in Re Commitment of Jeffery Lee Stoddard

IN THE SUPREME COURT OF TEXAS
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No. 19-0561
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IN RE COMMITMENT OF JEFFERY LEE STODDARD
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
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Argued October 7, 2020
JUSTICE LEHRMANN delivered the opinion of the Court.
We are asked to clarify the standard governing a factual-sufficiency review in the rare
civil case in which the burden of proof is beyond a reasonable doubt. The case before us,
involving a defendant’s civil commitment under Health and Safety Code chapter 841 on the basis
that he is a sexually violent predator (“SVP”), falls into that category. The court of appeals
described the standard as requiring it to weigh all the evidence in a neutral light to determine
whether the jury’s finding is factually insufficient or is so against the great weight and
preponderance as to be manifestly unjust, shock the conscience, or clearly demonstrate bias.
Applying that standard, the court of appeals reversed a jury’s finding that Jeffery Lee Stoddard is
an SVP and remanded the case for a new trial.
Drawing from our precedent governing factual-sufficiency reviews in cases involving an
intermediate clear-and-convincing burden of proof, we conclude that the court of appeals applied
an improper standard that allowed the court to substitute its own judgment for that of a
reasonable factfinder and incorporated a statutory element that chapter 841’s text does not
support. We hold that a properly conducted factual-sufficiency review in an SVP case requires
the court of appeals to determine whether, on the entire record, a reasonable factfinder could find
beyond a reasonable doubt that the defendant is an SVP. In so doing, the 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. We reverse the court of appeals’ judgment and remand to that court to
conduct a factual-sufficiency review under this clarified standard.
I. Statutory Framework
In 1999, the Legislature enacted the Civil Commitment of Sexually Violent Predators Act
(“SVP Act” or “Act”), codified at Texas Health and Safety Code chapter 841. The Act
enumerates several legislative findings, including that:
• “a small but extremely dangerous group of sexually violent predators exists and that
those predators have a behavioral abnormality that is not amenable to traditional mental
illness treatment modalities and that makes the predators likely to engage in repeated
predatory acts of sexual violence”;
2
• “the existing involuntary commitment provisions of Subtitle C, Title 7 [the Texas Mental
Health Code], are inadequate to address the risk of repeated predatory behavior that
sexually violent predators pose to society”; and
• “treatment modalities for sexually violent predators are different from the traditional
treatment modalities for persons appropriate for involuntary commitment under Subtitle
C, Title 7.”
TEX. HEALTH & SAFETY CODE § 841.001. In accordance with those findings, the Act provides “a
civil-commitment procedure for the long-term supervision and treatment of sexually violent
predators.” Id. A “sexually violent predator” is a “repeat sexually violent offender” 1 who
“suffers from a behavioral abnormality[2] that makes the person likely to engage in a predatory
act of sexual violence.” Id. § 841.003(a).
The commitment procedure begins when the Texas Department of Criminal Justice
notifies an established multidisciplinary team of the anticipated release date of a person who is
serving a sentence for a sexually violent offense and “may be a repeat sexually violent offender.”
Id. § 841.021(a).3 The team must timely assess whether the person is a repeat sexually violent
offender and is likely to commit a sexually violent offense after release, notify the Department of
the assessment, and make a recommendation regarding whether to evaluate the person for a
1
As relevant here, a person is a “repeat sexually violent offender” if he “is convicted of more than one
sexually violent offense and a sentence is imposed for at least one of the offenses.” TEX. HEALTH & SAFETY CODE
§ 841.003(b). “Sexually violent offense” is defined in the Act to include certain enumerated offenses under the
Penal Code, as well as offenses with substantially similar elements under prior state law or the law of other
jurisdictions. Id. § 841.002(8).
2
“Behavioral abnormality” is defined as “a congenital or acquired condition that, by affecting a person’s
emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the
person becomes a menace to the health and safety of another person.” Id. § 841.002(2).
3
The Act places timing restrictions on the required notice and provides requirements relating to the
multidisciplinary team’s membership and training. Id. §§ 841.021(a-1), (c), .022(a), (a-1).
3
behavioral abnormality. Id. § 841.022(c). Upon receipt of a recommendation to do so, the
Department must timely conduct the behavioral-abnormality assessment by utilizing an expert to
examine the person and “make a clinical assessment based on testing for psychopathy, a clinical
interview, and other appropriate . . . techniques.” Id. § 841.023(a). If as a result of that
assessment the Department “believes that the person suffers from a behavioral abnormality,” the
Department must timely provide notice and corresponding documentation to the appropriate
attorney representing the state. Id. § 841.023(b).
Within ninety days of receipt of the Department’s referral, the state’s attorney “may
file . . . a petition alleging that the person is a sexually violent predator and stating facts
sufficient to support the allegation.” Id. § 841.041. The judge must conduct a trial “not later
than the 270th day after the date a petition is served on the person” and “not later than the
person’s sentence discharge date.” Id. § 841.061(a). The parties are each entitled to demand a
jury trial and to “an immediate examination of the person by an expert.” Id. § 841.061(b)–(c).
Other rights guaranteed to the defendant include the right to appear and present evidence at trial,
cross-examine witnesses, and review all petitions and reports in the court file. Id. § 841.061(d).
Based on the trial evidence, the factfinder “shall determine whether, beyond a reasonable doubt,
the person is a sexually violent predator.” Id. § 841.062(a). Upon a finding that the person is an
SVP, “the judge shall commit the person for treatment and supervision to be coordinated by” the
Texas Civil Commitment Office, the designated agency responsible for providing such
treatment. Id. §§ 841.007, .081(a). 4
4
The Act goes on to provide a detailed framework governing the treatment and supervision of persons
committed under the Act, mandating periodic reviews to evaluate the propriety of continued civil commitment and
providing procedures for release on the ground that the person’s behavioral abnormality has changed to the extent
4
II. Factual and Procedural Background
In May 2004, Jeffery Lee Stoddard pled guilty to two counts of aggravated sexual assault
of a child and to possession of child pornography. The assault convictions involved Stoddard’s
engaging in oral sex with a seven-year-old girl (“Alice”) and causing the girl’s six-year-old
brother (“Bobby”) to engage in oral sex with her. 5 Stoddard was sentenced to twenty years in
prison for each sexual-assault conviction and ten years for the child-pornography conviction, to
be served concurrently. He became eligible for parole after serving twelve years of his sentence
and was scheduled to be released in September 2017. In late 2016, the State filed a petition
alleging Stoddard is an SVP and requesting that he be committed for treatment and supervision
pursuant to the SVP Act.6 In early 2017, six months before the SVP trial, Stoddard entered into
a nine-month sex-offender treatment program.
At trial, the jury heard testimony from Stoddard and Dr. Timothy Proctor, a forensic
psychologist and licensed sex-offender treatment provider who testified as an expert witness for
the State. Dr. Proctor conducted an in-person evaluation of Stoddard and reviewed numerous
records regarding his sexual offenses, criminal history, and a previous evaluation conducted by
another psychologist, Dr. Varela. As the court of appeals thoroughly discussed, Proctor
identified and discussed a number of risk factors that he considered in evaluating whether
Stoddard has a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence.
that the person is no longer likely to engage in a predatory act of sexual violence. See id. §§ 841.082–.124. We
need not describe those provisions in detail to resolve the issues presented.
5
For convenience, we use the same aliases for the children that the court of appeals used.
6
There appears to be no dispute that the prepetition process—involving a multidisciplinary team’s
assessment and recommendation, a clinical assessment by the Department utilizing an expert, and notice of that
assessment to the state’s attorney—was properly followed.
5
Proctor diagnosed Stoddard with nonexclusive-type pedophilic disorder, meaning he is
sexually attracted to male and female children and adults. Proctor testified that pedophilia, or
sexual interest in prepubescent children, “is a life-long condition, that is . . . not going to be
cured. But the idea is to try to treat it, to help to prevent the person from acting on it.” Proctor
also found that Stoddard exhibited significant antisocial and psychopathic traits, though he did
not diagnose Stoddard with “full-blown antisocial or psychopathic disorders.”7 According to
Proctor, Stoddard’s pedophilia and antisocial lifestyle were the two most significant risk factors.
Proctor described Stoddard’s escalation from noncontact offenses like viewing child
pornography to grooming Alice and Bobby (by, for example, viewing pornography with Alice)
to abusing Alice and finally to abusing both children by causing them to perform sexual acts on
each other. Proctor noted that some of the pornographic images on Stoddard’s computer had
been there for at least three years, reflecting the “strength” and “persistence” of Stoddard’s
sexual interest in children. Further, Stoddard lived in the victims’ home (in a nonromantic
relationship with their mother) for only one month, and Proctor considered it “significant” that
the abuse began so quickly after he moved in. Proctor also explained that the lack of a familial
relationship between Stoddard and the children indicates a higher risk of reoffending, as does the
fact that he offended against multiple victims on multiple occasions and the fact that the abuse
included a male victim.8
7
Dr. Proctor administered a test to Stoddard called the Psychopathy Checklist Revised (“PCLR”), which
uses twenty personality traits to assign a number on a forty-point scale. Proctor scored Stoddard a 27, while a
diagnosed psychopath generally scores 30 or higher. Dr. Varela had previously administered the test and scored
Stoddard a 25. Proctor agreed that the PCLR is a better indicator of general recidivism than sexual-offense
recidivism.
8
Proctor administered an actuarial test called the Static-99, which produces a score based on ten research-
based, objective criteria that are designed to evaluate the risk of reoffending. Stoddard scored a 4, which is “above
6
Another risk factor Proctor discussed was Stoddard’s denial and minimization of his
offenses, demonstrating a lack of self-awareness. For example, Stoddard admitted to abusing
Alice on two occasions, while records indicated Alice alleged it had happened as many as ten or
eleven times. Stoddard denied knowing why he did it and testified that he thought she wanted to
and was a willing participant. He stated that Alice had watched one of his pornographic videos
and told him she “wanted to try that,” but he also denied showing her the video. Stoddard denied
abusing Bobby at all despite his guilty plea, testifying that he did not force the children to
perform sexual acts on each other but “caught them doing it” four or five times. Stoddard opined
that “they were groomed and they were taught to do that, but not by me.” And he admitted
possessing approximately 110 images of child pornography but stated that its presence on his
computer was “accidental.” He denied being attracted to children but identified “a naked child
wanting to have sex with [him]” as a trigger to his reoffending. Proctor opined that, while this
risk factor was the “weakest” in terms of evaluating risk of reoffending, it is “something that still
has some importance and that I consider.”
Proctor also discussed Stoddard’s nonsexual criminal history, which demonstrated
“criminal versatility” and involved a range of convictions including domestic-violence offenses,
vehicle-related offenses, and drug-related offenses. Stoddard testified that he had been arrested
ten to twelve times as an adult but had never served prison time until the 2004 convictions.
Proctor also referenced a probation violation that further indicated control issues, though
Stoddard testified that he had always completed probation successfully.
average.” Dr. Varela had previously administered the test and scored Proctor a 3. Proctor recognized that the
average overall risk of reoffending associated with a score of 4 is 5.5%, though he testified that the test is a “starting
point” that does not take all risk factors into account or differentiate the weight to be accorded to any particular
factor. Further, the data is not broken down to address recidivism rates among offenders diagnosed with pedophilia.
7
Other risk factors Proctor discussed include:
• Stoddard had a significant history of substance abuse that concerned Proctor because of
the disinhibition associated with drugs and alcohol. However, Stoddard testified that he
had last used alcohol in 1994, last used drugs in 1984, and attended Alcoholics
Anonymous and Narcotics Anonymous regularly before he went to prison. Proctor did
not appear to disagree that Stoddard’s substance-abuse problems were under control well
before he committed the sexual offenses.
• Stoddard had an unstable relationship history, partially demonstrated by the domestic-
violence allegations. Stoddard also had a “spotty, unstable work history,” though Proctor
agreed that Stoddard had held one job for several years. Proctor described a lack of
“planning” on Stoddard’s part that contributed to the instability.
• As far as Stoddard’s behavior while in prison, Proctor stated that Stoddard had “some
issues” but was “far from the worst I’ve seen.” Stoddard had no problems with sexual
misconduct while in prison, though Proctor explained that was typical for someone with
Stoddard’s diagnosis because there are “no children in prison.”
• Proctor identified two “protective factors” that indicated a decreased risk of reoffending:
Stoddard’s age (52 at the time of trial) and his participation in the sex-offender treatment
program. However, Proctor also expressed concern with the program’s short length and
Stoddard’s apparent lack of progress, including his continued denial of offending against
Bobby.
8
Dr. Proctor ultimately concluded, based on his education, experience, and evaluation of
Stoddard, that Stoddard suffers from a behavioral abnormality that makes him likely to engage in
a predatory act of sexual violence.
The jury charge provided the statutory definitions of the relevant terms, including
“sexually violent predator,” “repeat sexually violent offender,” “behavioral abnormality,”
“predatory act,” and “sexually violent offense.” The jury unanimously found beyond a
reasonable doubt that Stoddard is a sexually violent predator. The trial court rendered judgment
on the jury’s verdict and ordered Stoddard civilly committed under the Act for treatment and
supervision by the Civil Commitment Office. Stoddard appealed.
A divided court of appeals reversed and remanded for a new trial, holding that the
evidence was legally sufficient but factually insufficient to support the verdict. 601 S.W.3d 879(Tex. App.—Fort Worth 2019). First addressing the legal-sufficiency challenge, the court
rejected Stoddard’s argument that Proctor’s testimony should have been excluded in its entirety
as conclusory or speculative, holding that “Proctor provided evidence-based support for his
opinion.” Id. at 890. The court concluded that, considering the evidence in the light most
favorable to the verdict, a rational trier of fact could have found the statutory elements for
commitment beyond a reasonable doubt. Id. at 890–91.
Turning to Stoddard’s factual-sufficiency challenge, the court of appeals described the
standard of review as requiring the court to “weigh all of the evidence in a neutral light to
determine whether the jury’s finding ‘is factually insufficient or is so against the great weight
and preponderance as to be manifestly unjust,’” “‘shock[] the conscience,’” or “‘clearly
demonstrate[] bias.’” Id. at 891 (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.
9
1986)). The court purported to apply that standard in light of the SVP Act’s “require[ment] that
Stoddard suffer from a behavioral abnormality that renders him a member of the small group of
extremely dangerous sex offenders that require civil commitment because they are likely to
engage in future predatory acts of sexual violence.” Id. at 892. The court concluded that
permitting the verdict to stand would allow Stoddard’s confinement to be extended indefinitely
“based upon not much more than the facts related to the underlying crime for which he was
convicted,” noting that Stoddard’s underlying offenses and criminal history “pale in comparison”
to a selection of four other SVPs whose commitments had been upheld and do not “establish a
pattern of violent offenses.” Id. at 893–95. Viewing Stoddard’s criminal history “in light of the
weak evidence of other factors considered by Proctor,” the court concluded that “it is simply not
enough to qualify Stoddard as the type of sex offender whom these civil commitments are
constitutionally permitted to restrain.” Id. at 895.
One justice dissented, opining that the court’s task was to apply the proper standard to
“the issue at hand”—whether sufficient evidence supports the jury’s finding that Stoddard suffers
from a behavioral abnormality that makes him likely to engage in a future predatory act—not
whether the evidence shows Stoddard is a “member of a small and dangerous group.” Id. at 899
(Gabriel, J., dissenting). The dissent noted that the SVP Act’s legislative findings regarding the
existence of a small but dangerous group of sexually violent predators identify why the
Legislature deemed the Act necessary but “do not supplement or dilute the more specific
requirements laid out in the remainder of the Act, . . . as is reflected in the absence of those
findings from the jury charge.” Id. at 899–900. The dissent also took issue with the majority’s
reliance on factual comparisons to other SVP cases and opined that such comparisons are
10
inappropriate in a factual-sufficiency review, which requires the court to evaluate the jury’s
finding in light of the evidence in this case. Id. at 902. And the dissent disagreed with the
majority’s evaluation of that evidence, concluding that the State did not rely solely on Stoddard’s
underlying offenses and that the jury reasonably could have credited the evidence “directly
addressing Stoddard’s predisposition or likelihood to reoffend.” Id. at 901.
The State petitioned for review, presenting two issues. First, noting that the Court of
Criminal Appeals has abolished separate factual-sufficiency reviews in criminal cases, the State
asks us to follow suit and do the same in SVP cases. Alternatively, the State argues that the
court of appeals improperly conducted its factual-sufficiency review by considering evidence
outside the record, creating new elements unsupported by the SVP Act, and substituting its own
view of the evidence for that of the jury. We granted the State’s petition.9
III. Analysis
The court of appeals’ review of the legal sufficiency of the evidence to support the jury’s
verdict is not at issue. However, we discuss the standards governing legal-sufficiency reviews
insofar as they are helpful in articulating the standards governing factual-sufficiency reviews.
A. Sufficiency Reviews in Civil Cases with Elevated Burden of Proof
A commitment proceeding under the SVP Act is the unusual civil case incorporating the
“beyond a reasonable doubt” burden of proof typically reserved for criminal cases. In re
Commitment of Fisher, 164 S.W.3d 637, 639–41 (Tex. 2005). While we have never evaluated
the effect of such a high burden of proof on the standards for conducting evidentiary-sufficiency
9
We have no jurisdiction to conduct a factual-sufficiency review. In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). However, we may determine whether the court of appeals adhered to the proper legal standard in conducting
such a review. Id. Our review of the court’s opinion and judgment is limited accordingly.
11
reviews on appeal, we have clarified those standards with respect to cases involving an
intermediate “clear and convincing” burden. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). In
doing so, we have recognized that “the burden of proof at trial necessarily affects appellate
review of the evidence.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Irrespective of the burden of
proof, however, the jury remains “the sole judge of the credibility of witnesses and the weight to
be given to their testimony.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003); see also C.H., 89 S.W.3d at 26. To that end, the standards we have articulated for both
legal- and factual-sufficiency reviews of findings that must be proven by clear and convincing
evidence “honor not only the elevated burden of proof, but also the deference an appellate court
must have for the factfinder’s role.” In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). The
distinction between the two types of review “lies in the extent to which disputed evidence
contrary to a finding may be considered.” Id.A legal-sufficiency review of a finding that must be proven by clear and convincing
evidence requires that the court review the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could form a firm belief or conviction that the finding
was true.10 J.F.C., 96 S.W.3d at 266. The court must “assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so” and “disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been incredible.”
Id. The court may not disregard undisputed facts that do not support the finding. Id.
10
Clear and convincing evidence is a “‘degree of proof which will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be established.’” C.H., 89 S.W.3d at 23 (quoting
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)).
12
By contrast, a factual-sufficiency review is premised on consideration of the entire
record. Id. The assumption that the factfinder resolved disputed evidence in favor of the finding
if a reasonable factfinder could do so remains. Id. However, rather than “disregard” disputed
evidence that a reasonable factfinder could not have credited in favor of the finding, the court
must determine whether, in light of the entire record, that evidence “is so significant that a
factfinder could not reasonably have formed a firm belief or conviction” that the finding was
true. Id. 11 By logical extension, in an SVP case where the burden of proof is beyond a
reasonable doubt, the evidence is factually insufficient if, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of the SVP
finding, along with the undisputed facts that do not support the finding, is so significant that the
factfinder could not have found beyond a reasonable doubt that the statutory elements were met.
See id.; A.C., 560 S.W.3d at 631.
The State’s primary argument is that, rather than apply this or any other standard to
factual-sufficiency reviews in SVP cases, we should follow the Court of Criminal Appeals’
approach and abandon such reviews altogether in favor of a single legal-sufficiency standard.
We decline to do so.
The legal-sufficiency standard in criminal cases is consistent with the civil standard: the
reviewing court must determine “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted).
In Clewis v. State, the Court of Criminal Appeals created a factual-sufficiency standard requiring
11
The court must also “detail in its opinion why it has concluded that a reasonable factfinder could not
have credited disputed evidence in favor of the finding.” J.F.C., 96 S.W.3d at 267.
13
the reviewing court to “view[] all the evidence without the prism of ‘in the light most favorable
to the prosecution’” and to set aside the verdict “only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust.” 922 S.W.2d 126, 129 (Tex. Crim.
App. 1996) (citation and internal quotation marks omitted).
The Court of Criminal Appeals overruled Clewis in 2010, holding that the two
sufficiency standards had “become essentially the same” and that “the Jackson v. Virginia legal-
sufficiency standard is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support” the elements of a criminal offense. Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The purported difference between the two
types of review, the Court explained, is that in a legal-sufficiency review the court must “defer to
the jury’s credibility and weight determinations” (i.e., view the evidence in the light most
favorable to the verdict), while in a factual-sufficiency review the court views the evidence in a
“neutral light” and thus need not defer to those determinations. Id. at 899–900. Yet, the Court
noted, its factual-sufficiency decisions “have always required” the reviewing court “to afford a
great amount of deference . . . to a jury’s credibility and weight determinations,” and its most
recent formulation of the standard recognized that jurors remain “the sole judge of a witness’s
credibility[] and the weight to be given their testimony.” Id. at 900–02 (citation and internal
quotation marks omitted). The Court of Criminal Appeals ultimately concluded that the required
deference to jury determinations of weight and credibility “eliminates the viewing the evidence
in a ‘neutral light’ component of a factual-sufficiency standard,” rendering it “indistinguishable”
from the legal-sufficiency standard. Id. at 902.
14
The State argues that, because a factual-sufficiency review in the civil context similarly
requires deference to a jury’s credibility and weight determinations, it is similarly
indistinguishable from a legal-sufficiency review. See Golden Eagle Archery, 116 S.W.3d at
761; C.H., 89 S.W.3d at 25–26 (explaining that the standard governing factual-sufficiency
review of findings by clear and convincing evidence “retains the deference an appellate court
must have for the factfinder’s role”). We disagree. It is true that in both types of review the
appellate court may not ignore “undisputed facts that do not support the finding” and must
otherwise presume the factfinder resolved disputed evidence in favor of the finding if a
reasonable factfinder could do so. See J.F.C., 96 S.W.3d at 266. As discussed, however,
disputed evidence that a reasonable factfinder could not have credited in favor of the finding is
treated differently. In a legal-sufficiency review, the court disregards such evidence in
determining whether a rational factfinder could find the statutory SVP elements beyond a
reasonable doubt. Id. In a factual-sufficiency review, the court considers whether that evidence,
in light of the entire record, is so significant that the factfinder could not have determined beyond
a reasonable doubt that the statutory elements were met. See id.
To be sure, this distinction “may be a fine one in some cases.” Id.; see also In re
Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied) (“[T]he
possibility that the evidence in a particular case will be legally sufficient but factually
insufficient essentially decreases as the burden of proof increases.”). But it is a distinction we
have continued to recognize in our civil jurisprudence, and we see no reason to treat SVP cases
differently. Accordingly, we hold that the “right of courts of appeals to review for factual
15
insufficiency” under the standard expressed herein “must continue undisturbed.” Pool, 715
S.W.2d at 634.
B. The Court of Appeals’ Factual-Sufficiency Review
The verdict to be reviewed in this case is the jury’s finding beyond a reasonable doubt
that Stoddard is an SVP. To reach that verdict, the jury was required to find that (1) Stoddard is
a repeat sexually violent offender and (2) he suffers from a behavioral abnormality
(encompassing a “congenital or acquired condition”) that makes him likely to engage in a
predatory act of sexual violence. It is undisputed that Stoddard is a repeat sexually violent
offender as the SVP Act defines that term. Stoddard complains only that the evidence is
insufficient to support the beyond-a-reasonable-doubt finding that he suffers from the requisite
behavioral abnormality.
The factual-sufficiency standard the court of appeals employed in reviewing that finding
does not comport with the standard we have articulated. The court engaged in “weigh[ing] all of
the evidence in a neutral light” to determine that the evidence was factually insufficient to
support the verdict and thus created a risk of injustice too great to allow the verdict to stand. 601
S.W.3d at 891–92. In doing so, the court of appeals largely failed to apply the required
presumption in favor of the jury’s determinations as to evidentiary weight and credibility. 12
With respect to Proctor’s testimony about the considerations he viewed as most significant in
assessing Stoddard’s risk of committing predatory acts of sexual violence—Stoddard’s
pedophilia diagnosis, his exhibition of strong antisocial and psychopathic personality traits, the
12
Other courts of appeals use similar language in describing the factual-sufficiency standard but make clear
that the jury may resolve conflicts in the evidence and remains the sole judge of witnesses’ credibility and the
weight to be given their testimony. See, e.g., In re Commitment of Johnson, No. 05-17-01171-CV, 2019 WL
364475, at *3 (Tex. App.—Dallas Jan. 30, 2019, no pet.).
16
age of his victims and the fact that he was not related to them, the sex of one of his victims, his
possession of extensive child pornography, and his swift escalation to “grooming” the children
and then to contact offenses (including both causing Alice to engage in sexual activity with him
and causing the children to engage in sexual activity with each other)—the court of appeals
deemed the testimony insufficiently persuasive while ignoring the jury’s right to determine the
requisite weight to be given that testimony.
For example, the court observed that the agreed twenty-year sentence for Stoddard’s
offenses against Alice and Bobby was “not even close to” the maximum possible sentence for
those crimes. Id. at 894. The court also noted that Stoddard’s criminal history did not include
prior sex offenses or “a pattern of violent offenses,” though the trial testimony did indicate prior
instances of assault and domestic violence. 13 Id. at 895. And the court found it significant that
Proctor did not diagnose Stoddard as a psychopath. Id. at 896. Another risk factor Proctor
discussed—Stoddard’s denial and minimization of his guilt—was amply supported by the
evidence but was described as the “weakest” of the factors Proctor considered. Id. at 894. In the
court of appeals’ view, these observations served to undermine the weight to be accorded
Proctor’s testimony about Stoddard’s risk of committing future predatory acts of sexual violence.
See id. at 893–96.
But a mere disagreement with the jury as to proper evidentiary weight and credibility
cannot be the basis of a reversal on factual-insufficiency grounds. Rather, the court was required
to explain why the evidence that the jury could not reasonably have credited in favor of the
finding was so significant that the jury could not have found beyond a reasonable doubt that
13
Proctor testified that Stoddard had past “convictions” for domestic-violence offenses, while Stoddard
testified that he had been “arrested” twice for family-violence assault against his ex-wife.
17
Stoddard suffered from the requisite behavioral abnormality that made him likely to engage in a
predatory act of sexual violence. 14 It did not do so. Instead, the court appeared to substitute its
own judgment for that of the jury by concluding that, although Proctor “provided evidence-based
support for his opinion,” the evidence the State presented was, in the court’s view, “simply not
enough.” Id. at 890, 895.
The court of appeals compounded that error by focusing its review on whether Stoddard
was a “member of the small group of extremely dangerous sex offenders” the SVP Act was
enacted to address. Id. at 892 (citing TEX. HEALTH & SAFETY CODE § 841.001). This “small but
extremely dangerous group” language, contained in the Act’s legislative findings, is not part of
the statute’s definition of “sexually violent predator” and was not an element the jury was
required to find. In re Commitment of Johnson, No. 05-17-01171-CV, 2019 WL 364475, at *3
(Tex. App.—Dallas Jan. 30, 2019, no pet.); see also Golden Eagle Archery, 116 S.W.3d at 762
(“The starting point [in conducting a factual-sufficiency review] generally is the charge and
instructions to the jury.”). The court of appeals insisted that it was not “creating an additional
element for the State to prove” by measuring the evidence against this statutory language, yet the
court expressly held that the evidence “falls short of establishing that Stoddard belongs in the
‘small’ category of sex offenders . . . who should have their liberty taken from them indefinitely
because of the risk that they are likely to engage in future acts of sexual violence.” 601 S.W.3d
at 892–93. It did so by comparing Stoddard to other adjudicated SVPs with predicate offenses
and criminal histories that were more sustained and egregious than Stoddard’s. See id. at 894.
14
The court did appear to conclude that Proctor’s testimony about other risk factors—Stoddard’s history of
substance abuse, unstable employment history, unstable relationship history, and problems with planning—could not
reasonably be credited in favor of the finding. See 601 S.W.3d at 897. That portion of the court’s analysis is in
stark contrast to its consideration of Proctor’s testimony on the factors he deemed most significant.
18
The court thereby effectively opined that civil commitment under the SVP Act is reserved for the
“worst of the worst” and that Stoddard does not qualify as such. But that is simply not what the
Act requires the State to prove. See Johnson, 2019 WL 364475, at *3 (noting that the terms
“extremely dangerous” and “worst of the worst” do not appear in the statutory definition of
sexually violent predator and are not elements the State must prove); c.f. In re Commitment of
Williams, 539 S.W.3d 429, 438 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (holding that the
SVP Act’s legislative finding regarding the inappropriateness of traditional treatment modalities
was not an element of the State’s case).
The court of appeals expressed concern that conducting a factual-sufficiency review
without consideration of the SVP Act’s application to a “small group” of sex offenders “risks
ripping Chapter 841 from its constitutional foundation, thus opening the door to civil
commitments of sex offenders based solely on their predicate sex offenses.” 601 S.W.3d at 892–
93. That concern is unfounded because chapter 841 inherently limits the scope of civil
commitment to a limited subset of offenders: those who committed certain enumerated sexually
violent offenses, are repeat offenders, and suffer from a behavioral abnormality that makes them
likely to engage in a predatory act of sexual violence. In other words, the Act requires evidence
of both repeat past sexually violent behavior and a present condition that creates a likelihood of
such conduct in the future. A factual-sufficiency review focused on the Act’s actual
requirements does not threaten its constitutionality. See Kansas v. Hendricks, 521 U.S. 346, 358
(1997) (upholding an SVP statute with substantially similar elements).
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IV. Conclusion
The appellate standard governing a factual-sufficiency review of a finding that a person is
a sexually violent predator is whether, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of the verdict, along with undisputed facts
contrary to the verdict, is so significant that the factfinder could not have found beyond a
reasonable doubt that the statutory elements were met. Further, in reversing for factual
insufficiency, the appellate court must detail why it has concluded that a reasonable factfinder
could not have credited disputed evidence in favor of the finding.
The court of appeals’ factual-sufficiency review of the verdict in this case did not
comport with that standard. Accordingly, we reverse the court of appeals’ judgment and remand
the case to that court to consider Stoddard’s factual-sufficiency point under the standard
announced today.
________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: December 18, 2020
20