Opinion
03-23-00126-CV
08-09-2024
In re Commitment of Charles David Nickerson
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 324504, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Kelly and Theofanis.
MEMORANDUM OPINION
Chari L. Kelly, Justice
Charles David Nickerson appeals the trial court's judgment rendered on a jury verdict, and associated civil-commitment order, that determined him to be a sexually violent predator and ordered that he be committed for treatment and supervision. See Tex. Health & Safety Code §§ 841.003, 841.041(a), 841.062, 841.081(a). In three appellate issues, he contends that (1) the court abused its discretion by admitting testimony by the State's expert about many of the bases for the expert's opinions; (2) the expert's testimony was legally insufficient to support a finding on the "behavioral abnormality" element of the State's claim; and (3) the evidence was factually insufficient on the same element, given competing evidence in the record. See id. §§ 841.002(2), 841.003(a)(2). We affirm.
BACKGROUND
When Nickerson was soon to be released from his second sentence of imprisonment for a child-sexual-misconduct offense, the State petitioned that he be civilly committed as a sexually violent predator. That claim was tried to a jury, and much of the State's evidence for its claim came from expert testimony by Dr. Darrel Turner, a doctor of clinical psychology who evaluated Nickerson.
Dr. Turner explained to the jury that, among other things, he had arrived at an expert opinion on whether Nickerson "suffers from a behavioral abnormality that makes [him] likely to engage in a predatory act of sexual violence" and why he arrived at that opinion. He evaluates whether a person like Nickerson has such a behavioral abnormality by assessing the "risk factors" and "protective factors" that the person exhibits. This use of risk factors, and the particular risk factors that Dr. Turner identified in his work on this case, have been vetted by peer-reviewed research. Risk factors help clinicians assess how likely it is that a sex offender will reoffend. The protective factors suggest lower likelihoods that an offender will reoffend.
Dr. Turner explained that to arrive at his opinions, he assessed Nickerson's possible risk factors and protective factors by reviewing records about him and conducting two interviews with him. The records that Dr. Turner reviewed included Nickerson's two convictions for aggravated sexual assault of a child and indecency with a child by contact, respectively; "records that date back to . . . the periods of time surrounding the offenses, the investigations, [and] the court proceedings"; records showing the timeline of Nickerson's misconduct; medical records; records about Nickerson's time in prison; records about Nickerson's parole process; "some psychological screening that's done on sex offenders in" Texas prisons; deposition transcripts; and personal mail sent by or to Nickerson. The records revealed allegations of frequent sexual misconduct by Nickerson and the circumstances surrounding the alleged misconduct, all of which Dr. Turner considered important for arriving at his opinions.
Of the records that Dr. Turner reviewed, many were admitted into evidence as exhibits in the trial here, but others were not. Admitted into evidence were the penitentiary packets for Nickerson's convictions, judicial confessions for the convictions, signed statements by Nickerson regarding the convictions, and the written plea agreement for the later conviction. Otherwise, the records that Dr. Turner reviewed but that were not admitted into evidence were not exhaustively listed at trial. We refer to those records using the shorthand "hearsay records."
Based on his work, Dr. Turner concluded that Nickerson exhibits the three most significant risk factors indicating that a person has the kind of behavioral abnormality at issue here: (1) "antisociality or psychopathy"; (2) "sexual deviance, which is not just who or what they're attracted to but how and how they go about victimizing and fulfilling that," over time; and (3) "persistence after punishment," which includes "things like violating conditional release" and reoffending after having been in treatment. Dr. Turner also testified about other more specific risk factors that Nickerson exhibits that fall under the umbrella of one of the main three risk factors. For example, Nickerson has made statements suggesting that children can consent to sexual activity with adults. Dr. Turner described statements like this as a risk factor showing the sexual-deviance main risk factor. Similarly, Dr. Turner believes Nickerson to exhibit a manipulation risk factor, which is associated with the antisociality main risk factor.
Ultimately, based on his work in reviewing the records-both the hearsay records and the ones admitted into evidence-and speaking with Nickerson, Dr. Turner concluded that Nickerson has the behavioral abnormality described above. One of the bases for this opinion, Dr. Turner testified, is that Nickerson has committed many acts of sexual misconduct over a period of many years, only some of which have resulted in convictions.
The jury found that Nickerson is a sexually violent predator, impliedly finding that he has the behavioral abnormality described above. The trial court rendered judgment on the verdict, ordering that Nickerson be committed for treatment and supervision under the applicable statute. Nickerson now appeals.
DISCUSSION
I. Curative instructions made the challenged admission of evidence harmless.
Nickerson contends in his evidence-admission issue that the trial court abused its discretion by admitting certain testimony from Dr. Turner about the bases for his expert opinions. Many of the bases stemmed from the records about Nickerson that Dr. Turner reviewed that gave details about allegations of Nickerson's past sexual misconduct and the circumstances surrounding it. Some of the allegations resulted in criminal convictions, others were investigated and charged but did not result in convictions, and still others did not lead to any charges. As to the hearsay records, Nickerson's counsel, in a hearing outside the jury's presence, argued that Dr. Turner's testimony about the bases for his opinions relying on the hearsay records was inadmissible for several reasons.
For an evidence-admission appellate issue to support reversal, admitting the evidence must have "probably caused the rendition of an improper judgment." See Tex. R. App. P. 44.1(a)(1); Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023) (per curiam). This harm evaluation requires the appellant to show "that the judgment turns on the particular evidence admitted." Jackson, 675 S.W.3d at 6-7 (quoting Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004)). "By contrast, the erroneous admission of . . . evidence that does not control a material and dispositive issue is generally harmless and thus does not require reversal." Id. at 7.
Nickerson's appellate issue-in both its merits and harm analyses-depends on Rule of Evidence 705(d), which provides that a party putting forward an expert opinion may not disclose the opinion's bases "if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect." The rule goes on to say, "If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly." Tex. R. Evid. 705(d).
Nickerson's appellate briefing is clear that his admissibility issue concerns the testimony about the bases for the opinions and not the testimony giving the opinions themselves. Thus, although his briefing raises both Rules of Evidence 703 and 705(d), we look only to Rule 705(d) as the source of law supporting his appellate issue. Rule 705(d) governs when evidence of an expert opinion's bases may be admitted. See Wood v. State, 299 S.W.3d 200, 212 (Tex. App.- Austin 2009, pet. ref'd). By contrast, Rule 703 addresses the admissibility of the opinion itself and the material that is allowed to be a basis for an expert opinion. See Tex. R. Evid. 703 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." (emphasis added)); State v. Resolution Tr. Corp., 827 S.W.2d 106, 108 (Tex. App.-Austin 1992, writ denied) (Rule 703 overturned common-law rule governing when expert opinions were inadmissible). This distinction is set forth in the case that Nickerson cites in his briefing. See In re Commitment of Hull, No. 13-17-00378-CV, 2019 WL 3241883, at *8 (Tex. App.-Corpus Christi-Edinburg July 18, 2019, pet. denied) (mem. op.).
Under this last part of the rule, the trial court here gave the jury instructions about Dr. Turner's testimony about some of the bases for his opinions. After the hearing outside the jury's presence during which Nickerson argued the inadmissibility issue that he raises on appeal, the court gave the jury an oral instruction defining hearsay and telling the jury how it may and may not use Dr. Turner's testimony about information that he gleaned from the hearsay records:
Generally, hearsay is not admissible as evidence during a trial; however, in this case, certain hearsay information contained in the records reviewed and relied upon by the expert will be presented to you through that expert's testimony. Such hearsay information is being presented to you only for the purpose of showing the basis of the expert's opinion and cannot be considered as evidence to prove the
truth of the matter asserted. You may not consider hearsay information for any other purpose, including whether the facts alleged in the records are true.Nickerson had requested this instruction, and the court included a nearly identical instruction in the jury charge, which the court both read to the jury and provided to the jury in writing. We presume that the jury followed the court's instructions-the record does not suggest otherwise. See In re Commitment of Bailey, No. 03-17-00312-CV, 2018 WL 4140850, at *4 (Tex. App.- Austin Aug. 30, 2018, no pet.) (mem. op.).
These instructions mean that the challenged testimony by Dr. Turner about the hearsay records did not probably cause the rendition of an improper judgment. The instructions cured any harm that could have stemmed from the challenged testimony about the hearsay records. In re Commitment of Langford, No. 01-18-01050-CV, 2019 WL 6905022, at *5 (Tex. App.-Houston [1st Dist.] Dec. 19, 2019, no pet.) (mem. op.); In re Commitment of Mares, 521 S.W.3d 64, 71 (Tex. App.-San Antonio 2017, pet. denied); see Commitment of Bailey, 2018 WL 4140850, at *4. The court's judgment thus could not have turned on the challenged testimony-that testimony could not have controlled any material and dispositive issue. See Jackson, 675 S.W.3d at 6-7. We overrule this issue.
II. The evidence was legally and factually sufficient to support the "behavioral abnormality" element.
Nickerson's remaining appellate issues concern the legal and factual sufficiency of the evidence to support the "behavioral abnormality" element of the State's case. The legal-sufficiency issue concerns not so much the amount of evidence that the State put forward but the quality of that evidence-specifically, whether legal rules applicable to Dr. Turner's expert testimony require that it be given no weight, making it legally insufficient to support a judgment. See Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (evidence is legally insufficient when "the court is barred by rules of law . . . from giving weight to the only evidence offered to prove a vital fact"). The factual-sufficiency issue involves a more commonplace weighing of Dr. Turner's testimony against competing evidence in the record.
A. Applicable law and standard of review
Health and Safety Code chapter 841 provides for the involuntary "long-term supervision and treatment of sexually violent predators." See Tex. Health & Safety Code §§ 841.001, 841.007, 841.041, 841.081; In re Commitment of Stoddard, 619 S.W.3d 665, 669 (Tex. 2020). Proving that a person is a sexually violent predator requires proof of two elements: (1) the person is a "repeat sexually violent offender," and (2) the person "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code § 841.003(a); Commitment of Stoddard, 619 S.W.3d at 669. The burden of proof for the finding that a person is a sexually violent predator is "beyond a reasonable doubt." Tex. Health & Safety Code § 841.062(a); Commitment of Stoddard, 619 S.W.3d at 670.
"'Behavioral abnormality' means 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." Tex. Health & Safety Code § 841.002(2). "Sexually violent offense" includes the offenses of indecency with a child by contact and aggravated sexual assault of a child. See id. § 841.002(8)(A); Tex. Penal Code §§ 21.11(a)(1), 22.021(a)(1)(B), (a)(2)(B).
Because of the heightened burden of proof, appellate review of the sufficiency of the evidence to support a finding that a person is a sexually violent predator differs from the usual sufficiency review in civil appeals. The legal-sufficiency standard here requires deciding "whether, after viewing the evidence in the light most favorable to the [petitioner], any rational trier of fact could have found the essential elements . . . beyond a reasonable doubt." See Commitment of Stoddard, 619 S.W.3d at 675 (internal quotation omitted). The factual-sufficiency standard requires deciding "whether, on the entire record, a reasonable factfinder could find beyond a reasonable doubt that the defendant is" a sexually violent predator. Id. at 668. "[T]he appellate court may not usurp the jury's role of determining the credibility of the witnesses and the weight to be given their testimony . . . [and] must presume that the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so." Id. "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." Id.
"[I]n 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." Id. at 676 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). But the two types diverge over how they treat "disputed evidence that a reasonable factfinder could not have credited in favor of the finding." Id. "In a legal-sufficiency review, the court disregards such evidence in determining whether a rational factfinder could find the statutory . . . elements met beyond a reasonable doubt." Id. But "[i]n 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." Id.
B. Legal sufficiency of Dr. Turner's testimony
Nickerson's legal-sufficiency issue is about whether Dr. Turner's expert testimony was legally sufficient to support a judgment. Expert testimony is legally insufficient to support a judgment in a few instances, perhaps most notably when the proponent of the expert testimony offers no basis at all for the expert's opinions. See Houston Unltd., Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 829 (Tex. 2014). But as relevant here, even when experts testify about the bases for their opinions, their testimony still is legally insufficient to support a judgment "if the record contains no evidence supporting [the] expert's material factual assumptions." Id. at 833. This rule means that there can be cases in which there is testimony stating the expert's opinion and testimony stating the expert's bases for the opinion but the expert's testimony is still legally insufficient. See id.
Nickerson, applying this rule from Mel Acres Ranch, argues that a "material factual assumption" on which Dr. Turner based his opinions was that Nickerson showed a "consistent pattern of sexual offending over his lifetime." Nickerson argues that there was no evidence to support this material factual assumption because it was based on the hearsay records and Dr. Turner's testimony about the hearsay records could not supply the evidence necessary to satisfy the Mel Acres Ranch rule. Nickerson argues this because of the curative instructions that we laid out above-the court instructed the jury that it could not consider Dr. Turner's testimony about the hearsay records for the truth of the underlying information. We ordinarily must assume that the jury followed such instructions. Importantly, however, expert opinions depend on their bases for the opinions to have any evidentiary value. Id. at 829 ("[T]he evidentiary value of expert testimony is derived from its basis, not from the mere fact that the expert has said it."). Therefore, evidence of the bases for an expert opinion must be considered for the truth of those bases if the opinion they support is to have any evidentiary value. Smith v. Arizona, 144 S.Ct. 1785, 1798 (2024); Wood v. State, 299 S.W.3d 200, 213 (Tex. App.-Austin 2009, pet. ref'd).
In evaluating Nickerson's legal-sufficiency issue, we continue to assume, as we did above, that the jury followed the court's curative instructions not to consider Dr. Turner's testimony about the hearsay records for the truth of the underlying information. We also assume that the underlying information was material to Dr. Turner's expert opinions. See Mel Acres Ranch, 443 S.W.3d at 833 (dealing with "material factual assumptions"). Thus, we must look elsewhere in the record, beyond Dr. Turner's testimony about the hearsay records, for some evidence to support the truth of the information that Dr. Turner gleaned from the hearsay records.
Dr. Turner himself suggested that it was. For example, he testified that he could not have developed the opinions he offered in this case had he reviewed just Nickerson's convictions for sexual misconduct and not also the details that the hearsay records provided about Nickerson, his alleged victims, and the circumstances surrounding the alleged misconduct.
We conclude that the record contains some evidence from other sources so that the State cleared the Mel Acres Ranch hurdle. As support for the material factual assumption that Nickerson exhibited a "consistent pattern of sexual offending over his lifetime," Dr. Turner relied on the hearsay records, which revealed several past allegations of sexual misconduct and their surrounding details. Crucially here, to prove the truth of those allegations and their details, the State offered evidence able to be considered for its truth.
The earliest-in-time allegation against Nickerson was that in 1988 he was charged was sexual misconduct involving his then-girlfriend's minor daughter. Dr. Turner testified about what he learned about the allegation from reviewing the hearsay records. But he also testified that Nickerson made statements about the allegation and that those statements showed the same risk factors arising from this allegation that Dr. Turner otherwise gleaned from his review of the hearsay records. The jury was allowed to consider Dr. Turner's testimony about Nickerson's statements about the allegation for the statements' truth because there was no objection to the relevant testimony and because the court's curative instructions addressed only Dr. Turner's testimony about "hearsay information contained in the records reviewed and relied upon by the expert." (Emphasis added.) Because the appellate record does not show that these statements by Nickerson came only from Dr. Turner's review of the hearsay records, the statements were not subject to the curative instructions. See Commitment of Stoddard, 619 S.W.3d at 675 (legal-sufficiency review in suit for commitment of sexually violent predator requires reviewing court to view record in light most favorable to finding under attack).
Even though Nickerson's statements are admissions by a party opponent and are non-hearsay under Rule of Evidence 801(e), the statements were still "hearsay" under the definition given in the court's curative instructions had the statements been "contained in the records" that the instructions dealt with. In other words, the instructions did not instruct the jury on the exclusions from the hearsay definition provided by Rule of Evidence 801(e).
Next chronologically, Nickerson in 2006 was accused of-and later convicted for, as we explain below-digitally penetrating his then-13-year-old stepdaughter's vagina. Dr. Turner testified about the details of the offense from the hearsay records and the risk factors that those details gave rise to. But the State adduced separate evidence about the details of the offense. Dr. Turner testified that Nickerson made statements about this allegation-Nickerson said that the conduct alleged was an accident and that he thought it was his wife next to him in bed, and he variously denied the offense, admitted the conviction, and said that he did not remember what had happened. Also, the State's attorney elicited cross-examination testimony from Nickerson about the allegation and successfully offered into evidence statements signed by Nickerson from around the time of the allegation explaining what he had done to the child. Also admitted into evidence were the penitentiary packet for the conviction and Nickerson's judicial confession to the indictment, which alleged that he had digitally penetrated the vagina of a child younger than 14 years.
Later was a 2011 allegation that Nickerson sexually assaulted a 21-year-old while she was asleep. He allegedly fondled her and attempted intercourse with her, thinking that doing so was acceptable "because of the way she acted with her boyfriend and because of the revealing clothes that she wore." This alleged conduct was adjudged to be true and a violation of Nickerson's deferred adjudication for the 2006 allegation, which led to the conviction for the 2006 allegation as an offense of aggravated sexual assault of a child. The State developed the details of this 2011 allegation not only by adducing Dr. Turner's testimony about his review of the hearsay records but also by cross-examining Nickerson and successfully offering into evidence his signed voluntary statement about the allegation.
Between 2006 and 2011, Nickerson had also been accused of other alleged sexual misconduct. The allegations purportedly came from adult women who stayed in a group home where Nickerson also lived and worked and involved alleged sexual misconduct against some of the women and alleged sexually charged comments that he made to one or more children in the home. We need not decide whether the State adduced any evidence supporting the truth of these allegations because even without these allegations, the others that we review were sufficient to support the basis for Dr. Turner's opinions that Nickerson exhibited a "consistent pattern of sexual offending over his lifetime," the basis on which Nickerson grounds this appellate issue.
Finally, from 2018 there was an allegation that Nickerson sexually assaulted a 16-year-old. Nickerson was ultimately convicted for this offense of indecency with a child by contact, agreeing to a plea bargain in 2020. The child was the great-granddaughter of a woman for whom Nickerson's then-girlfriend was working as an in-home caregiver. Nickerson could not enter the home because of his sex-offender status. Still, he went in the home, found the child on a couch, and "kissed her and fondled her vagina for a period of several minutes over her clothes." This happened less than two years after Nickerson's release from prison for the conviction for the 2006 allegation. The State adduced evidence of the details of this allegation through not only Dr. Turner's testimony about the hearsay records but also cross-examination of Nickerson and successfully offering into evidence the penitentiary packet for the offense, the written plea agreement, and Nickerson's signed confession.
Dr. Turner explained that all these allegations supported the basis for his expert opinion (among other bases not raised here) that Nickerson showed a "consistent pattern of sexual offending over his lifetime." Because the State adduced evidence of the truth of that consistent pattern beyond the testimony by Dr. Turner that the court said the jury could not consider for its truth, the State met its burden under Mel Acres Ranch to adduce some evidence "supporting [the] expert's material factual assumption[]" that Nickerson puts in issue here. See 443 S.W.3d at 833. We thus overrule Nickerson's legal-sufficiency issue.
C. Factual sufficiency
In his final, factual-sufficiency issue, Nickerson rests his position on two competing sources of evidence:
[(1) t]he State's evidence not supporting [the expert]'s "material factual assumption" that Mr. Nickerson has engaged in a "consistent pattern of sexual offending over his lifetime" plus [(2)] the undisputed evidence that the State settled Mr. Nickerson's 2020 indecency case with a generous plea bargain instead of sending Mr. Nickerson to prison for just about the rest of his life.We take the reference to "[t]he State's evidence not supporting" the expert opinions' bases to be a reference to Dr. Turner's testimony about the protective factors.
In each case, the material that this issue rests on is not "so significant in light of the entire record that the factfinder could not have determined beyond a reasonable doubt that its finding was true" on the "behavioral abnormality" element. See Commitment of Stoddard, 619 S.W.3d at 668. As to the plea bargain, Nickerson's position depends on viewing the plea bargain as giving rise to only one reasonable inference, specifically, that the State does not truly believe that he is a sexually violent predator. However, there are many reasons why the State may offer a plea bargain. For example, a plea bargain would save a child victim from the experience of testifying or would avoid the loss of time and resources of a district attorney's office spent on a child-sex-abuse trial. We may not usurp the jury's role as factfinder by interpreting the plea-bargain evidence only as Nickerson interprets it. See id.; see also Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984) (explaining that when "circumstances are consistent with either of . . . two facts" that may be inferred from the circumstances "and nothing shows that one is more probable than the other, neither fact can be inferred"); In re Commitment of McCafferty, No. 02-20-00073-CV, 2021 WL 2586807, at *9 (Tex. App.-Fort Worth June 24, 2021, no pet.) (mem. op.) ("The record contains no evidence of the reason for the length of McCafferty's sentence for his third sexual offense. Any suggestion that the sentence was based on his lack of 'dangerousness' or any other reason would be speculative. Such speculation is not evidence and will not be considered by this Court."); In re Commitment of Cordova, 618 S.W.3d 904, 918 (Tex. App.-El Paso 2021, no pet.) (reasoning that "the fact that a sex offender received 'only minimal consequences' from his crimes" did not undermine factual sufficiency of evidence on "behavioral abnormality" finding against offender).
As for the protective factors, in the context of the entire record, the protective factors are not so weighty as to make the evidence here factually insufficient. Dr. Turner testified that even though Nickerson had the protective factor of advanced age, that factor was undermined because Nickerson was still offending in his advanced age. Dr. Turner also testified that despite Nickerson's low score on one of the actuarial instruments used to evaluate him, the instrument's authors have cautioned practitioners using it to exercise independent clinical judgment and other psychology experts have advised using the instrument only as a starting point when evaluating a subject. Dr. Turner testified that although Nickerson has made some plans about what to do post-release, the plans were not very "concrete." Dr. Turner added that Nickerson had not been ill-behaved while in prison.
But Dr. Turner otherwise testified about plenty of risk factors present in Nickerson and about why those risk factors were substantiated here and outweighed the protective factors. The protective factors do not make the evidence as a whole factually insufficient, so we overrule this remaining issue. See Commitment of Stoddard, 619 S.W.3d at 668.
CONCLUSION
We affirm the trial court's judgment.
Affirmed.