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reasoning that an expert's opinion was not precluded from being otherwise factually supported by his testimony even where he acknowledged that his sexually-violent-predator determination was one on which "reasonable professionals may disagree" and that the case presented "a close call"
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NO. 03-16-00662-CV
02-16-2018
In re Commitment of David Gray
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-GN-15-005350 , HONORABLE MIKE LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
In 1997, appellant David Gray was convicted of two counts of indecency with a child under 17 years old by sexual contact and one count of aggravated sexual assault of a child under 14 years old. He was sentenced to 20 years in prison. In 2015, the State of Texas filed a petition to civilly commit Gray as a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code § 841.041 (requirements for petition alleging predator status). A jury found that Gray is a sexually violent predator, and the trial court rendered a final judgment and order of civil commitment accordingly. See id. §§ 841.062(b) (jury determination that person is predator), .081(a) (order on civil commitment of predator). On appeal, Gray challenges the legal and factual sufficiency of the evidence to support the jury's verdict. We will affirm the judgment of the trial court.
DISCUSSION
In two issues, Gray claims that the evidence is legally and factually insufficient to support the jury's finding that he is a sexually violent predator. Specifically, he contends that the testimony of Dr. Darrel Turner, the State's sole expert witness, was conclusory and speculative and thus constituted no evidence that Gray is a sexually violent predator.
I. Applicable law
A sexually violent predator is 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). A "[b]ehavioral abnormality" is "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). The State must prove beyond a reasonable doubt that the person it seeks to civilly commit is a sexually violent predator. Id. § 841.062.
When reviewing a legal-sufficiency challenge to the evidence in a sexually-violent-predator case, a reviewing court assesses all of the evidence in the light most favorable to the verdict to determine whether a rational jury could find, beyond a reasonable doubt, each of the elements that the State must prove to support a judgment of civil commitment. 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 (1979)). When reviewing factual-sufficiency challenges to the evidence in sexually-violent-predator cases, a reviewing court weighs the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that requires ordering a new trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied). That risk is "essentially slight" when (1) the burden of proof is beyond a reasonable doubt and (2) the evidence is determined to be legally sufficient to support the jury's conclusion that the defendant is a sexually violent predator. Id. However, "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.
A judgment may not be supported by conclusory testimony even if a party did not object to the admission of such testimony. City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). Expert testimony is conclusory if the witness does not provide an explanation of or factual basis for his opinions. Bustamante v. Ponte, 529 S.W.3d 447, 462 (Tex. 2017). If no basis for the opinion is offered, or the basis offered provides no support, the opinion is not probative evidence, regardless of whether the complaining party objected at trial. Id. Testimony regarding such an opinion amounts to no evidence because it does not tend to make the existence of a material fact more probable or less probable. Pollock, 284 S.W.3d at 816; see Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008) (holding that expert testimony is conclusory if the expert merely gives an unexplained conclusion or asks the jury to "take my word for it" because of the expert's status as an expert).
II. Application
Gray argues that Dr. Turner's testimony that Gray suffers a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence is conclusory because, Gray contends, it is not supported by the bases Dr. Turner cited in support of his conclusions.
Gray does not challenge the sufficiency of the evidence to support the jury's finding that he is a repeat sexually violent offender. See Tex. Health & Safety Code § 841.003(a)(1).
Dr. Turner, a licensed forensic psychologist, was the State's sole expert witness. He testified regarding his education, training, experience, and methodology. He explained that, in determining that Gray suffers from a behavioral abnormality, he relied upon "thousands of pages of records," including Gray's sexual and nonsexual criminal history, offense reports, witness statements, victim statements, sentencing documents, medical records, prison records, and depositions of Gray and Gray's expert witness, Dr. Stephen Thorne. He also conducted a two-hour interview with Gray and administered various psychological testing on Gray "in accordance with [his] training as a forensic psychologist."
Because Gray did not object to the admission of Dr. Turner's testimony before or during trial, the methodology, technique, or foundational data underlying his testimony are not subject to review on appeal. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). We are instead limited to evaluating whether Dr. Turner's testimony is speculative or conclusory "on its face." Id.; compare Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348-49 (Tex. 2015) (explaining challenges to expert testimony as unreliable), with Bustamante v. Ponte, 529 S.W.3d 447, 462 (Tex. 2017) (explaining challenges to expert testimony as conclusory).
Dr. Turner testified extensively regarding risk factors for sexually reoffending. According to Dr. Turner, a risk factor is a variable that increases the likelihood that the person will sexually reoffend beyond the "average sex offender or more so than the sex offender that does not have that variable present." The two primary risk factors that Dr. Turner testified that Gray exhibited were sexual deviance and antisocial personality disorder.
A. Sexual deviance
Dr. Turner described sexual deviance as engaging in behaviors "outside the normal realm of sexual activity or sexual attraction" and testified that Gray possesses numerous indicators of sexual deviance.
Dr. Turner stated that a primary indicator of sexual deviance is pedophilia, defined as sexual attraction to prepubescent children. He testified that, using the Diagnostic and Statistical Manual of Mental Disorders, he diagnosed Gray with pedophilic disorder. He explained that pedophilia is also characterized by "victim blame," which includes "an attribution of sexual characteristics and desires to children." He testified that Gray exhibited victim blame in describing his niece, J.S., who was ten years old when he sexually assaulted her, and his daughter, J.G., who was three years old when he sexually assaulted her. Gray stated that J.S. "wasn't fighting me; as a matter of fact, she opened her legs," implying that she was a "willing participant." Gray also described an incident in which J.G. "ran outside naked and spread her legs open for him and showed him her vagina." Dr. Turner testified that such a mentality indicates that the condition is "currently active" in Gray and increases his risk of reoffending. He noted that "[t]he fact that [Gray's] daughter was three years old" at the time of the offense was "indicative of additional sexual deviance."
Dr. Turner further testified that the details of the sexual offenses for which Gray was convicted demonstrate sexual deviance. One such fact was Gray's use of some level of violence against his victims. He explained that records showed that Gray told J.S., "I'm going to make you a woman soon," restrained her hands above her head, and then sexually assaulted her while she was "crying and struggling and asking him to stop." Dr. Turner also cited Gray's use of "a stick" when he sexually assaulted J.G., relying on records indicating that J.G. had reported that "Daddy put a stick in me." Dr. Turner cited other records "indicat[ing] that Mr. Gray fondled her vagina with his hand and stuck a stick into her vagina as well, and offense narratives indicate that he also twisted the stick and punctured her hymen at that point." He confirmed that records showed that he had hit J.G. in various parts of her body with a stick, including "the outside of her vagina." Dr. Turner also testified regarding a victim statement provided by J.G. following the offense:
Her term for her vagina was pail box (phonetic). So she says, he was touching my pail box. He touched me. They asked what he touched her with. She said, with that stick. How did - they asked, how did that make your pail box feel? She said, it hurt. He said he does that when he wants to. And then she talks about him hitting her with the stick and things like that.Dr. Turner also explained that the fact that Gray had assaulted J.S., his niece, while in the presence of his five children further signifies sexual deviance.
Dr. Turner also cited reports indicating that Gray had repeatedly sexually assaulted the victims on multiple occasions beyond the three offenses for which he was convicted. Those reports included witness statements and interviews indicating that the abuse "had been ongoing for some time" and had "happened on numerous occasions." Dr. Turner explained that the reports "establishe[d] a pattern of sexual deviance," his attraction to children, and the likelihood that he will reoffend.
Dr. Turner further testified that another significant fact demonstrating sexual deviance was Gray's refusal to accept responsibility for his criminal conduct or deviant tendencies. He explained that Gray persistently denied being a sex offender or being sexually attracted to children. While Gray admitted to some of the facts of his sexual assaults of J.S., he denied that the assaults were sexually motivated. Rather, he repeatedly maintained that he had sexually assaulted her to "get CPS involved so that they would get the children out of the home because he was no longer able to take care of them." Dr. Turner testified that Gray "downplayed" the assault against J.S., informing Dr. Turner that he "didn't think it was that serious of a charge" and did not believe that it had affected J.S. Dr. Turner's testimony was corroborated by Gray's testimony at trial, in which he denied that the assaults were sexually motivated and insisted that he had committed the offenses to protect his children. Gray also testified that he believed his sentences were too severe, stating that "I could have got a little less than what I got." Dr. Turner testified that Gray "has no insight into his behavior at all." He explained that because Gray does not see himself as a sex offender, he "has no ability to recognize when [he's] in a dangerous position and doesn't even, frankly, see the need for any type of intervention."
B. Antisocial personality disorder
Dr. Turner further testified that he had diagnosed Gray with antisocial personality disorder, which he identified as a second primary factor increasing Gray's risk of reoffending. Dr. Turner explained that a person with antisocial personality disorder "has little to no regard for the safety or well-being of other people, has little to no remorse for their actions or empathy," and engages in "chronic rule breaking behaviors and manipulation and conning sort of criminal attitude."
Dr. Turner stated that one trait of antisociality is a lengthy sexual and nonsexual criminal history. Dr. Turner cited Gray's history of sexual offending, which included two convictions for sexual indecency with a child by sexual contact and a conviction for aggravated sexual assault against a child. He also testified regarding Gray's nonsexual criminal history, which began in Gray's childhood and contains multiple convictions throughout his life prior to incarceration for the sexual offenses. Those offenses ranged from theft and intoxication offenses to assaults and injury to a child by kicking, which was corroborated by other evidence. Dr. Turner also cited the fact that Gray had committed 22 disciplinary infractions while in prison, one of which was attempting to establish an inappropriate relationship with a female staff member. Dr. Turner explained that that infraction was of particular significance because it "connotes . . . a sexual theme. And it occurred while he was incarcerated, and it's evidence of an inability to control those types of urges and behaviors even when he's . . . incarcerated."
Dr. Turner also testified that Gray scored a 26.3 out of 40 on the Psychopathy Checklist-Revised, which Turner explained means that Gray "has a high degree of psychopathic traits and he would be classified as a psychopath." Dr. Turner highlighted various psychopathic-test categories in which Gray scored high, some of which included pathological lying, as evidenced by his numerous conflicting accounts of the offenses, his sexual proclivities, his treatment history, and his history of substance abuse; manipulation, evidenced by Gray's efforts to "ingratiate himself with" Dr. Turner during the interview; distorted thinking and self-perception, such as "[d]escribing himself as a hero" in recounting the offenses and engaging in victim blame; as well as lack of remorse, poor behavioral control, promiscuous sexual behavior, impulsivity, and irresponsibility. He stated that psychopathy is closely related to reoffending, so the fact that Gray "scores in the range of being a psychopath is especially alarming."
Dr. Turner testified that the presence of those two risk factors—sexual deviance and antisociality—is "an especially dangerous combination in terms of someone's risk of re-offending in a sexually violent manner." He explained that they demonstrate a person's willingness to act on sexually deviant impulses and increases the risk of reoffending "exponentially."
C. Other risk factors
Other risk factors that Dr. Turner identified in support of his opinion included lack of sexual-offender treatment; a history of substance abuse that included "severe alcohol use disorder," as well as marijuana, cocaine, and methamphetamine use; diagnosed schizophrenia, which caused delusional, paranoid beliefs, hallucinations, and other symptoms affecting impulsivity and decisionmaking; a "transient" and "general unstable lifestyle," including Gray's inability or unwillingness to maintain employment; minimal social support; and lack of a release plan.
Dr. Turner confirmed that, based on his education, training, experience, and the methodologies he utilized, he had concluded with a reasonable degree of scientific certainty that Gray suffers from a behavioral abnormality that "represents a high risk" that he will engage in future predatory acts of sexual violence.
D. Gray's arguments
Gray argues that Dr. Turner "'cherry picked' portions of the underlying records that tended to support his diagnosis and ignored portions that did not." In support, he cites testimony provided by his own expert, Dr. Thorne, regarding his conclusion that Gray did not suffer a behavioral abnormality that presents a heightened risk of reoffending. Dr. Thorne testified about mitigating protective factors that reduced Gray's risk of recidivism. Gray claims that Dr. Turner failed to give sufficient weight to those protective factors.
One factor Gray cites is the fact that he scored a "positive one" on the Static-99R—an actuarial test that measures likelihood of sexual reoffending—which indicates a low risk of reoffending. Dr. Turner testified extensively regarding Gray's Static-99R score. He explained that it is not an "overall statement of this person's risk level" because the test measures only "static factors" and not "dynamic risk factors," such as the details of a person's sexual deviance, antisociality, and other risk factors Dr. Turner had previously identified. He testified that the authors of the test warn that it is but one tool in measuring an offender's risk of recidivism. He explained that, in light of the substantial other evidence that he considered in his evaluation of Gray, he did not believe that the score was an accurate representation of Gray's level of risk. He testified that Dr. Thorne had agreed in a prior deposition that the score underestimated Gray's level of risk. Similarly, Dr. Thorne testified at trial that the score is "a piece of the puzzle, an important piece, but only a piece."
Gray cites other protective factors about which Dr. Thorne testified—including Gray's advanced age, his "positive youthful achievements," his sobriety while incarcerated, that he is currently treating his schizophrenia with medication, his relatively few sexual-offense convictions, and the facts that his victims were neither male nor "extrafamilial"—as evidence that Dr. Turner's opinion is unsupported by the record. Dr. Turner acknowledged the existence of various protective factors and agreed that, with regard a sexually-violent-predator determination, reasonable professionals may disagree. Dr. Thorne agreed that Gray presented "at least a moderate risk of sexual re-offense" and that the case presented "a close call" for him. We cannot conclude that evidence supporting the existence of mitigating protective factors demonstrates that Dr. Turner's opinion regarding Gray's risk of recidivism is wholly unsupported by explanation or a factual basis so as to render it no evidence. See Bustamante, 529 S.W.3d at 462; see also Day, 342 S.W.3d at 213 ("[C]ommitment proceedings are decided on evidence that concerns the application of a 'soft' science that calls for the exercise of a considerable amount of intuitive judgment on the part of experts with specialized training.").
Gray further complains that the record contains no evidence supporting Dr. Turner's testimony that Gray used a stick when he sexually assaulted J.G. He also argues that Dr. Turner's statement that J.G. suffered a "punctured hymen" as the result of Gray's use of a stick during his sexual assault of her was not supported by the medical records. First, Gray did not object to Dr. Turner's testimony on those bases before or during trial and thus did not preserve those issues for appeal. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). Second, experts are not required to introduce foundational data at trial unless the opposing party or the court insists. Bustamante, 529 S.W.3d at 465. Third, Dr. Turner cited both witness statements and medical reports in support of his assessment and testimony regarding Gray's use of a stick against J.G.
Gray also asserts that Dr. Turner's punctured-hymen statement was prohibited under Texas Rule of Evidence 705 because it did not constitute "underlying facts or data" as contemplated by that rule. However, the record does not reveal that Gray objected to Dr. Turner's statement on that basis at trial or that Gray requested a limiting instruction under that rule. Consequently, we cannot address that argument on appeal. See Tex. R. App. P. 33.1(a)(1); Morris v. State, 123 S.W.3d 425, 428 (Tex. App.—San Antonio 2003, pet. ref'd).
Gray further argues that Dr. Turner's punctured-hymen testimony was contradicted by medical records indicating that J.G. had a "normal physical exam" following the assault and did not indicate that her hymen had been punctured. On cross-examination, Dr. Turner acknowledged those records and conceded that he was unsure if "a small central opening in hymen" as indicated in the records was "normal." Assuming without deciding that Dr. Turner misinterpreted certain medical records regarding J.G.'s physical examination following Gray's sexual assault of her, we conclude that any such error would not render Dr. Turner's testimony wholly conclusory and thus insufficient to support the judgment. Dr. Turner offered that information only once over the course of his other extensive testimony, which we have concluded was supported by numerous other factual bases and explanation. See id. at 462 (holding expert testimony was not conclusory, despite certain flaws, where expert cited bases for opinion that supported his opinion). Moreover, Dr. Turner explained that the medical records indicated that the examination was "consistent with [J.G.'s] claim" of previous vaginal penetration. Finally, defense counsel extensively cross-examined Dr. Turner on that issue, and the jury was free to determine what weight to give that testimony. See Mullens, 92 S.W.3d at 887 (factfinder is tasked with resolving conflicts in testimony, weighing evidence, and drawing reasonable inferences from facts).
In sum, we conclude that Dr. Turner's testimony was not speculative or conclusory and that the jury was therefore free to consider it as probative evidence of the ultimate issue. Therefore, having viewed the evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support the judgment because a rational jury could have found, beyond a reasonable doubt, that Gray suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code §§ 841.003(a), .062(a); Mullens, 92 S.W.3d at 885. Furthermore, having weighed all of the evidence, we conclude that the verdict does not reflect a risk of injustice that would compel ordering a new trial and thus conclude that the evidence is factually sufficient to support the judgment. See Day, 342 S.W.3d at 213. We overrule both of Gray's issues.
CONCLUSION
We affirm the judgment of the trial court.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed Filed: February 16, 2018