Opinion
NO. 14-17-00051-CV
04-17-2018
IN RE COMMITMENT OF THOMAS JOSEPH STERNADEL, Appellant
On Appeal from the 339th District Court Harris County, Texas
Trial Court Cause No. 572237-0101Z
MEMORANDUM OPINION
Thomas Joseph Sternadel appeals his civil commitment under the sexually violent predator statute. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001-.153 (West 2017 & Supp. 2017) ("the SVP statute"). For a person to be found to be a sexually violent predator, two elements must be proved: (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. Id. § 841.003(a). Sternadel contends that the trial court violated his right to a jury trial by granting a partial directed verdict as to the first element, and that the evidence is legally and factually insufficient to support a finding of the second element. We affirm.
I. BACKGROUND
In 1983, Sternadel pleaded guilty to indecency with a child by sexual contact and was sentenced to five years' confinement for touching the genitals of a thirteen-year old girl who lived nearby. In 1991, he was twice convicted of aggravated sexual assault of a child for performing oral sex on a ten-year-old boy and anal sex on an eight-year-old boy. We will refer to the three child victims as Beryl, Alberto, and Chris. Sternadel was sentenced to twenty-seven years' confinement for the aggravated sexual assault convictions, and was expected to completely discharge his sentence in August 2017. Anticipating Sternadel's discharge, the State of Texas petitioned the Harris County District Court to declare Sternadel a sexually violent predator and to civilly commit him for treatment and supervision.
To protect the children's identities, we have used as pseudonyms the first female and the first two male names from this year's list of Atlantic tropical-cyclone names.
At the close of evidence, the trial court granted the State's motion for a partial directed verdict on the first element, that is, on the question of whether Sternadel is a "repeat sexually violent offender."
In the charge, to which there was no objection, the jury was asked if it found beyond a reasonable doubt that Sternadel is a sexually violent predator. The jury answered, "yes." The trial court accordingly ordered that, upon Sternadel's release from prison, he be immediately transported to a residential facility to participate in a sex-offender treatment program. Sternadel moved unsuccessfully for a new trial on the grounds, among others, that the evidence was legally and factually insufficient to support the verdict.
II. ISSUES PRESENTED
In Sternadel's first issue, he focuses on the first element to be proved under the SVP statute, arguing that the trial court erred in granting a partial directed verdict that he is a "repeat sexually violent offender." In his three remaining issues, Sternadel contests the legal and factual sufficiency of the evidence of the second element, that is whether he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
III. PARTIAL DIRECTED VERDICT THAT
STERNADEL IS A "REPEAT SEXUALLY VIOLENT OFFENDER"
In his first issue, Sternadel argues that the trial court erred in granting a partial directed verdict that he is a repeat sexually violent offender. A "repeat sexually violent offender" is defined to include a person who has been convicted of more than one "sexually violent offense" and has been sentenced for at least one such offense. Id. § 841.003(b). A "sexually violent offense" includes indecency with a child by sexual contact and aggravated sexual assault. See id. § 841.002(8)(A).
Sternadel contends that the trial court erred in granting a partial directed verdict on this element because a person subject to a civil commitment proceeding under the SVP statute is entitled to a jury trial. See id. §§ 841.061(b), 841.146(a). The SVP statute further provides that, to the extent it conflicts with rules of procedure and appeal in civil cases, the SVP statute prevails. See id. § 841.146(b).
According to Sternadel, the SVP statute's provision entitling a party to a jury trial conflicts with Texas Rule of Civil Procedure 268, which permits directed verdicts in civil cases. See TEX. R. CIV. P. 268 ("A motion for directed verdict shall state the specific grounds therefor."). Whether the provisions conflict is a question of statutory construction that we review de novo. See Colorado County v. Staff, 510 S.W.3d 435, 444 (Tex. 2017) (citing State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)).
Sternadel's argument is based on the assumption that the SVP statute's jury-trial provision precludes a directed verdict on the element of whether a person is a repeat sexually violent offender. This court has rejected that argument, as has every other appellate court to have considered the argument. See, e.g., In re Commitment of Harris, ___S.W.3d___, No. 14-16-00706-CV, 2017 WL 6003623, at *6-7 (Tex. App.—Houston [14th Dist.] Dec. 5, 2017, no pet.); In re Commitment of Perdue, 530 S.W.3d 750, 754 (Tex. App.—Fort Worth 2017, pet. denied); In re Commitment of Decker, No. 11-17-00007-CV, 2017 WL 2869847, at *3-4 (Tex. App.—Eastland June 30, 2017, no pet.) (mem. op.); In re Commitment of Talley, 522 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2017, no pet.); In re Commitment of Black, 522 S.W.3d 2, 6 (Tex. App.—San Antonio 2017, pet. denied); In re Commitment of Scott, No. 09-11-00555-CV, 2012 WL 5289333, at *2 (Tex. App.—Beaumont Oct. 25, 2012, no pet.) (mem. op.).
As we explained in Harris, "[a] partial directed verdict is a procedure for removing parts of a civil case from the jury when there are no fact issues to resolve." Harris, ___S.W.3d at___, 2017 WL 6003623, at *6 (citing Johnson v. Swain, 787 S.W.2d 36, 36 n.1 (Tex. 1989) (op. on denial of reh'g)). "[I]f there are no disputed facts regarding this element, the person's status as a repeat sexually violent offender is appropriate for partial directed verdict." Id., ___S.W.3d at___, 2017 WL 6003623, at *7.
It is undisputed that Sternadel has been convicted once for indecency with a child by sexual contact, for which he was sentenced to five years' confinement, and twice convicted of aggravated sexual assault of a child, for which he was sentenced to twenty-seven years' confinement. Sternadel testified to all of these convictions, and the documentary evidence included records of the offenses, Sternadel's pleas of guilty to the indecency charge and nolo contendere to the aggravated sexual-assault charges, and records of the sentences imposed. Each of the three crimes is a "sexually violent offense" as defined by the SVP statute. See TEX. HEALTH & SAFETY CODE ANN. § 841.002(8)(A) (defining "sexually violent offense" to include offenses under sections 21.11(a)(1) or 22.021 of the Penal Code); TEX. PENAL CODE ANN. § 21.11(a)(1) (defining the offense of indecency with a child by sexual contact); id. § 22.021(a)(1)(B) (defining the offense of aggravated sexual assault to include intentionally or knowingly performing oral sex on a child or intentionally or knowingly penetrating a child's anus).
The evidence, including Sternadel's admissions, establishes as a matter of law that Sternadel is a repeat sexually violent offender. See TEX. HEALTH & SAFETY CODE ANN. § 841.003(b). Because the uncontroverted evidence conclusively established this fact, the trial court did not err in granting a partial directed verdict on this point. We accordingly overrule Sternadel's first issue.
IV. SUFFICIENCY OF THE BEHAVIORAL-ABNORMALITY EVIDENCE
Sternadel's remaining three issues challenge the legal and factual sufficiency of the evidence to support the second element necessary to show that he is a sexually violent predator, that is, whether "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a)(2). To determine whether the evidence supports the verdict, one first must know what the evidence was required to show. We begin with the SVP statute.
Before the release of a person who is serving a sentence for a sexually violent offense and who may be a repeat sexually violent offender, the Texas Department of Criminal Justice gives a multidisciplinary team notice of the anticipated release. See id. § 841.021(a). To aid in the team's assessment, an expert must examine the person. Id. § 841.023. The expert makes "a clinical assessment based on testing for psychopathy, a clinical interview and other appropriate assessments and techniques to aid the department" in assessing "whether the person suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id.
"'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." Id. § 841.002(2). "'Predatory act' means an act directed toward individuals, including family members, for the primary purpose of victimization." Id. § 841.002(5). Offenses identified in the SVP Act as "sexually violent offenses" are, by their nature, "committed for the primary purpose of victimization." In re Commitment of White, No. 14-17-00115-CV, 2018 WL 344063, at *10 (Tex. App.—Houston [14th Dist.] Jan. 9, 2018, no pet.) (mem. op.).
If as a result of the assessment the department believes that the person suffers from such a behavioral abnormality, it notifies the attorney representing the state in the county of the person's most recent sexually violent offense conviction. TEX. HEALTH & SAFETY CODE ANN. § 841.023. The attorney files a petition alleging that the person is a sexually violent predator. Id. § 841.041. The determination that a person is a sexually violent predator must be made beyond a reasonable doubt. Id. § 841.062.
Because the State is required to prove beyond a reasonable doubt that a person is a sexually violent predator, we review an appeal from an SVP commitment using the same legal-sufficiency standard applicable to criminal cases. See Harris, ___S.W.3d at ___, 2017 WL 6003623, at *3. We review the evidence in the light most favorable to the verdict to determine whether a rational factfinder could have found, beyond a reasonable doubt, the elements required for commitment. Id. The jury is the sole judge of the witnesses' credibility and of the weight to be given to their testimony. Id.
We review the factual sufficiency of the evidence by considering all of the evidence in a neutral light and asking whether a jury was rationally justified in finding that a person is a sexually violent predator beyond a reasonable doubt. See id.
A. Likelihood of Committing an Act "For the Primary Purpose of Victimization"
In his second issue, Sternadel argues that the evidence is legally and factually insufficient to prove beyond a reasonable doubt that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence because there is no evidence that he would commit an act directed toward individuals "for the primary purpose of victimization."
That an act would be "for the primary purpose of victimization" is not a separate element that must be proved. As we stated in Commitment of Harris, "[w]hether a person suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence is a single, unified issue." Id. In Harris, the appellant argued "that a person who commits sexual violence due to a mental illness cannot have committed those acts 'for the primary purpose of victimization.'" Id., ___S.W.3d at ___, 2017 WL 6003623, at *4. We expressly rejected the premise that whether an act was performed for the primary purpose of victimization "is a separate issue from whether he suffers from a behavioral abnormality that predisposes him to commit a sexually violent offense." Id. ___S.W.3d at ___, 2017 WL 6003623, at *4.
In reaching that conclusion, we relied on In re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), in which the Texas Supreme Court reversed a decision of the Ninth Court of Appeals bisecting the definition of "behavioral abnormality" in the manner Sternadel advocates. Our sister court had held that the statutory definition of "behavior abnormality" required proof of both "an acquired or congenital condition" and "a predisposition to commit a sexually violent offense. See id. at 302. The Texas Supreme Court rejected the parsing of the statute and instead held, "The required condition is the predisposition. . . . The condition and predisposition are one and the same." Id. at 302-03. Applying the same reasoning used in Bohannan, we held in Harris that, to prove that "person is likely to engage in a predatory act of sexual violence for the primary purpose of victimization," it is sufficient if the evidence shows the "person's predisposition to commit a sexually violent offense to the extent that he becomes a menace to the health and safety of another person." Harris, ___S.W.3d at ___, 2017 WL 6003623, at *4. See also Bohannon, 388 S.W.3d at 303 (rejecting the idea "that a menacing offender may not be predatory, or vice versa, that a predator might not be a menace").
Because the State is not required to independently show that the person's predation would be "for the primary purpose of victimization" as Sternadel suggests, we overrule his second issue. The question of whether the evidence supports the finding that Sternadel has such a predisposition to commit sexually violent offenses is addressed in Sternadel's third and fourth issues, to which we now turn.
B. Adequacy of the State's Expert Testimony
In Sternadel's third and fourth issues, he contends that there is legally and factually insufficient evidence that he is a sexually violent predator. He argues that the State's expert, forensic psychologist Darrel B. Turner, Ph.D., offered only speculative and conclusory testimony that Sternadel suffers from a behavioral abnormality predisposing him to engage in predatory acts of sexual violence and that there are analytic gaps in Turner's testimony. Sternadel therefore contends that Turner's testimony constitutes no evidence.
In such a no-evidence review, we must consider the entire record. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). Thus, before returning to Sternadel's arguments, we summarize each expert's testimony.
Although Sternadel testified as well, and we have reviewed that testimony, we do not separately summarize it because his appellate challenge to the legal and factual sufficiency of the evidence concerns only expert testimony and relies only on expert testimony.
1. The State's Expert , Forensic Psychologist Darrel B. Turner , Ph.D.
Turner testified that a "risk factor" is something that makes a person more likely than the average sex offender to recidivate and that the two biggest risk factors in sexual-offense recidivism are sexual deviance and antisociality. He noted that the use of these factors is supported by research, used in federal sentencing guidelines, and "is not something that's really up for debate in the field."
a. Sexual Deviance
Turner defined "sexual deviance" as a sexual attraction that would require a person to break the law or to victimize another to satisfy it. According to Turner, sexual deviance generally does not go away.
Turner diagnosed Sternadel with pedophilia nonexclusive type (meaning that Sternadel is attracted to both children and adults) and that Sternadel is attracted to both males and females. Turner explained that an "absolute pure sign of pedophilia" is that Sternadel sexualizes children, attributing sexual behaviors, desires, and actions to them. Although Sternadel has at times admitted and at times denied that he is still sexually attracted to children, Turner pointed out that Sternadel talks about children in a sexualized manner, describing them as initiating flirtatious relationships with him by wearing skimpy clothes they want him to notice. "This is not just an opportunistic offender," Turner said. Turner explained that Sternadel's history of offending against both males and females and against both pubescent and prepubescent children further increased his risk of reoffending because "his potential victim pool is larger."
b. Antisocial Personality Disorder
According to Turner, Sternadel also suffers from antisocial personality disorder. Turner explained that those with the disorder have a sense of entitlement to get what they want, without regard to rules, and cannot empathize with other people. Such people show a lack of remorse and fail to take responsibility for their actions.
Turner testified that antisocial personality disorder is lifelong. Turner saw early evidence of conduct disorder, meaning that Sternadel acted out in an antisocial way even as a child. Turner explained that evidence that Sternadel has antisocial personality disorder also includes his criminal and substance-abuse history. Other evidence of Sternadel's antisociality included his lack of remorse, his failure to take responsibility, and his pathological lying. Turner explained that Sternadel's failure to take responsibility for his offenses is evidence of psychopathy, and that "persons with psychopathy are shown to be at significantly high risk to re-offend." Sternadel also testified on his own behalf, and jurors were able to hear his conflicting statements and judge his demeanor for themselves.
c. Additional Risk Factors
Turner further stated that Sternadel possesses other risk factors identified by research, although some of these may be subcategories of social deviance, antisociality, or both. These included Sternadel's "grooming" of victims, his history of reoffending after being punished, his pattern of romantic relationships with his accomplices, his acceptance of child sex-abuse, and his diagnosis and history of severe alcohol-use disorder.
d. Protective Factors
The only protective factor that Turner identified was Sternadel's age. Turner explained that research indicates that someone of Sternadel's age of 64 has a lower risk of reoffending than someone younger.
e. Test Results
(i) The PCL-R
As previously mentioned, the SVP statute requires that an expert aiding the multidisciplinary team in evaluating an offender for a behavioral abnormality must include testing for psychopathy. Turner administered the PCL-R, which stands for "Psychopathy Checklist-Revised." He explained at trial that psychopathy is a personality construct, rather than an official disorder. The PCL-R is a research instrument that measures the extent to which a person is a psychopath, but it has been found to be useful in predicting whether a sex offender will reoffend. Sternadel scored 25 out of a possible 40 on the test. According to Turner, a score of 25 is the threshold for a finding that someone is a psychopath.
Turner testified that a recent research study by Drs. Boccaccini and Hawes shows that the combination of psychopathy and sexual deviance exponentially increases a sexually violent offender's risk of recidivating. When antisocial personality disorder and the other risk factors Turner discussed are added to psychopathy and sexual deviance, the combination "shoots [a person's] risk of re-offending through the roof."
(ii) The Static-99R
Turner testified that the Static 99-R is an actuarial test typically utilized by psychologists in SVP behavioral-abnormality assessments. The test measures risk factors that generally do not change, but because the test does not consider risk factors such as sexual deviance, Turner stated that it cannot be the only basis for evaluating the likelihood that a person will reoffend. The test was developed using adult males with at least one contact offense. In evaluating behavioral abnormality, the test's authors indicate that the person should be compared to a "high risk normative group."
Some evaluators use the Texas Norms as the comparative group when determining a sex offender's risk of recidivism. Turner does not use that group, because the test was created around a specific normative group consisting of many thousands of sex offenders, while the "Texas Norms" used a much smaller group.
Turner found that Sternadel scored on 3 on the Static-99R, which, standing alone, would indicate that Sternadel had a "low moderate" risk of re-offending, as compared to the "average" sex offender. Turner stated that he does not believe that the score is an accurate reflection of Sternadel's risk because it does not take account of Sternadel's antisocial personality disorder and his sexual deviance.
2. Sternadel's Expert , Forensic Psychiatrist John Tennison , M.D.
The testimony of Sternadel's expert Dr. John Tennison was rooted in his interpretation of statutory terms. Tennison stated that he interprets the statutory term "predisposes" to mean "greater than 50 percent probability." As previously mentioned, the statute defines "predatory act" as "an act directed toward individuals, including family members, for the primary purpose of victimization." TEX. HEALTH & SAFETY CODE ANN. § 841.002(5). Tennison understands an act committed "for the primary purpose of victimization" to mean that there is evidence that the person knows that he is engaging in an act that would be highly disapproved of by society. To illustrate, Tennison described a predatory act of sexual violence as kidnaping a victim and taking the victim to a remote location for the purpose of sexual assault, and contrasted it with what he considers to be a non-predatory act of sexual violence, such as committing sexual assault while the actor was so intoxicated as to be unaware that a victim was being created. The distinction between the two is the person's motive, which Tennison asserted he was required to consider under the statute.
But see section IV.A., supra; see also In re Commitment of Bernard, No. 09-10-00462-CV, 2012 WL 2150328, at *2 (Tex. App.—Beaumont June 14, 2012, pet. denied) ("Whether someone is a victim is not determined from the subjective point of view of the victimizer.").
Given Tennison's interpretation of the SVP statute, he stated that the most important factors to address are, "Does someone have a congenital or acquired condition? Does that lead to serious difficulty controlling behavior? Does that lead to acts committed for the primary purpose of victimization which are sexually violent?"
Regarding the first question, Tennison testified that acts committed while intoxicated do not indicate a congenital or acquired condition because intoxication is temporary.
Both experts, however, diagnosed Sternadel with the acquired condition of alcohol-use disorder. Neither testified that this condition is temporary.
In connection with the second question, Tennison stated that "simply having a lot of convictions," without more, does not reveal whether the person has a behavioral abnormality because the convictions may have been the result of "very willful acts" rather than "difficulty controlling behavior from a behavioral abnormality." Tennison was critical of studies concerning risk factors, because they "have not looked at the question of whether these factors had anything to do with serious difficulty controlling behavior from a congenital or acquired condition, but rather they were looking at sexual recidivism in general, regardless of whether that recidivism was caused by a behavioral abnormality or not."
As for whether a person is predisposed to commit a sexually violent offense "for the primary purpose of victimization," Tennison agreed that he would not consider a person to be a sexually violent predator if the person "was callous and didn't care about the victims and didn't care what he was doing, but just getting his own sexual gratification." According to Tennison, a person who is oblivious to the suffering of others cannot be acting "for the primary purpose of victimization."
But see White, 2018 WL 344063, at *10; Bernard, 2012 WL 2150328, at *2.
In light of the definitions that Tennison used, he expressed doubt that the offenses for which Sternadel was convicted constituted predatory acts because he considered it likely that Sternadel was intoxicated when each act was committed.
a. Sexual Deviance
According to Tennison, current sexual deviance is a risk factor, which is determined by "ongoing and present evidence of someone's desire to commit nonconsenting acts with children or adults or sexual acts with children." Tennison testified that he saw no evidence of ongoing deviance. He stated that pedophilic disorder was not "a reliable diagnosis" for Sternadel "because the offenses for which he's been convicted can be explained in terms of sort of an opportunistic exploitation of children and not necessarily from a baseline mindset of being attracted to the prepubescent form or being attracted to a child because of their prepubescent identity." Tennison stated, however, "I can't rule out the possibility of pedophilic disorder."
b. Antisocial Traits
Tennison stated that Sternadel has "antisocial traits," but that this is not a diagnosis. He stated that "pretty much everyone who is evaluated in this context" has a history of antisocial traits, so "it doesn't shed light on the question or definition of behavioral abnormality." He stated that Sternadel's antisocial traits do not affect the assessment of a behavioral abnormality because it sheds no light on the question of whether Sternadel has "volitional capacity."
c. Protective Factors
Like Turner, Tennison found Sternadel's age to be a protective factor. In addition, Tennison pointed out that Sternadel has had two heart attacks, and he considered this medical history to be a protective factor as well. According to Tennison, an additional protective factor is that Sternadel has been able to sustain a romantic relationship for at least two years.
d. Test Results
(i) The PCL-R
Tennison testified that he did not perform or rely on the PCL-R test for psychopathy because it does not measure a person's difficulty in controlling the person's behavior. He acknowledged, however, that evaluators traditionally use this test for psychopathy "out of convention and because the law itself describes a requirement for testing for psychopathy." Tennison reviewed the test that Turner performed and agreed with Turner's scoring of the test. He disagreed, however, with Turner's statement that a score of 25 represented psychopathy. Turner stated that the threshold for psychopathy is 30, and a score of 25 represented no psychopathy or low psychopathy.
When asked if he agreed with Turner's conclusion "that a score of 25 represents high psychopathy," Tennison stated that a score of 30 is required for a finding of psychopathy, and that only a minority of clinicians would declare a person a psychopath based on a score in the 20's. He stated, "it would be low psychopathy if you'd even call it psychopathy at all." Turner, however, had not testified that 25 represented "high psychopathy." To the contrary, he testified that if Sternadel's score had been one point lower, Turner would not have found Sternadel to be a psychopath.
(ii) The Static-99R
Tennison also performed the Static-99R test on Sternadel, and although he used the Texas Norms, he arrived at the same score that Turner did. According to Tennison, the Static-99R does not test for behavioral abnormality, but only for general sexual recidivism. He stated that even if the Static-99R indicated that someone was likely to recidivate, the recidivism might not be due to a behavioral abnormality.
Based on all of the above, Tennison opined that "Sternadel does not have the behavioral abnormality as defined in the Texas statute" and was highly unlikely to reoffend.
3. Sternadel's Legal and Factual Insufficiency Arguments
Having raised no objection to Turner's testimony at trial, Sternadel argues on appeal that, on its face, Turner's testimony is speculative, conclusory, and suffers from analytic gaps.
According to Sternadel, Turner's testimony is conclusory and speculative because Turner "based much of his opinion on factors that he himself acknowledged should not be given significance"; however, Sternadel offers no examples or explanation of this statement. Our review of the record shows that Turner's opinion was largely based on Sternadel's sexual deviance and antisociality, which Turner testified were the two biggest risk factors for SVP recidivism.
Regarding sexual deviance, Sternadel notes that Turner diagnosed Sternadel with pedophilia, whereas Tennison "did not see evidence of ongoing deviance." But when the evidence conflicts, it is the jury that decides which evidence to credit. Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 833 (Tex. 2014). The jury heard Sternadel's contradictory testimony that he was never sexually attracted to children and that his attraction to children is less strong than it was when he was offending. Nevertheless, Sternadel admitted having told Turner that he was still attracted to children; that the children in his neighborhood were "hot"; and that seeing kids run up and down the street was his "child porn." He admitted that he testified in his deposition that there was "a good possibility" that he would re-offend. Even Sternadel's own expert stated, "With regard to pedophilic disorder, I do have some concern. You know, I can't rule out the possibility of pedophilic disorder . . . ." Given the conflicting testimony, a rational jury could believe Turner's testimony that Sternadel has, and continues to have, pedophilic disorder.
Regarding antisociality, Sternadel first points to Tennison's testimony that antisociality has only a "very small association" with recidivism, and is "probably taken into account by the risks that's been calculated by the Static-99R." Here, too, the evidence conflicts. Turner testified that antisociality and sexual deviance "are supported as primary risk factors for sexual re-offending across research," and that the federal government sentencing guidelines consider those two qualities to be "the biggest risk factors." He further stated that those trained in conducting risk assessments are trained to look at these factors. A rational jury could credit Turner's testimony over Tennison's, and we presume it did so.
Sternadel next points out that Turner found Sternadel to have antisocial personality disorder, whereas Tennison stated, "I don't see pervasive or inflexible antisocial traits in Mr. Sternadel." This is yet another conflict in the evidence that the jury was entitled to resolve. Turner explained that in arriving at this diagnosis, he considered Sternadel's "conduct disorder as a child, substance abuse history, his legal history and criminal history, his willingness to manipulate others, his willingness to victimize others[,] often violently[,] even adults, and a history of breaking the rules, a lack of remorse, [and] a lack of empathy." Tennison agreed that "it's possible that [Sternadel] could meet that diagnosis."
Sternadel's remaining arguments focus on the PCL-R. He criticizes Turner's reliance on this test and cites Tennison's testimony that there is "an extremely weak connection between those who score high on this PCL-R and those who don't [sic] exhibit acts of sexual recidivism." Tennison admitted, however, that the SVP statute requires the State to obtain an expert's "clinical assessment based on testing for psychopathy," among other things. See TEX. HEALTH & SAFETY CODE ANN. § 841.023(a). Tennison further conceded that "evaluators have traditionally tested for [psychopathy] using this particular test." Moreover, Turner testified that a research study by Drs. Boccaccini and Hawes have found the presence of psychopathy and sexual deviance to be "very powerful evidence of a high risk of re-offending." Here, too, the jury rationally could have credited Turner's testimony over Tennison's.
Sternadel also contends that Turner incorrectly used a score of 25 as the threshold for psychopathy, whereas Tennison testified that the correct threshold is 30. But, Tennison testified that "a minority of clinicians would declare someone with a score in the 20s" to be a psychopath. Thus, some experts agree with Tennison and some with Turner. Given the conflicting evidence, the jury was entitled to credit Turner's testimony over Tennison's.
Sternadel characterizes Turner's testimony as incoherent because Turner said of the PCL-R, "the instrument is good at predicting whether or not someone will re-offend. So, it's not a risk assessment measure. It's a measure of to what degree a person is a psychopath." Sternadel asserts that "Turner did not clarify how something that he admits is not a risk assessment measure could 'predict whether or not someone will re-offend.'" We disagree. The testimony that Sternadel cites is taken from the middle of Turner's explanation contrasting the test's intended purpose with its practical application. Turner explained that psychopathy is neither a legal term nor a diagnosis, but a term used in research. The test developer had noticed a pattern of psychopathological personality constructs among prison inmates, and to aid in research, the test developer had created the PCL-R to measure the extent to which a person possesses such psychopathic characteristics. Although the test was designed for research rather than as a risk-assessment measure for sexual-offense recidivism, it was found that, in practice, there is a correlation between PCL-R scores above a certain threshold and rates of sexual-offense recidivism.
In sum, Sternadel's arguments for legal and factual sufficiency require us to accept those parts of his own and Tennison's testimony that are favorable to Sternadel and to reject Turner's testimony and the parts of Sternadel's and Tennison's testimony that are unfavorable. But, whether viewed in the light most favorable to the verdict or in a neutral light, a rational jury could have found the unfavorable testimony more credible than the contrary testimony on which Sternadel relies. Because we must defer to the jury's rational credibility determinations, we overrule Sternadel's third and fourth issues.
V. CONCLUSION
Given the undisputed facts that Sternadel previously had been sentenced to a total of thirty-two years' confinement for three sexually violent offenses, the trial court did not err in granting a partial directed verdict on the element of whether Sternadel is a repeat sexual violent offender. We further conclude that the evidence is legally and factually sufficient to support the jury's verdict that Sternadel is a sexually violent predator. Thus, we affirm the trial court's judgment.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Donovan, and Jewell.