Opinion
No. 09-08-00455-CV
Submitted on December 3, 2009.
Opinion Delivered January 14, 2010.
On Appeal from the 435th District Court, Montgomery County, Texas, Trial Cause No. 08-01-00787-CV.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Benito Davila appeals the judgment and order of civil commitment as a sexually violent predator pursuant to a jury's verdict that Davila suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. See Tex. Health Safety Code Ann. §§ 841.001-.150 (Vernon 2003 Supp. 2009). In three issues, Davila contends (1) the evidence is legally insufficient to support the jury's verdict, (2) the evidence is factually insufficient to support the jury's verdict, and (3) the trial court erred in denying Davila's motion for instructed verdict. We affirm the judgment and order of civil commitment.
In his first issue, Davila contends the evidence is legally insufficient to support the jury's verdict beyond a reasonable doubt because the only evidence supporting the finding came from conclusory and speculative testimony by the State's expert witnesses. Davila presented his legal sufficiency challenge through his motion for directed verdict. See Tex. R. Civ. P. 268. Davila's third issue contends the trial court erred in denying Davila's motion for directed verdict because the State failed to prove beyond a reasonable doubt that Davila suffers from a behavioral abnormality. The standard of review is the same for both issues. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); City of Keller v. Wilson, 168 S.W.3d 802, 823-25 (Tex. 2005). Accordingly, we address these issues together.
We review all of the evidence in a light most favorable to the verdict to determine whether a rational jury could have found beyond a reasonable doubt that Davila suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App — Beaumont 2007, no pet.). Davila argues that the State offered expert witness testimony so conclusory and speculative that it lacks probative value. See generally Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231-32 (Tex. 2004) (factually unsubstantiated bare opinions constitute no evidence); see also In re Commitment of Beasley, No. 09-08-00371-CV, 2009 WL 3763771 (Tex. App.-Beaumont Nov. 12, 2009, pet. filed) (mem. op.); In re Commitment of Barbee, 192 S.W.3d 835, 842-43 (Tex. App.-Beaumont 2006, no pet.) (noting that complaint concerning foundational data must be preserved by timely objection to admission of evidence). Davila also argues that the State failed to prove that he currently suffers from a behavioral abnormality, in light of his lack of mobility and impotence that he contends prevents him from being a menace to the health and safety of others.
In Davila's trial, two experts testified without objection either to their qualifications or to the substance of their testimony. Timothy Proctor is a board-certified forensic psychologist and Lisa Clayton is a board-certified forensic psychiatrist. A review of the record reveals the bases for the opinions stated by these experts. For instance, Proctor based his opinion that Davila meets the criteria for behavioral abnormality on a referral packet that included Davila's criminal records, prison disciplinary records, and medical information. These are the same types of records relied upon by others in his field to evaluate sex offenders. Proctor also interviewed Davila. Proctor performed actuarials on Davila, including the Static-99, the Minnesota Sex Offender Screening Tool Revised ("MnSOST-R"), and the Psychopathy Checklist Revised ("PCL-R"). In his testimony, Proctor explained the purpose and function of each of these instruments. Proctor identified specific items on each of these tests, described their significance, and applied each to Davila. This testimony revealed the basis for Proctor's psychological diagnosis of Davila based upon the Diagnostic and Statistical Manual Revised ("DSM-IV"). Proctor also explained in detail the factors he considered in his diagnosis of "pedophilia nonexclusive type, attracted to females; cocaine abuse, rule out cocaine dependence; and personality disorder." Proctor further explained the implication of each diagnosis before stating that in his professional opinion Davila is at high risk to reoffend and that Davila suffers from a behavioral abnormality. Proctor testified that Davila's PCL-R score of 37 is above the benchmark for psychopathy and that such a score combined with pedophilia was important to his opinion of risk for reoffending. After reviewing 600 pages of records, Proctor revised the MnSOST-R score and lowered it, which placed Davila in the moderate range for reoffending. This testimony is not, as Davila argues, so speculative and conclusory as to be completely lacking in probative value.
Likewise, the basis for Clayton's opinion is revealed through her testimony. Clayton testified that she reviewed the referral packet, and that the records contained in the packet are typically used by persons in her field to perform a psychiatric evaluation. Clayton also interviewed Davila for more than two hours. Clayton based her opinion that Davila suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence, in part on Davila's criminal history. That criminal history included a 1978 conviction for indecency with a child, which resulted from an occasion on which Davila was caught inserting his sexual organ into the sexual organ of a nine-month-old female. Davila reoffended in 2004, this time using a stick to penetrate the sexual organ of a six-year-old female. Davila also committed other offenses while on mandatory supervision, which Clayton found significant because it showed Davila cannot control his behavior even when he is being closely watched. Clayton noted that, typical of someone with antisocial personality traits, Davila avoids taking responsibility for his criminal acts and his alcohol and drug use. For his current behavior, Clayton noted that in the course of a 2008 child-protective-services-investigation, a four-year-old female had reported that she had slept in a bed with Davila and Davila's mother. Clayton testified that she used the "mini version" of the DSM-IV, the DSM-IV-TR, which she testified contains the consensus guidelines of diagnoses. Clayton diagnosed Davila with "pedophilia, nonexclusive type females; alcohol abuse and cocaine abuse; and personality disorder, not otherwise specified antisocial traits." She explained to the jury what the diagnoses mean. Based on the diagnoses, Clayton expressed her opinion that Davila suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. Clayton's testimony is not, as Davila argues, so speculative and conclusory as to be completely lacking in probative value.
Davila also argues that complications from diabetes have rendered him unable to act upon any aberrant urges he might have. A sexually violent offense can be committed without the use of a functional male sexual organ. See Tex. Health Safety Code Ann. § 841.002(8) (Vernon Supp. 2009) (listing sexually violent offenses, including aggravated sexual assault of a child); see e.g., Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2009) ("A person commits an offense . . . if the person intentionally or knowingly . . . causes the penetration of the . . . sexual organ of a child by any means[.]"). One of Davila's predicate offenses was committed with a stick. Furthermore, as recently as 2008, Davila was reported to have been sleeping in a bed with a four-year-old female despite his reputed lack of mobility. Davila argues that the experts failed to account for his current physical condition in forming their opinions, but his argument is not supported by the record. Both Proctor and Clayton considered Davila's diabetic condition, but noted that Davila had previously behaved in a manner that would enable him to commit an assault despite his physical disabilities.
Given the expert testimony and the evidence of Davila's long-term patterns of behavior, a rational jury could find beyond a reasonable doubt that Davila suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. Accordingly, the evidence is legally sufficient to support the verdict and the trial court did not err in submitting the case to the jury. We overrule issues one and three.
In his second issue, Davila contends that the evidence is factually insufficient to prove beyond a reasonable doubt that Davila suffers from a behavioral abnormality because his severe physical limitations make it unlikely that he can engage in predatory acts of sexual violence. "In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt." Gollihar, 224 S.W.3d at 846.
Davila argues that the experts ignored the salient fact in the record about his current physical condition — his extremely limited mobility and diminished sensation in his limbs. Both Proctor and Clayton acknowledged that Davila suffers from significant complications of diabetes. In forming their opinions, Proctor and Clayton were also aware that Davila committed his most recent predicate offense with an object and that approximately one month before the trial, a four-year-old child reported to a child protective services worker that she had been sleeping in a bed with Davila and his mother. Thus, the jury could logically infer that it would be possible for Davila to find himself in close proximity to children and that it would be physically possible for him to commit a sexual assault notwithstanding his impotence. We hold the evidence is factually sufficient to support the jury's verdict. We overrule issue two and affirm the judgment.
AFFIRMED.