Summary
finding Coble inapposite in a challenge to the legal sufficiency of the evidence supporting a behavioral-abnormality finding because the offender did not raise a challenge to the reliability of the expert's opinion in the trial court
Summary of this case from In re KingOpinion
NO. 09-11-00371-CV
03-22-2012
IN RE COMMITMENT OF MELVIN CROSBY
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-08-08986-CV
MEMORANDUM OPINION
Melvin Crosby appeals a judgment and order of civil commitment as a sexually violent predator. We affirm the trial court's judgment.
Crosby's first two issues challenge the legal sufficiency of the evidence to support the verdict that Crosby "suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence." See Tex. Health & Safety Code Ann. § 841.003(a) (West 2010). "Behavioral abnormality" is statutorily 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." Tex. Health & Safety Code Ann. § 841.002(2) (West Supp. 2011). The person's inability to control his behavior "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002).
When reviewing the legal sufficiency of the evidence, we assess all 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 statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). It is the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 887. As the reviewing court, we "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In addition, we must "consider [the] evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it. But if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it." Id. at 822 (footnotes omitted).
The State offered expert testimony from a licensed clinical and forensic psychologist, Dr. Stephen A. Thorne, and a psychiatrist specializing in forensic psychiatry, Dr. Lisa K. Clayton. Crosby did not object to the testimony offered by these two expert witnesses. To preserve for appeal a sufficiency complaint that challenges the expert's underlying methodology, technique, or foundational data reliability, an objection must be raised either before trial or when the State offers the opinion in evidence. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-33 (Tex. 2004). "When a scientific opinion is admitted in evidence without objection, it may 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). A verdict cannot be sustained upon a mere ipse dixit of a credentialed witness, however. Id. "[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." Id.
Crosby concedes that Thorne identified the risk factors that Thorne considered in his assessment of Crosby, but argues that Thorne failed to bridge the analytical gap between the diagnosis of pedophilia and the ultimate conclusion of a behavioral abnormality. First, Crosby analogizes Thorne's testimony to that of a forensic psychiatrist who testified in a capital murder trial. See Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 3030, 180 L. Ed. 2d 846 (2011). In Coble, the Court of Criminal Appeals held that the trial court erred in admitting testimony about the expert's own personal methodology for determining future dangerousness. Id. at 271, 279-80. The expert provided no objective source material and he had never reviewed his prior predictions to test his hypothesis. Id. at 277, 279. Coble concerns a trial-court level challenge to the reliability of the methodology underlying the expert's opinion. Id. at 279-80. Crosby did not raise a challenge of this type in the trial court; thus, Coble is inapposite.
Crosby argues that Thorne failed to show how Crosby's diagnosed pedophilia proved that he has a behavioral abnormality. Thorne described both his review of Crosby's records and his interview of Crosby. Thorne explained how the insight he obtained from this process contributed to his ultimate opinion that Crosby's repeated commission of sexual assaults on girls and boys over a long period of time showed that he has a problem refraining from sexually deviant behavior with children and adolescents. He also described the psychological test and the actuarial instruments he utilized in evaluating the risk posed by Crosby, and Thorne explained how he applied those tests and instruments in this case. We cannot conclude that Thorne's opinion was baseless.
Crosby also concedes that Clayton identified the factors that she considered in forming her opinion, but he contends that Clayton's opinion is insufficient as a matter of law because she used what Crosby refers to as "home-grown risk factors" of the type disapproved in Coble. See Coble, 330 S.W.3d at 278-79. Crosby did not challenge the reliability of Clayton's methodology at trial and cannot do so here. See Coastal, 136 S.W.3d at 232-33. Moreover, Clayton described the criteria for the medical diagnoses, applied it to Crosby, and explained how Crosby's psychiatric condition and his minimization of the acts he had committed resulted in a lack of coping mechanisms to prevent reoffense. Thus, Clayton did not provide a baseless opinion that Crosby has a behavioral abnormality. We overrule issue one.
In his argument for his second issue, Crosby contends that the State failed to prove beyond a reasonable doubt his inability to control his behavior. Crosby notes that Thorne testified that Crosby scored in the low range for reoffending based on the Static-99 and that Crosby's MnSOST-R score of positive 4 places him in the moderate range of risk for reoffense, which according to the authors of the test means forty-five percent of persons reoffend within six years.
Thorne explained that the Static-99 scored Crosby's multiple sexual convictions only as one conviction, while the records showed that Crosby sexually abused his daughter and her siblings for over a period of seven years. Thorne also explained that Crosby probably meets the criteria for a score of positive 8 on the MnSOST-R, which would elevate his risk level for reoffense to approximately seventy percent within six years. Viewed in the light most favorable to the verdict, the evidence is legally sufficient to allow the jury to have concluded that Crosby has serious difficulty controlling his behavior. We overrule issue two.
In his third issue, Crosby contends that the trial court erred in preventing counsel from asking what Crosby refers to as a "proper commitment question." A trial court abuses its discretion when its denial of the right to ask a proper question prevents a party from determining whether grounds exist for a challenge for cause or if it interferes with the intelligent use of peremptory strikes. In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011). During jury selection, counsel asked the venire: "If the evidence shows that Mr. Crosby has committed one or more sex offenses does this automatically cause you to make up your mind about the rest of the case?" A member of the venire responded, "I think he's probably guilty[.]" A series of exchanges between counsel and a few members of the venire followed. Evidently concerned that the venire members were confused about whether Crosby was being tried for a criminal offense, the trial court suggested that counsel phrase the question in such a way that the venire would not be confused between civil commitment and conviction for a crime. The trial court cautioned that "we have to use that word, [commit] Mr. Crosby based on that evidence alone or would they require the State to also prove the second element which is behavioral abnormality" and reminded counsel "you're not really getting anyone struck for cause unless you use that question." Counsel moved on to another subject—whether the members of the venire would automatically believe a witness because the witness was called an expert—and did not return to the original line of questioning. At no time during this exchange did the trial court disallow a question that counsel wanted to ask the venire. The trial court interrupted the exchange of questions and answers to suggest how the questions might be more effectively stated, but unlike in Hill, the trial court here did not prohibit a line of permissible questioning. Hill is distinguishable. See id. at 228, 230. We overrule issue three.
In his fourth and final issue, Crosby contends that the evidence supporting the jury's verdict is factually insufficient, and that consequently the trial court erred in failing to grant Crosby's motion for new trial. Crosby notes that he testified that he was intoxicated when he committed one of the sexual offenses. On appeal, Crosby argues that his purported risk of recidivism could be reduced by traditional treatment modalities for alcohol abuse. Dr. Thorne addressed Crosby's alcohol use, and expressed his opinion that "alcohol has probably caused him difficulties," but he declined to make a specific diagnosis relating to alcohol because "it's not all that relevant to the behavior abnormality issue." Thorne agreed that alcohol consumption affects emotional and volitional capacity. Dr. Clayton diagnosed Crosby with "alcohol abuse currently in remission due to his incarceration[.]" Clayton noted that alcohol use is a disinhibitor that increases someone's risk-taking behavior, and she considered it to be a contributing factor of how he might reoffend. Neither Dr. Thorne nor Dr. Clayton suggested or implied that Crosby would not be at risk to reoffend if he remained sober.
The risk of an injustice arising from the weight of the evidence is necessarily slight when the burden of proof is beyond-a-reasonable-doubt and the evidence is legally sufficient. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied). Nonetheless, "if in the view of the appellate court after weighing the evidence, the risk of an injustice remains too great to allow the verdict to stand, the appellate court may grant the defendant a new trial." Id. As we have held, the evidence in this case is legally sufficient to support the verdict. Although there was evidence in the record that Crosby committed a sexual offense while he was intoxicated, no compelling evidence that alcohol treatment would adequately address his behavioral abnormality appears in this record. We overrule issue four and affirm the trial court's judgment.
AFFIRMED.
___________________________
CHARLES KREGER
Justice
Before Gaultney, Kreger, and Horton, JJ.