Opinion
NO. 09-11-00268-CV
09-27-2012
IN RE COMMITMENT OF CHARLES RAY RUSHING
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-07-07537 CV
MEMORANDUM OPINION
Charles Ray Rushing appeals, challenging the civil commitment that a trial court ordered after a jury found him to be a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP statute). In his appeal, Rushing raises three issues that challenge the legal and factual sufficiency of the evidence. Because the evidence is legally and factually sufficient to support the jury's verdict, we affirm the trial court's judgment.
Legal Sufficiency
Rushing's first two issues, which challenge the legal sufficiency of the evidence supporting the jury's verdict, require that 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. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). In jury trials, the jury determines the credibility of the witnesses, weighs the testimony and the other evidence, resolves any conflicts in the evidence, and from the evidence admitted at trial, draws reasonable inferences from basic facts to ultimate facts. Id. at 887. When the evidence supporting the jury's verdict is challenged on appeal, 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).
Expert Opinion
Rushing's legal insufficiency arguments concern the testimony of the State's expert witnesses, Dr. Timothy Proctor, a psychologist, and Dr. David Self, a psychiatrist. Both experts expressed the opinion that Rushing suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Rushing's challenge with respect to both experts concerns the degree to which the State's evidence showed that Rushing was likely to reoffend.
With respect to Rushing's recidivism risk, Dr. Proctor stated that "'likely' means probable. And something that's probable is beyond a mere possibility or potential for harm." He explained that there is no empirical measurement to determine the ultimate issue of whether someone has a behavioral abnormality that makes them likely to reoffend; it requires the exercise of clinical judgment. According to Dr. Self, "likely" means "probable . . . something that has some likelihood of occurring, is a probability that something will occur." He explained that "I think there is subjective notion in there somewhere that the more severe an act is the less likely or frequently it has to be taken very seriously." On cross-examination, he explained that it meant more than a mere possibility.
In his first issue, Rushing argues that Dr. Proctor and Dr. Self failed to apply the proper standard in predicting Rushing's recidivism risk, rendering their opinions unreliable and irrelevant. Rushing argues that based on their opinion testimony, the evidence before the jury is legally insufficient "to support a finding that [he] is likely to commit acts of sexual violence."
According to Rushing, the State's experts improperly relied on our statements in Beasley v. Molett to derive a meaning for the term "likely," which is used in section 841.003 of the Texas Health and Safety Code in defining the meaning of the term "sexually violent predator." See Beasley v. Molett, 95 S.W.3d 590, 599-600 (Tex. App.— Beaumont 2002, pet. denied). That section of the SVP statute provides "[a] person is a sexually violent predator for the purposes of this chapter if the person: (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." Tex. Health & Safety Code Ann. § 841.003. Rushing argues that Beasley "declined to define [']likely['] further except to note it does not mean a mere possibility."
Statutory Construction
We previously rejected the same argument that Rushing is making here. See In re Commitment of Kirsch, No. 09-08-00004-CV, 2009 WL 2045238, at *6 (Tex. App.— Beaumont Jul. 16, 2009, pet. denied) (mem. op.). In a SVP commitment proceeding, the jury determines "whether, beyond a reasonable doubt, the person is a sexually violent predator." Tex. Health & Safety Code Ann. § 841.062. Section 841.003(a) describes a "sexually violent predator" without defining "likely." See Tex. Health & Safety Code Ann. § 841.003. Noticeably absent from the statute describing a sexually violent predator is any requirement that the person's behavioral abnormality make the person more likely than not to engage in a predatory act of sexual violence. See id.
In determining legislative intent, we presume "that: (1) compliance with the constitutions of this State and the United States is intended; (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest." Tex. Gov't Code Ann. § 311.021 (West 2005). The words and phrases found in a statute "shall be read in context and construed according to the rules of grammar and common usage[,]" and "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Id. § 311.011 (West 2005). In construing a statute, we consider the (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. Id. § 311.023 (West 2005).
The SVP statute accomplishes dual interests that are possessed by the State: (1) the parens patriae power to provide care to its citizens who are unable because of emotional disorders to care for themselves; and (2) the police power to protect the community from the dangerous tendencies of some who lack volitional control over certain types of dangerous behaviors. See In re Commitment of Fisher, 164 S.W.3d 637, 651 (Tex. 2005). Through long-term supervision and treatment, the SVP statute addresses the risk of repeated predatory behavior by persons suffering from behavioral abnormalities not amenable to traditional mental illness treatment modalities. See Tex. Health & Safety Code Ann. § 841.001. The intended result of the statute is to prevent repeated predatory behavior by providing sex offender treatment to persons afflicted with a difficulty controlling their behavior that predisposes them to sexual violence to the extent they become a menace to the health and safety of others. See id. § 841.002(2).
To withstand constitutional scrutiny, the statute must narrow the class of persons eligible for commitment to those who are unable to control their dangerousness. See Kan.v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). As the Supreme Court of the United States has noted, inability to control behavior in these types of cases will not be demonstrable with mathematical precision. See Kan. v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). "It is enough to say that there must be proof of serious difficulty in controlling behavior." Id. Thus, as a matter of due process we "distinguish[] a person who because of serious behavioral abnormality poses a serious danger, from a person who, though free of such a condition, is dangerous for reasons more appropriately dealt with through the criminal laws." In re Commitment of Almaguer, 117 S.W.3d 500, 505 (Tex. App.—Beaumont 2003, pet. denied).
Given the purpose of the SVP statute and the inherent difficulty of predicting human behavior in terms of a mathematical calculation, the Legislature's decision to use the term "likely" instead of the term "more likely than not" to define the term "sexually violent predator" was not accidental. See Tex. Health & Safety Code Ann. § 841.003(a). Instead, it was a calculated decision to include within the program's reach those persons predisposed to committing a future sexually violent crime if freed from prison and left without the oversight and supportive assistance that could otherwise be made available, with the goal of decreasing future occurrences of sexually violent offenses. See In re Bohannan, 55 Tex. Sup. Ct. J. 1337, 2012 Tex. LEXIS 734, at *15 (Tex. Aug. 31, 2012).
Competence of Experts' Testimony
Rushing contends the State's experts' opinion testimony—that Rushing suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence—totally lacks any probative weight because the opinions were stated in terms of a probability being more than a mere possibility. In forming his opinion, Dr. Self considered that Rushing has been diagnosed with pedophilia, that his offending persisted over fourteen years, and that Rushing had received sex offender treatment. After considering Rushing's history, tests, and interviewing him, Dr. Proctor diagnosed Rushing with pedophilia, sexually attracted to females, nonexclusive type. Both experts considered that Rushing had engaged in high risk behavior by socializing with children at his apartment complex and reoffended after his first incarceration, notwithstanding the fact he had received sex offender treatment and was under mandatory supervision. Dr. Proctor stated that these behaviors revealed the strength of Rushing's deviancy. After reviewing the evidence, we conclude that both of the State's experts articulated a serious and well-founded risk of releasing Rushing from prison without further sex offender treatment.
"[E]vidence that might be 'some evidence' when considered in isolation is nevertheless rendered 'no evidence' when contrary evidence shows it to be incompetent." City of Keller, 168 S.W.3d at 813. In this case, the experts' explication of the use of the word "likely" in the SVP statute as a probability greater than a mere possibility did not render their opinions incompetent. See In re Commitment of Kalati, 370 S.W.3d 435, 439-40 (Tex. App.—Beaumont 2012, pet. filed); In re Commitment of Kirsch, 2009 WL 2045238, at *6. We conclude the testimony of the State's experts provides support for the jury's finding that Rushing is a sexually violent predator. We overrule issue one.
Unsupported Conclusions
In his second issue, Rushing contends the evidence is legally insufficient to prove beyond a reasonable doubt that he is likely to reoffend. Rushing argues the State's experts offered no support for their conclusions. He challenges Dr. Proctor's opinion as contrary to the evidence because Dr. Proctor made an upward departure from the objective scoring of an actuarial test administered to Rushing to assess his recidivism risk. Rushing also argues that Dr. Self failed to cite specific research to support his conclusion that the manner of Rushing's denial about his prior behaviors makes him a person that is difficult to manage.
The jury was required to decide whether the State proved, beyond a reasonable doubt, that Rushing "suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence[.]" Dr. Proctor and Dr. Self each provided a professional opinion supporting an affirmative answer to this question. However, if an expert bases his opinion on an assumption contrary to the undisputed facts, the opinion is unreliable and has no probative value. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009).
Rushing argues Dr. Proctor's opinion testimony is based on incorrect facts, but that claim, in our view, is not supported by the record. A comparison of the testimony of Dr. Proctor's with that of the psychologist who testified for Rushing, Dr. Charles Woodrick, reveals that what Rushing argues is an opinion based on incorrect facts is actually a difference of opinion based on the reasonable exercise of professional judgment.
Both doctors agreed that Rushing is a pedophile, but is not psychopathic. Both experts used actuarial instruments commonly used in their field and scored them similarly. Dr. Woodrick agreed that the actuarials do not take into account everything that should be considered in Rushing's case. Dr. Woodrick explained that he and Dr. Proctor arrived at different ultimate conclusions because Dr. Proctor relied more upon clinical judgment and less on the actuarial instruments. Dr. Woodrick agreed that some practitioners, such as psychiatrists, rely solely on clinical judgment and that such an approach is acceptable practice. He also used clinical judgment, considering protective factors such as having a realistic post-release plan for residence and employment, being involved in a stable relationship with an adult female, lacking significant drug or alcohol abuse, and lacking a criminal history other than two sexual offenses. According to Dr. Woodrick, Rushing's negative risk factors include a moderate risk score on the sex offender recidivism scale, previous recidivism, denial of the offenses, and violation of conditional release after the first incarceration. However, Rushing's denial of the offenses did not influence Dr. Woodrick's evaluation because in his experience half of the sex offenders he interviews deny their offenses.
Both Dr. Proctor and Dr. Woodrick also considered extra risk factors not contained in the actuarial instruments, including an offense that Rushing committed while on supervision and several sexual offenses that did not result in convictions or incarcerations. Although Dr. Woodrick considered Rushing's denial of the offenses, Dr. Woodrick did not think that changed Rushing's recidivism risk, while Dr. Proctor did. Dr. Woodrick stated that he and Dr. Proctor were exercising clinical judgment, and that the exercise of clinical judgment is appropriate.
Having carefully reviewed the testimony in the record, we conclude that Dr. Proctor neither relied upon facts not in the record nor unreasonably disregarded facts in the record that could not be disregarded. Thus, his testimony is not unsupported by the evidence as Rushing contends.
We also conclude that Dr. Self's testimony is supported by the record. As a practicing psychiatrist, Dr. Self does not score actuarials. Dr. Self explained that actuarials are a structured way to analyze risk factors, and those factors also drive his decision making. Dr. Self acknowledged this approach is acceptable psychiatric practice. Dr. Self diagnosed Rushing with pedophilia, a life-long condition. Dr. Self explained that a person with that condition does not necessarily have a behavioral abnormality, but that a criminal history of repeated commission of sexual offenses does indicate behavioral abnormality. According to Dr. Self, Rushing's risk factors are reflected by his sexual criminal history, which include offenses against at least four victims, with two of those being unrelated to him; sexual deviance that includes pedophilia and a fascination with performing oral sex; Rushing's total denial of having committed any sexual offenses; Rushing's failure to maintain stable adult relationships while not incarcerated; and the failure of previous treatment and supervision to correct Rushing's lack of control over his sexual behaviors. Dr. Self also mentioned several factors that were positive influences regarding Rushing's recidivism risk, including Rushing's lack of a psychopathic or antisocial personality, and his age.
On appeal, Rushing focuses on Dr. Self's testimony regarding Rushing's denial of committing sexual offenses, and he argues that Dr. Self's testimony has no probative weight because he failed to cite specific research supporting his conclusion that denial is a robust risk factor. Dr. Self explained that clinical judgment is based on experience and knowledge and focuses on the individual case. Dr. Self testified that he considered Rushing's denial of the commission of the offense to show a tolerant attitude toward sexual assaults of little girls. Dr. Self did cite a researcher, Hanson, to support that statement, and Dr. Self stated that according to research by Hanson, an individual's attitude and tolerance of sexual assault are robust predictors.
Generally, if an expert bases his opinion on "assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment." Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995). If no basis for an opinion is offered, or if the basis offered provides no support, the opinion is conclusory and is not given any probative value. See City of San Antonio v. Pollock, 284 S.W.3d 809, 819-20 (Tex. 2009). But where, as here, an expert provides a basis for his opinion and that basis is supported by the record, the jury may give the opinion weight—in that case, the appellate court is not at liberty to disregard the expert's opinion. See Thota v. Young, 366 S.W.3d 678, 695 (Tex. 2012); City of Keller, 168 S.W.3d at 827. With respect to the opinions offered by the State's experts in this case, the jury could reasonably resolve any conflicts or contradictions with respect to their testimony by believing all, part, or none of their testimony. See In re Commitment of Mullens, 92 S.W.3d at 887. We conclude the evidence of the State's experts is some evidence that supports the jury's verdict. We overrule issues one and two.
Factual Sufficiency
Rushing's third issue maintains the evidence is factually insufficient to support the jury's verdict. In reviewing the factual sufficiency of the evidence in an SVP case, we must weigh the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that compels ordering a new trial. See In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied). 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. Id. 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.
Relying in part on his trial testimony that he has a relationship with an adult female and does not feel a sexual attraction to children, Rushing argues that the evidence that he will offend again is based on the State's experts' clinical judgment that considered factors that were not shown to have been proven through research to have predictive value. The State's experts and Rushing's expert largely agreed on the risk factors and protective factors present in this case. Referring to a 2007 paper titled "'Denial Predicts Recidivism for Some Sexual Offenders[,]'" Dr. Woodrick offered his opinion that denial would not play a role in Rushing's case. Dr. Woodrick agreed that denial shows lack of good insight, but Rushing's denials of the offenses was not a factor that caused Dr. Woodrick to change his opinion about Rushing's recidivism risk. In contrast, Dr. Proctor and Dr. Self felt that denial elevated the risk of reoffending because it is difficult for a person to change if he has failed to recognize problems with his past behaviors. Similarly, the experts placed different emphasis on the fact that Rushing reoffended after he received sex offender treatment and while he was on supervision. Dr. Woodrick felt it was "[i]mportant but not significant[]" but Dr. Self felt it was a large risk factor because "over time you see how many of them do it again."
We conclude that the points of disagreement between the experts were adequately explored before the jury, and the jury's resolution of the issues does not present a risk of injustice that compels granting Rushing's request for a new trial. See In re Commitment of Day, 342 S.W.3d at 213. We overrule issue three, and we affirm the trial court's judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Before McKeithen, C.J., Kreger and Horton, JJ.