Opinion
03-23-00128-CV
08-30-2023
In re Commitment of Rex Scott Martin
FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY NO. D210391C, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Kelly and Theofanis
MEMORANDUM OPINION
Rosa Lopez Theofanis, Justice
This is an appeal from a final judgment following a jury trial on the State's petition to classify Rex Scott Martin as a sexually violent predator subject to involuntary civil commitment under Chapter 841 of the Health and Safety Code. See generally Tex. Health & Safety Code §§ 841.001-.153 (the Act). A jury unanimously found that Martin is a sexually violent predator, and the district court rendered judgment on the verdict and entered an order of civil commitment. Martin argues in three issues that the district court erred by refusing his requested jury instruction and admitting certain evidence and testimony from the State. We affirm.
BACKGROUND
Martin was convicted of indecency with a child by contact in 1994 and again in May of 2014. See Tex. Penal Code § 21.11(a)(1). While incarcerated for the second offense, Martin entered a sex offender treatment program run by the Texas Department of Criminal Justice. As Martin's July 2022 release date approached, the State petitioned to civilly commit Martin as a sexually violent predator under the Act. See Tex. Health & Safety Code § 841.003 (defining sexually violent predator).
The parties tried the case to a jury. The State called Martin and Dr. Jason Dunham, a psychologist who evaluated Martin. The district court admitted exhibits offered by the State, including Dr. Dunham's curriculum vitae and evidence of Martin's previous convictions for the two sexual offenses, forgery, and possession of a controlled substance. The jury unanimously found that Martin is a sexually violent predator, and the district court rendered judgment on the verdict and an order of commitment. This appeal ensued.
STATUTORY FRAMEWORK
The Act provides for the involuntary "long-term supervision and treatment of sexually violent predators." Id. § 841.001. Proving that a person is a sexually violent predator requires proof of two elements: the person is a "repeat sexually violent offender" who "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a). "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).
The State has the burden to prove both elements beyond a reasonable doubt. See id. § 841.062; In re Commitment of Stoddard, 619 S.W.3d 665, 670 (Tex. 2020). Upon a finding that a person is a sexually violent predator, the "judge shall commit the person for treatment and supervision . . . ." Tex. Health & Safety Code § 841.081(a).
ANALYSIS
Martin seeks reversal on three grounds. First, he argues that the district court erred by failing to instruct the jury that he is presumed not to be a sexually violent predator. Next, he argues that the district court abused its discretion by allowing Dr. Dunham to testify that Martin needs additional sex offender treatment and by admitting evidence of Martin's non-sexual offenses.
Jury Charge
Martin argues in his first issue that the district court erred by rejecting his request to instruct the jury that he is presumed not to be a sexually violent predator. The State responds that Martin waived this issue by failing to object to the omission of the instruction and obtain a ruling.
We agree with the State. "To preserve error in the omission of a party's own question, the party must have objected to the omission, tendered the question in substantially correct form, and obtained a ruling from the trial court." Fort Worth Indep. Sch. Dist. v. Palazzolo, 498 S.W.3d 674, 679 (Tex. App.-Fort Worth 2016, pet. denied) (citing Tex.R.Civ.P. 274, 276, 278). Martin filed a proposed jury charge that included his requested instruction but there is no record that he ever objected to the omission of the instruction or obtained a ruling. Following an off-the-record charge conference, his counsel stated that he had "no objection" to the charge. We conclude that Martin waived this issue by failing to object and obtain a ruling. See Burbage v. Burbage, 447 S.W.3d 249, 255 (Tex. 2014) ("[A]ny complaint to a jury charge is waived unless specifically included in an objection." (citing In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003))); Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 27 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (concluding appellant waived error because trial court did not rule on requested instruction).
Expert Testimony
Martin argues in his second issue that the district court abused its discretion by overruling his objection to Dr. Dunham's testimony. The State asked Dr. Dunham whether, based on his training and experience, "Mr. Martin needs more sex offender treatment?" Dr. Dunham replied: "I believe he needs more treatment in order to reduce his risk, yes." Martin argues that this testimony was conclusory and speculative because Dr. Dunham does not provide sex offender treatment.
We review a trial court's decision on the admissibility of evidence for an abuse of discretion. Hlavinka v. HSC Pipeline P'ship, LLC, 650 S.W.3d 483, 496 (Tex. 2022). A trial court abuses its discretion when it acts arbitrarily, unreasonably, without regard for guiding rules or principles, or without supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).
A witness who is qualified "by knowledge, skill, experience, training, or education" to "assist the trier of fact to understand the evidence or to determine a fact in issue" may testify as an expert. Tex. R. Evid. 702. But "it is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness." Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). An expert must "explain the basis of his statements to link his conclusions to the facts." Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). An expert's testimony is conclusory if "no basis for the opinion is offered" or the "basis offered provides no support." City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Testimony is "speculative if it is based on guesswork or conjecture." Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012) (citing Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008)).
The State argues that Martin failed to preserve his argument that the testimony is conclusory because he only objected that it was speculative. We disagree because the substance of his objection was that Dr. Dunham's testimony is both conclusory and speculative. See Li v. Pemberton Park Cmty. Ass'n, 631 S.W.3d 701, 704 (Tex. 2021) (explaining that "a party sufficiently preserves an issue for review by arguing the issue's substance, even if the party does not call the issue by name" (citing St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020)).
In opining that Martin requires additional sex offender treatment, Dr. Dunham was essentially restating his conclusion that Martin has a behavioral abnormality within the meaning of the Act. See Tex. Health & Safety Code §§ 841.002(2) (defining behavioral abnormality as condition that "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"), .081(a) (requiring jury to commit person found to be sexually violent predator "for treatment and supervision"). To evaluate the basis for Dr. Dunham's opinion, we first review the evidence of his background, credentials, and methodology and then describe the evidence supporting his conclusion.
Dr. Dunham testified that he has a bachelor's degree in psychology, a master's degree in clinical psychology, and a Ph.D in counseling psychology. He completed a one-year internship in Forensic Psychology and a one-year post-doctoral fellowship in adult criminal psychology. Dr. Dunham's curriculum vitae, which recounts his training, his publications, and his years of research and teaching experience, was admitted into evidence.
Dr. Dunham explained to the jury the steps he took to arrive at his assessment of Martin. He began with the evaluation of Martin that had been performed by Dr. Daryl Turner, who works for the prison system. First, Dr. Dunham reviewed all the records Dr. Turner relied on and then the assessment itself. The records consisted of thousands of pages of records from the time Martin was twelve years old to those generated "very recently" and included offense reports, court judgments, prison records, medical records, the video statement of the child in the most recent case, and the transcript of Martin's deposition. Dr. Dunham testified that these records are the same types of records relied upon by experts in the field to make these types of assessments. Dr. Dunham also interviewed Martin for approximately two hours. He told the jury that two hours is an adequate amount of time to conduct the interview and is a normal amount of time for these evaluations. Dr. Dunham testified that based on the interview and records, coupled with his education, training, and experience, Martin has a behavioral abnormality.
Dr. Dunham arrived at this opinion by looking for certain "risk factors" and "protective factors" exhibited by Martin. Risk factors are variables that, based on empirical data, increase the likelihood of reoffending while protective factors reduce the risk. Dr. Dunham explained that his opinion is based primarily on Martin's sexual deviancy and antisocial orientation.
Regarding the antisocial factor, Dr. Dunham diagnosed Martin with antisocial personality disorder (APD) with an "extreme" amount of psychopathy. Dr. Turner made the APD diagnosis by applying criteria from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which he told the jury is a manual relied on by psychologists and psychiatrists to make diagnoses. He defined APD as a "lifelong pattern of rule breaking behavior, of violating norms of society, of lack of concern for others." And he explained that a psychopath with APD "just completely lack[s] concern for other people."
Dr. Dunham based this diagnosis on Martin's criminal offenses, including the sex offenses, two convictions for forgery, and for possession of a controlled substance; and his inability to comply with the terms of supervision or parole. For example, Martin was originally placed on deferred adjudication community supervision for the first sexual offense, meaning that he would not have a criminal record if he completed the five-year term successfully. Martin's supervision was revoked and he was incarcerated for seven years. He was later released on mandatory supervision four times but was returned to prison each time.
Dr. Dunham also identified other facts that supported this diagnosis. Martin's description of the second offense varied significantly. The offense occurred while Martin and the six-year-old victim waited in a car while the child's parents went into Wal-Mart. Even though Martin admitted to the offense during a sex-offender treatment program in prison, he denied it during his interview with Dr. Dunham. He told Dr. Dunham during the interview that he had never touched the child and had lied when he admitted to the offense because the treatment program requires participants to admit responsibility.
Dr. Dunham opined that Martin had successfully manipulated the treatment program by telling the providers "what they wanted to hear." He based this opinion off the interview and a series of letters that Martin sent to a pen pal named Curtis. In the letters, Martin initially denies committing the sexual offenses but later says that his therapist had told him he needed to admit to an offense. Martin admitted to the offense in a subsequent letter and, at one point, acknowledged that his mail was being read. Dr. Dunham said that "it was almost like he was writing to Curtis knowing that prosecutors were reading his mail" and was "actually writing the prosecutors through Curtis." Dr. Dunham stated that it "didn't seem like he ever had any interest in progressing in treatment and doing well in treatment. It was a grand goal to be out on parole."
In addition to this, Dr. Dunham opined that Martin is sexually deviant, which he defined as "abnormal sexual behavior that causes some kind of problem, some kind of distress, either within that person or to somebody else." Dr. Dunham diagnosed Martin with pedophilic disorder, specifically a non-exclusive sexual attraction to prepubescent girls. He explained that the interactions between the two diagnoses makes Martin highly likely to reoffend because most people with pedophilic disorders are not psychopathic.
In sum, Dr. Dunham explained the accepted methodology that he employed to reach his opinion and offered a basis for it: he described his review of the records and interview with Martin and explained why this information supported his ultimate opinion that Martin had a behavioral abnormality that required additional sex offender treatment to "reduce his risk" of reoffending. Based on the record before us, we conclude that Dr. Dunham's testimony is neither conclusory nor speculative and, therefore, that the district court did not abuse its discretion when it overruled Martin's objection to Dr. Dunham's testimony. See In re Commitment of Delarosa, No. 03-21-00541-CV, 2022 WL 3403347, at *7-8 (Tex. App.-Austin Aug. 17, 2022, no pet.) (mem. op.) (concluding similar expert testimony was neither conclusory nor speculative). We overrule Martin's second issue.
Admission of Exhibits 3, 5, and 6
Martin argues in his final issue that the district court erred by admitting the State's Exhibits 3 (the penitentiary packet pertaining to his felony conviction for forgery), 6 (the indictment pertaining to the same offense), and 5 (a waiver and stipulation Martin signed in a sexual assault case). Specifically, he contends that these items are inadmissible under Rules of Evidence 403 and 609. See Tex. R. Evid. 403 (permitting exclusion of relevant evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence"); 609(a) (addressing use of prior convictions for impeachment purposes). The State responds that Martin failed to preserve this objection and, in the alternative, that any error was harmless.
To preserve error in the admission of evidence, the "complaining party must timely and specifically object to the evidence and obtain a ruling." Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (citing Tex.R.App.P. 33.1(a)). The objection "made in the trial court must comport with the argument made on appeal." Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 520 S.W.3d 145, 159 (Tex. App.- Austin 2017, pet. denied) (en banc). Martin made no objection to State's Exhibit 5 and objected to Exhibits 3 and 6 as "highly prejudicial." This objection would not have informed the district court that Martin's objection was based on Rule 609, which does not involve prejudice. See generally Tex. R. Evid. 609. And his objection that Exhibits 3 and 6 are "highly prejudicial" is not, without more, specific enough to preserve a Rule 403 complaint. See JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018) ("Testimony is not inadmissible [under Rule 403] on the sole ground that it is 'prejudicial' because in our adversarial system, much of a proponent's evidence is legitimately intended to wound the opponent."); Diamond Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018) (explaining that "unfair prejudice is the proper inquiry" under Rule 403); see also Lewis v. State, No. 02-16-00179-CR, 2017 WL 2686325, at *9 (Tex. App.-Fort Worth June 22, 2017, pet. ref'd) (mem. op., not designated for publication) (concluding similar objection in criminal case did not preserve Rule 403 complaint because "virtually all evidence proffered by a party to a lawsuit will be prejudicial to the opposing party"). Martin has waived any error regarding these issues. See Tex. R. App. P. 33.1(a); Bay Area Healthcare Grp., 239 S.W.3d at 235.
Even if we were to presume Martin preserved his Rule 403 complaint regarding exhibits 3 and 6, any error would be harmless. "Objections to the admission of evidence 'will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.'" In re Commitment of Basquez, 669 S.W.3d 823, 828 (Tex. App.-Dallas 2023, no pet. h.) (citation omitted). Before offering these items, the State questioned Martin about the forgery conviction and the circumstances surrounding it. Martin answered all the State's questions without objection. Dr. Dunham later discussed the same evidence in his testimony, again without objection from Martin. Because Martin did not object when the district court allowed the same evidence, any error in the admission of State's Exhibits 3 and 6 is harmless. See id.
We overrule Martin's third issue.
CONCLUSION
We affirm the district court's judgment.
Affirmed.