213 S.W.3d 541, 544 (Tex. App.—
Texarkana 2007, no pet.)). The foregoing circumstances illustrating Owensby to be an
antisocial sexual deviant unhindered by laws, impulse control, and societal norms for the
better part of his life underlay Dunham’s opinion casting Owensby as predisposed to
engaging in sexual acts endangering others. These circumstances not only served to
shield that opinion against attack as conclusory but also illustrate that the jury
characterizing Owensby as a violent sexual predator had the support of both legally and
factually sufficient evidence.
We overrule his sole issue and affirm the trial court’s judgment.
Brian Quinn
Chief Justice
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