Opinion
No. 09-08-00303-CV
Submitted on April 3, 2009.
Opinion Delivered August 31, 2009.
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 07-09-08955 CV.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
The State filed a petition seeking an involuntary civil commitment of Ricardo Diaz as a sexually violent predator. See Tex. Health Safety Code Ann. §§ 841.001-.150 (Vernon 2003 Supp. 2008) ("Texas Sexually Violent Predator Act"). The jury found that Diaz was a sexually violent predator ("SVP"), and Diaz appeals from the trial court's final judgment and order of civil commitment. See Tex. Health Safety Code Ann. § 841.003 (Vernon 2003). In three appellate issues, Diaz contends: 1) the evidence is legally insufficient to support the jury's verdict, 2) the trial court erred in admitting testimony from one of Diaz's victims, and 3) the trial court abused its discretion in admitting cumulative testimony about Diaz's past offenses. We affirm the trial court's judgment.
The SVP statute defines "sexually violent predator" as a person who "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a) (Vernon 2003). As to the first requirement, Diaz admitted that he had been convicted of four predicate offenses: rape of a child, sexual abuse, and two sexual assault offenses. As to the second, the State offered expert witness testimony to prove its elements.
The Act defines "behavioral abnormality" as "a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person." Id. § 841.002(2) (Vernon Supp. 2008).
Legal sufficiency
In issue one, Diaz argues the evidence is legally insufficient because the testimony of the State's expert witnesses, Dr. Jason Dunham and Dr. Rahn Bailey, is speculative and conclusory, and because it lacks the probative force required to support the verdict. Diaz does not contend that he made these objections at trial. Instead,
Diaz notes correctly that he may raise the legal insufficiency of conclusory or speculative expert testimony for the first time on appeal. See Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004).
As the Texas Supreme Court recently explained, "conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony." City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (citing Coastal Transp. Co., 136 S.W.3d at 232). If there is no reliable basis offered for the expert's opinion, the opinion is considered conclusory and is not probative evidence. Id. at 816-17. If the opinion has a supporting basis, but there is a reliability challenge that requires the court to evaluate the underlying methodology, technique, or foundational data, then an objection "must be timely made so that the trial court has the opportunity to conduct this analysis." Id. at 817 (citing Coastal Transp. Co., 136 S.W.3d at 233).
Much of Diaz's argument in issue one challenges the respective methodologies of the State's experts, but those objections were not made during trial. Therefore, complaints that the experts' respective opinions are not sufficiently reliable were not properly preserved. See id. In considering Diaz's legal sufficiency challenge, therefore, we review the record, including the experts' methodologies, to determine if it contains any evidence of probative value to show that the State met its burden of proof.
Chapter 841 requires the State to prove beyond a reasonable doubt that a person is a sexually violent predator. See Tex. Health Safety Code Ann. § 841.062(a) (Vernon 2003). Consequently, although this is a civil case, we review legal sufficiency issues on appeal by the criminal standard of review. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.-Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We review the evidence to decide if a rational jury could have found beyond a reasonable doubt that Diaz suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id. at 887.
Each of the State's experts explained the methodology he used to determine whether Diaz suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Both examined historical records and an evaluation packet prepared by the sex offender treatment program. Both examined historical records regarding Diaz's offenses, and reviewed Diaz's prison disciplinary history as well as his school, medical, and treatment records. Both also used risk assessment instruments and actuarial tests. In addition, each of the State's experts interviewed Diaz.
Dr. Dunham, a forensic psychologist, performed two actuarial tests on Diaz, the "Static 99," which measures the rate of reconviction for a sexual offense, and the "Minnesota Sex Offenders Screening Tool, Revised"(MnSOST-R), which measures the rate of rearrest for "hands-on" sexual offenses. Dr. Dunham scored Diaz with a "5" on the Static 99, which places Diaz in the "moderate high risk" category. On the MnSOST-R, Dr. Dunham scored Diaz with a "plus 11," which places him at a high risk for being rearrested. Dr. Dunham diagnosed Diaz as having "Paraphilia not Otherwise Specified, (Nonconsent)." Dr. Dunham explained that paraphilia is a sexual disorder, which is defined as having recurrent or persisting sexual urges, fantasies, and behaviors against children or nonconsenting adults. Overall, Dr. Dunham placed Diaz at a high risk of reoffending and testified that Diaz had a behavioral abnormality that makes him likely to engage in sexual violence.
Dr. Bailey, a psychiatrist who is board certified in forensic medicine, diagnosed Diaz with paraphilia, not otherwise specified. He identified several risk factors for Diaz's reoffending: 1) more than one offense, 2) presence of violence in the offenses, 3) use of alcohol, and 4) violation of parole. Dr. Bailey scored Diaz with a 4 on the Static 99, which according to Dr.Bailey, put Diaz at a high risk level. Dr. Bailey concluded that Diaz has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence.
Diaz also called an expert witness, Dr. Anna Shursen, during the trial. Dr. Shursen, a licensed professional counselor and licensed sex offender treatment provider, used the same basic information and assessment instruments used by the State's experts in her evaluation. She scored Diaz with a 4 on the Static 99, which she said was a "moderate to high" category. Dr. Shursen also conducted a MnSOST-R and scored Diaz with a 2 on that actuarial. Dr. Shursen concluded that Diaz did not have a behavioral abnormality making him likely to engage in future predatory acts of sexual violence.
All of the experts reviewed Diaz's records, interviewed him, and scored him on assessment tests. Diaz's expert used the same types of tests as the State's witnesses. Thus, all of the experts had support for their respective opinions, even though their opinions differed. We conclude that the record does not demonstrate that the expert testimony supporting the verdict is without any probative value. Because the record contains legally sufficient evidence, we conclude that a rational jury could have found beyond a reasonable doubt that Diaz suffers from a behavioral abnormality that predisposes him to commit a predatory act of sexual violence. We overrule issue one.
Victim's Testimony
Issue two contends the trial court erred in permitting "victim impact" testimony from Diaz's second victim because the statute does not authorize such testimony and the testimony is not relevant in this case. Prior to the victim's testimony about the details of the offense, Diaz's counsel objected that the testimony would be cumulative, prejudicial, and without probative value. Diaz did not object on the grounds that he now raises on appeal, i.e., that the admission of "victim impact" testimony was error. Accordingly, we overrule issue two because it is not preserved for appellate review. See Tex. R. App. P. 33.1(a).
Cumulative Testimony
Issue three maintains the trial court abused its discretion in admitting needlessly cumulative and repetitive testimony regarding Diaz's past offenses. Diaz contends that even if victim testimony is recognized as relevant in SVP commitment proceedings, such testimony should be excluded because its probative value is outweighed by the danger of presenting cumulative evidence. Diaz argues that there was no need for this testimony because he admitted what happened.
The State argues that the second victim's testimony was properly admitted to impeach or rebut Diaz's testimony about the second offense. We agree. At trial, Diaz contended that his sexual activities with the second victim were consensual. The second victim, however, testified that Diaz raped her, that he forced her to have oral and vaginal sex with him, and that no part of the activities were consensual.
Cumulative evidence is "[a]dditional evidence that supports a fact established by the existing evidence[.]" BLACK'S LAW DICTIONARY 596 (8th ed. 2004). In this case, the witness's testimony regarding whether the activities were consensual conflicts with Diaz's testimony; thus, the witness's testimony constitutes impeachment or rebuttal, and is not cumulative. See id. at 597, 599. We overrule issue three and affirm the trial court's judgment.
AFFIRMED.