Opinion
NO. 09-11-00021-CV
02-16-2012
IN RE COMMITMENT OF JAMES DANIEL RAIFORD
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-04-03468-CV
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit James Daniel Raiford as a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011). A jury found Raiford suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003. The trial judge signed a final judgment and an order of civil commitment under the Act. We affirm the judgment of the trial court.
SUFFICIENCY OF THE EVIDENCE
In issues one and two, Raiford argues the evidence is legally and factually insufficient to support the jury's finding that Raiford suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Because the SVP statute employs a beyond-a-reasonable-doubt burden of proof, when reviewing the legal sufficiency of the evidence, we must assess all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could find, beyond a reasonable doubt, the elements required for commitment under the statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). 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. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied).
The SVP statute defines "sexually violent predator" as 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." Tex. Health & Safety Code Ann. § 841.003(a). The statute defines "behavioral abnormality" as "a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person." Id. § 841.002(2). The statute defines "predatory act" as "an act directed toward individuals, including family members, for the primary purpose of victimization." Id. § 841.002(5).
At trial, the jury heard testimony from several witnesses. The State presented testimony from Dr. Timothy Proctor, a board certified forensic psychologist, and Dr. Michael Arambula, a board certified forensic psychiatrist. The State also called Raiford as a witness. Dr. Walter Quijano, a clinical psychologist, testified for respondent. Raiford was the first witness called by the State at trial.
Raiford testified that he was currently in phase three of the sex offender treatment program, which he had nearly completed. Raiford testified regarding his three sexual offense convictions. The evidence established that Raiford pled guilty after exposing himself to an eleven year old girl in 1980. Raiford was fourteen or fifteen years old at the time of his first offense. Raiford was placed on juvenile probation. In 1982, Raiford pled guilty to a second offense for exposing himself to a twelve year old girl. Raiford's second offense was a violation of his juvenile probation and for that, he was sent to live in a youth home and eventually, he joined the army. After being honorably discharged from the army, Raiford committed his third offense in 1990. Raiford committed his third offense against two girls, both around ten years old. Raiford pled guilty to indecency with a child, aggravated sexual assault of a child, and two counts of aggravated kidnapping with intent to commit sexual assault. Raiford received a twenty-two year prison sentence for his third offense.
Raiford told the jury he believed he was attracted to young girls because he was afraid of women his own age. Raiford explained that at the time of the offenses he had a weight problem and had been rejected by females his own age. According to Raiford, the young girls were a last resort because they were the only females he was not afraid of. After being discharged from the army, Raiford went to live with his mother. Raiford told the jury that his fantasies involving young girls continued after he was discharged from the army. Raiford testified that his mother was a verbally abusive alcoholic with a "mean streak." Raiford stated that he committed the 1990 offense the day after he had a fight with his mother, during which he pushed and injured his mother. Raiford told the jury this incident devastated him, and left him with thoughts of suicide and worried he would end up homeless. On cross-examination, Raiford admitted that at that time of the 1990 offense he "hated [his mother]" and "hated the world." Raiford explained that he committed the offense while walking home from the pharmacy after having a prescription filled for his mother. Raiford told the jury that the 1990 offense was his greatest regret. Raiford testified that he pled guilty to the offenses, and his fantasies involving children continued for a while after he went to prison. However, Raiford stated that he lost weight in prison and came to realize that adult women may be attracted to him. Raiford acknowledged that young girls are a risk factor for him, but stated that he no longer fantasizes about them. Following Raiford's testimony, the State presented testimony from its expert witnesses.
Dr. Proctor, a licensed psychologist and sex offender treatment provider, testified that he relied on his training and the principles of forensic psychology in performing his evaluation of Raiford in this case. Proctor explained the process he goes through in determining whether an individual has a behavioral abnormality. Proctor reviewed Raiford's records, met with Raiford for about two hours, and performed actuarial tests. Proctor testified that in his opinion Raiford has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
Proctor testified regarding Raiford's sexual convictions. Proctor further testified that Raiford indicated he had trouble forming relationships with his peers and had been exposed to pornographic literature that gave him the idea that if a child saw him masturbating, the child would become interested in him and want to have a sexual relationship with him. Raiford tried to initiate contact with children through this behavior, leading to his 1980 and 1982 offenses. Proctor stated that it was a concern that Raiford was acting out sexually at such a young age. Proctor felt it was noteworthy that during his interview with Proctor, Raiford stated that the conduct did not live up to his fantasy in part because the young girls did not find it exciting, and further, that the physical appearance of the unclothed child did not live up to his expectations. However, Raiford acknowledged that he continued to fantasize about children until the year 2000.
Proctor explained the actuarial tests he performed as part of his evaluation. Proctor testified that Raiford scored a 7 on the Static-99R and a 10 on the Minnesota Sex Offender Screening Tool ("MnSOST"). Proctor explained that Raiford's scores on the Static-99R and MnSOST both put him in a "high risk" category for re-offense. Proctor used the DSM-IV, Diagnostic and Statistical Manual, to diagnose Raiford with (a) pedophilia, sexually attracted to females, nonexclusive type; (b) exhibitionism; (c) paraphilia not otherwise specified; and, (d) personality disorder with antisocial, paranoid, and schizoid traits. Proctor explained each of these diagnoses and the basis of each diagnosis to the jury. Proctor explained that Raiford had a history of exhibitionism not only in the free world, but also in prison. Raiford was written up for sexual misconduct multiple times while in prison for exposing himself or masturbating in front of female guards. According to Proctor, Raiford stated that he had exposed himself to guards in prison roughly thirty times. Proctor explained that Raiford told him he believed that this would somehow lead to a relationship with female guards. Proctor stated during cross-examination that Raiford has never had a consensual sexual relationship with an adult woman.
Proctor discussed both the positive and negative factors he considered in forming his opinion in this case. Proctor testified that Raiford's age, lack of drug or alcohol issues, near completion of the sex offender treatment program, educational achievements and the fact that he is not a psychopath are all positive factors. However, Proctor discussed some areas of concern with regard to Raiford's progress in treatment and explained that Raiford had regressed in recent months. Proctor stated that Raiford has a history of coping with anger by sexually acting out. This was evidenced not only by the 1990 offense, following a fight with his mother, but also his actions while in prison. Proctor discussed a recent incident in which Raiford got angry, exposed himself, and masturbated in front of a female guard. Proctor further testified that Raiford acknowledged having rape fantasies that Raiford claims stopped when his anger towards his sex offender treatment provider dissipated. Proctor testified that he observed and considered the following additional negative factors in Raiford's case: sexual deviance and sexual convictions, sexually acting out in prison, the fact that all of his victims were unrelated and strange to him, a history of committing sexual offenses in a public place, use of force in the 1990 offense, multiple acts on a single victim, juvenile antisocial history, evidence of poor institutional adjustment, and limited social support in the free world. Proctor testified that although Raiford's last offense in the free world was twenty years ago, Proctor does not see a significant change "in terms of his potential for acting out[.]"
The jury also heard testimony from Dr. Arambula. Like Proctor, Arambula reviewed Raiford's records and met with Raiford. Arambula stated that he reviewed records typically relied upon by experts in his field and conducted his interview in accordance with accepted standards in the field of psychiatry. Arambula explained the process he goes through in determining whether an individual has a behavioral abnormality. Arambula stated that he determines the mental condition of the individual and how that may make them sexually dangerous, evaluates the risk factors that contribute to sexual dangerousness and whether the individual is sexually dangerous at the time of his evaluation, considers whether the condition has been minimized or controlled by treatment, and takes into consideration risk factors to determine whether there is a significant risk of recidivism of a sexual offense. Arambula testified, using the definition of behavioral abnormality as set out in the Texas Health and Safety Code, Raiford has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
Arambula explained that Raiford's "difficulty in dealing with anger in the past was fused with his sexual acting out . . . [and] [s]ince then that coupling of anger and sexual acting out has continued even up to this year[.]" Arambula explained that in this regard, Raiford's behavioral abnormality affects his emotional capacity and decision-making ability. Arambula testified that he was initially pleased with Raiford's progress in sex offender treatment but, following his interview with Raiford, he learned facts that indicated that Raiford had regressed in treatment. Arambula explained the basis of his opinion to the jury and concluded that Raiford needs further treatment.
Using the DSM-IV, Arambula diagnosed Raiford with pedophilia, exhibitionism, and personality disorder not otherwise specified with avoidant features. Arambula explained the bases of these diagnoses to the jury. Like Proctor, Arambula testified that Raiford told him that he exposed himself to young girls in hopes that they would see him and want to start a relationship with him and that he continued this behavior in an effort to establish relationships in prison. Like Proctor, Arambula also discussed both positive and negative factors he considered in performing his evaluation. Arambula testified that he considered the following positive factors: Raiford's intelligence and the education he received in prison, Raiford's job history and four years of service in the army, the fact that Raiford was caught at an early age and admitted he needed help. Arambula testified that the following factors increase Raiford's risk to reoffend: he has two paraphilia diagnoses, he has personality disorder, he has been in treatment twice--once as a juvenile that "obviously didn't work," he has recently regressed in treatment, he has no contact with his siblings and has no support system, and he has trouble with authority. Arambula explained that these factors have been established through research to be associated with an increased risk of recidivism. Arambula characterized Raiford's sexual offenses as predatory acts. Arambula testified that he believes there is a significant risk that Raiford will commit a predatory act of sexual violence in the future.
After the State rested its case, Raiford presented expert witness testimony from Dr. Walter Quijano. Dr. Quijano explained the process he goes through in performing his evaluation and making a behavioral abnormality determination. Quijano told the jury that he builds off the work performed by the State's experts. Quijano testified that he performed his evaluation within the scope of psychology, utilizing principles of psychology relied upon by experts in the field. Like Proctor and Arambula, Quijano interviewed Raiford for two and a half hours. Quijano explained that he performs such interviews with the assumption that the respondent has a behavioral abnormality and then asks questions to prove or disprove that assumption. Quijano testified that Raiford is "very bright," does not have any major emotional problems, and "he knows what he did, he accepted what he did, and then he somehow appreciates how he got there[.]" Quijano stated that Raiford's stories regarding his sexual offenses were consistent with the records. Quijano explained that Raiford was rejected in school and at home and was exposed to pornography at an early age. Quijano stated that these negative experiences caused Raiford to develop "distortions," causing him to turn to child victims to avoid further rejection by adults.
Quijano testified that after discussing the 1990 offense with Raiford, he "began to doubt whether [Raiford] was a pedophile[.]" Quijano found it significant that Raiford was disappointed by the appearance of the unclothed child and not aroused by it. Quijano stated that Raiford told him the offense did not live up to "the reality that he had imagined." "In his imagination, his fantasy world, he was very attracted to this age group; but when he encountered them in real life he lost interest." Dr. Quijano testified that "the behavioral abnormality that existed there has been overcome--or suppressed . . . because the underlying predisposing factors have been addressed." Quijano told the jury that Raiford has the ability to make a decision to offend or not offend. In his opinion, Raiford's behavioral abnormality is "in remission" and his decision-making ability is "intact." Quijano stated that Raiford's emotional or volitional capacity is not affected by the behavioral abnormality. Quijano diagnosed Raiford with pedophilia in remission and exhibitionism. However, Quijano stated that Raiford's exhibitionism is an improvement because Raiford's sexual interest has shifted from children to adults.
Dr. Quijano acknowledged that Raiford experienced a "slip" in sex offender treatment, but stated "overall he's doing well." Quijano further stated that Raiford has some personality disorder, in that he is a "very shy and nervous person," but stated that his personality disorder does not affect his ability to decide whether or not to offend. Quijano discussed the positive factors he observed in Raiford, specifically, that his 1990 offense did not live up to his fantasy, that he received an education in prison, that he learned trades in prison, that he is older, that he received sex offender treatment in prison, and that he gained self confidence in prison. Quijano also attributed Raiford's sexual misconducts in prison, at least in part, to prison culture and rules against talking to guards and his attempts to establish relationships. Quijano noted that in the thirty times Raiford exposed himself in prison he was only written up eight times. Quijano stated that Raiford was now practicing his attraction to adult women and in "most of the instances" the guards he victimized were receptive.
In issue one, Raiford challenges the legal sufficiency of the State's evidence. Raiford argues that there was no written report filed by the State's experts and there was no reference to any particular methodology or technique which they employed in making their determinations. Raiford contends that he is not attacking the underlying methodology, rather "the record fails to disclose any methodology." Raiford asserts the testimony of Drs. Proctor and Arambula offered nothing more than unsupported subjective opinions and credentials.
The Sexually Violent Predator Act does not require the experts who evaluate the respondent to prepare a written report. See generally Tex. Health & Safety Code Ann. §§ 841.001-.151; see also In re Commitment of Hatchell, 343 S.W.3d 560, 563 (Tex. App.— Beaumont 2011, no pet.). Both Drs. Proctor and Arambula testified that in performing their evaluations they relied on the training they received and accepted standards and principles employed in their respective fields. Both experts explained the process they go through in performing evaluations in SVP cases. Both experts stated that they reviewed relevant records and interviewed Raiford. Proctor testified that he performed actuarials in evaluating Raiford and explained his use of these instruments and constructs to the jury. He also explained that in addition to reviewing records, meeting with Raiford, and performing actuarial tests, he considered both "risk factors" and "protective factors" in making his determination. Both experts diagnosed Raiford using the DSM-IV. Both experts explained their diagnoses, and the basis of their diagnoses, to the jury. Both experts explained in detail what facts and evidence they relied upon in forming their opinions and how those facts influenced their opinions. Both experts opined that Raiford suffers from a behavioral abnormality under the SVP statute.
Raiford argues that the expert opinions in this case amount to nothing more than unsupported speculation. We disagree. Both experts presented evidence-based support for their opinions. See generally Day, 342 S.W.3d at 204, 206. The testimony of both experts presents "a reasoned judgment based upon established research and techniques for his profession and not the mere ipse dixit of a credentialed witness." Id. Raiford has failed to demonstrate the expert testimony presented by the State is not probative on its face. Compare Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (stating that opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact more or less probable).
In a civil commitment case under the SVP statute, the evidence is legally sufficient if a rational jury could have found beyond a reasonable doubt that the respondent suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Mullens, 92 S.W.3d at 887. "The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony." Id. "The jury may resolve conflicts and contradictions in the evidence by believing all, part, or none of the witnesses' testimony." Id. Further, the jury may draw reasonable inferences from basic facts to ultimate facts. Id. It was within the province of the jury to believe the State's experts who testified that Raiford currently suffers from a behavioral abnormality, or to believe Quijano who testified that Raiford's behavioral abnormality was in remission. We hold the evidence is legally sufficient to support the jury's verdict.
Raiford also argues the evidence is factually insufficient to support the jury's verdict. Specifically, Raiford argues that Proctor "gave the jury no clue how he utilized all of his information to come to his conclusion[.]" Likewise, Raiford argues that Arambula's position regarding whether Raiford currently has a sexual interest in children was uncertain and ambiguous. As set forth above, the opinions of both experts were based on accepted techniques and the bases for their opinions were explained to the jury. Additionally, Arambula testified during both direct and cross-examination that Raiford's anger is still fused with his preoccupation with sex. Arambula explained that following his interview with Raiford and his deposition in this case, Arambula learned of a recent incident Raiford failed to disclose to Arambula, during which Raiford became angry and sexually acted out. Arambula also learned that around the time Raiford was dealing with this anger issue, Raiford was reportedly having rape fantasies. Based on Raiford's recent regression in treatment, Arambula testified there is still a risk that Raiford may victimize children despite his contention that he is no longer sexually attracted to children.
Weighing all the evidence, we conclude, the verdict does not reflect a risk of injustice that would compel ordering a new trial. See Day, 342 S.W.3d at 213. We hold the evidence is factually sufficient to support the jury's verdict. We overrule issues one and two.
RESPONDENT AS A WITNESS FOR THE STATE
Raiford argues in issue three that the State deliberately misled the jury during voir dire regarding its burden of proof, and impermissibly lowered the State's burden of proof by calling Raiford as a witness in the State's case. Raiford argues that "either the law given to the jury by the prosecutor is wrong, or the calling of [Raiford] as the first witness for the prosecution is wrong." Raiford concedes that he did not object at trial to being called as a witness for the State, but he argues that SVP cases are "quasi-criminal" and the "fundamental error" doctrine applies here and obviates the need for an objection to preserve error. We have previously held that SVP cases are not quasi-criminal. See In re Commitment of Martinez, 98 S.W.3d 373, 375-76 (Tex. App.—Beaumont 2003, pet. denied) ("Chapter 841 is a civil, not a criminal or quasi-criminal, statute."). A civil commitment proceeding is subject to the rules of civil procedure unless otherwise provided by the Act. Tex. Health & Safety Code Ann. § 841.146(b). The Texas Rules of Civil Procedure allow either party to call the opposing party as a witness. See Tex. R. Civ. P. 181.
However, even if the doctrine of fundamental error did apply to SVP cases, we conclude allowing the State to call Raiford as its first witness did not constitute error. The State explained the applicable burden of proof during voir dire and closing, and the jury charge included the proper burden of proof; therefore, calling Raiford as a witness for the State did not lower the State's burden of proof. In re Commitment of Kilpatrick, No. 09-10-00451-CV, 2011 WL 3925665, at *2 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem. op); In re Commitment of Serna, No. 09-10-00029-CV, 2011 WL 1203987, at *3 (Tex. App.—Beaumont Mar. 31, 2011, no pet.) (mem. op.). We overrule issue three. Having overruled all Raiford's issues, we affirm the judgment of the trial court.
AFFIRMED.
________________
CHARLES KREGER
Justice
Before McKeithen, C.J., Kreger and Horton, JJ.