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holding the jury could have considered appellant's inconsistent statements regarding whether he was aroused while committing the offenses when evaluating his credibility about his acceptance of his problem and intentions not to re-offend in the future
Summary of this case from In re BrownOpinion
NO. 14-17-00115-CV
01-09-2018
IN RE COMMITMENT OF GEORGE HENRY WHITE
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Cause No. 811575-Z
MEMORANDUM OPINION
In this appeal from a civil commitment order, a jury found that George Henry White is a sexually violent predator as defined in the Texas Health and Safety Code and subject to civil commitment. See Tex. Health & Safety Code § 841.001-.151. On appeal, White contends that the trial court erred in granting a partial directed verdict finding that he is a "repeat sexually violent offender" under section 841.003 of the Texas Health and Safety Code because White was entitled to have the jury determine that issue. White also challenges the jury's finding that White "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence" on the grounds that the evidence is legally and factually insufficient to show beyond a reasonable doubt that White has serious difficulties controlling his behavior and that White's sexual offenses were committed for the primary purpose of victimization. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
I. The Texas Civil Commitment of Sexually Violent Predators Act
The Texas Civil Commitment of Sexually Violent Predators Act (SVP Act) provides for the civil commitment of sexually violent predators based on legislative findings that "a small but extremely dangerous group of sexually violent predators exits and that those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory actions of sexual violence." Tex. Health & Safety Code § 841.001. The Legislature expressly found that "a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state." Id.
Under the SVP Act, a person is a sexually violent predator 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." Id. § 841.003(a). Before the State may file suit to commit, the person must be administratively determined to be a sexually violent predator. Id. §§ 841.021-.023; In re Commitment of Bohannan, 388 S.W.3d 296, 298 (Tex. 2012). To aid in this determination, the person is examined by an expert, who makes "a clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques." Tex. Health & Safety Code § 841.023(a).
Upon referral of the person to the State, an attorney representing the State may file a civil commitment proceeding in the court of conviction for the person's most recent sexually violent offense. Tex. Health & Safety Code § 841.041(a). If the judge or jury determines that the person is a sexually violent predator, the trial court must commit the person for treatment and supervision to begin on the date of release from prison and to continue "until the person's behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence." Id. § 841.081(a).
II. White's Trial
In February 2016, the State filed an original petition alleging that White is a sexually violent predator and requesting that he be committed for treatment and supervision. White answered with a general denial, asserted several affirmative defenses, and demanded a jury trial. The case was tried to a jury in October 2016.
The State presented evidence that in 1988, White molested C.L., an eight-year-old girl. White subsequently pleaded guilty to the offense of indecency with a child and was sentenced to ten years' community supervision. While on community supervision, White was convicted of two additional sex offenses against young girls, which resulted in the revocation of his community supervision. In the first, White pleaded guilty to aggravated sexual assault of S.K., a child under fourteen, in 1994. In the second, White pleaded guilty to indecency with a child by intentionally and knowingly engaging in sexual contact with B.H. in 1998. White was sentenced to eighteen years' confinement for these offenses, and was serving these sentences at the time of this commitment action.
The State presented Dr. Jason Dunham, a forensic psychologist who performed a clinical assessment of White, to testify concerning his opinion about whether White suffers from a behavioral abnormality. Dr. Dunham testified that a "behavioral abnormality" is "a congenital or acquired condition that affects the person's emotional or volitional capacity that predisposes the person to commit sexually violent acts to the point that they become a menace to the health and safety of others." In Dr. Dunham's opinion, White suffers from such a behavioral abnormality.
Dr. Dunham's testimony is consistent with the statutory definition of "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." Tex. Health & Safety Code § 841.002(2).
Dr. Dunham explained that in performing his assessment, he reviewed records indicating that that White assaulted C.L. during a time when White was thirty-one years old, married with three children, and living with C.L.'s family. C.L. was eight years old when White fondled her underneath her panties and rubbed her vagina one night while she was asleep in her bed. White admitted his actions, but told Dr. Dunham that he was intoxicated. White also stated that he was not sexually aroused, and that it was "just something stupid that he did." White said essentially the same thing in his deposition. However, when White gave a statement at the time of the offense, he admitted to molesting C.L.
According to Dr. Dunham, during his interview White attributed his commission of the offense against C.L. to alcohol, and he similarly failed to take any responsibility for his other offenses by asserting that they were accidental or there was no sexual intent. Dr. Dunham stated that White did not acknowledge his problem or even that he had a sexual deviancy. Dr. Dunham believed that in discussing the offenses, White indicated that he would become aroused, but he would not actually admit it. And, because White does not feel he has a problem that needs to be addressed, Dr. Dunham opined that White will not try to avoid certain situations when he returns to the community. Dr. Dunham also opined that White's denial of the offenses impairs his ability to progress in sex offender treatment, because the first step in that treatment requires a person to provide an honest disclosure of their offenses.
Dr. Dunham also testified concerning White's two additional convictions for sex offenses that occurred while White was on probation for the offense against C.L. Dr. Dunham stated that in 1994, when White was thirty-seven years old, he assaulted S.K., his six-year-old niece. White and S.K. were sitting in a truck waiting for S.K.'s father, who was purchasing supplies at a hardware store, when White pulled up S.K.'s dress and put his finger inside her vagina. When Dr. Dunham asked White about this offense, White said that S.K. had been playing in the dirt and he was wiping the dirt off of her when his finger slipped inside her vagina. White gave a similar explanation in his deposition. In a statement, however, White admitted touching S.K. on her vagina under her dress, but said that it occurred at S.K.'s house, not in the truck. Dr. Dunham believed that White's two accounts indicate that there were additional incidents with S.K. White also admitted in his statement that he touched S.K.'s sister, J.K., on the vagina. In his deposition, however, White did not admit to anything with J.K. Dr. Dunham explained that White was likely not prosecuted for this offense because J.K. was developmentally delayed and would not have been able to testify.
According to Dr. Dunham, in 1998, B.H. was seven years old and lived next door to White, who was then forty years old and married to his second wife. White lured B.H. into a shed in his yard, hugged her from behind while grabbing her breasts and vagina over her clothes, rubbed his crotch against her, and ejaculated. In his deposition, White denied the alleged conduct. However, when he gave a statement after the offense, White admitted pressing his penis against B.H. in the shed and ejaculating in his pants.
Dr. Dunham also reported two incidents in which White was arrested but the cases were later dismissed. One involved an accusation that he molested his daughter, and another was an arrest in 1988 or 1989 against an eight-year-old neighbor girl. White denied molesting either girl.
Dr. Dunham opined that White's sexual interest in prepubescent girls between the ages of four and eight indicated that White was sexually deviant. Based on several criteria, Dr. Dunham diagnosed White as having pedophilic disorder, meaning that White has sexual arousal for adults and children, but he has a pattern of being focused on girls under the age of thirteen. Dr. Dunham explained that pedophilic disorder is a sexual deviancy that is a lifelong, chronic condition that is treatable, but not curable. Dr. Dunham also determined that based on the Psychopathy Checklist Revised, White fell within the moderate range for psychopathy. Dr. Dunham did not think that White was a psychopath, but he was "within the average for most offenders who have been to prison" and was no more antisocial than any other offender. Dr. Dunham also diagnosed White as having a history of alcohol abuse.
Dr. Dunham performed a "Static-99R" test to evaluate White's estimated risk for sexual reconviction. According to Dr. Dunham, White scored in a low risk category for being reconvicted of a sexual offense going forward, in part due to his age at the time of his release. Dr. Dunham explained that the Static-99R was not a measure of reoffending rates or re-arrest rates, but was limited to reconviction rates. He opined that the Static-99R did not accurately estimate White's level of risk because the test measures the number of charges and convictions, but does not account for the fact that White may have had up to six other victims and multiple instances with some of the victims. Dr. Dunham explained that the test also does not measure dynamic factors, such as whether a person lacks empathy or remorse, which may elevate the risk of reconviction, or whether the person takes responsibility for his actions.
In Dr. Dunham's view, White was at high risk to reoffend. In reaching his opinion, Dr. Dunham considered recognized risk factors for sexually reoffending. According to Dr. Dunham, White's most significant risk factors were the total number of young victims and the number of offenses. Further, Dr. Dunham noted a pattern in which White offended for over nine years before being incarcerated; he planned some of his offenses and used deceit to offend; he offended against girls between the ages of four and eight; and his victims were both related and unrelated to him. Dr. Dunham found that the timing of White's offenses was also a risk factor, since White reoffended while on probation, after treatment, and while he was married. White also showed a lack of empathy and remorse by not accepting responsibility for his acts. Conversely, Dr. Dunham explained that White's age of sixty is a "protective" factor—meaning a factor that will statistically reduce risk—but his continuing to have sexually deviant thoughts about children would temper that factor. White's behavior in prison was also a protective factor because he has followed the rules and should be credited for that.
Dr. Dunham noted that White was currently in a nine-month sex offender treatment program. He described White's progress as "good and bad" in that White may be starting to acknowledge a sexual deviancy, but he is also continuing to struggle with deviant thoughts of girls. The records of his treatment also indicated that White was not applying what he was learning to himself. In Dr. Dunham's opinion, completing this program would not be enough treatment for White because he was at a high risk level when he entered prison.
In reaching his ultimate assessment of White, Dr. Dunham considered the fact that White has struggled with pedophilia for a long time and has a long history of sexually assaulting young girls; that he has not been deterred by previous conviction, previous supervision, or previous sex offender treatment; that he was at high risk entering prison and has done little to decrease that risk; and that he would need much more treatment to reduce that risk. Accordingly, Dr. Dunham opined that White suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
The State also called White to testify. White testified that he was currently serving two concurrent eighteen-year prison sentences for aggravated sexual assault of a child and indecency with a child by contact. His sentence would be completed at the end of 2017.
White testified that on the night he offended against C.L., he saw her sleeping in her underwear, which caused him to feel sexual desire. White put his hand underneath her panties and rubbed her vagina, but he stopped when C.L. woke up. C.L. told her family what had happened the next day, and White and his family were asked to leave the house. White explained that he touched C.L.'s vagina because he and his wife were not having any sex while living with C.L.'s family, and he had been drinking that day. But, White stated that he blamed himself, not the alcohol, and admitted that he was aroused. White denied touching C.L.'s vagina more than once. He also denied the allegations that he molested his own daughter and another girl.
White acknowledged that he subsequently assaulted S.K. in the truck while he was on probation and attending sex offender treatment. According to White, S.K. was not wearing any underwear, and he saw that she had dirt on her legs and crotch area. When he started brushing the dirt off of her crotch area, he rubbed her vagina and ended up penetrating it with his finger. White admitted he did so intentionally, contrary to his previous statement in his deposition that it was accidental. White also admitted that he was sexually aroused by S.K. He denied touching S.K. more than once. As to the allegation that White also touched S.K.'s sister J.K., White acknowledged that he touched J.K.'s vagina, which he had previously denied, but stated that he did not know why he did it. White acknowledged J.K. was developmentally delayed and could not speak.
White admitted that he was still on probation and had completed his sex offender treatment when he offended against B.H. White testified that B.H. lived next door to him, and one day she came over to his residence and they ended up in a storage shed. White admitted hugging her from behind, but he did not remember touching her breasts over her clothing. White denied rubbing his groin against her and ejaculating in his pants. According to White, he hugged her from behind because she had no father and he felt bad for her, and he denied ever touching B.H. for sexual pleasure or having any sexual attraction to her. White acknowledged that this testimony differed from his statement in which he admitted that he pressed his penis against her and ejaculated in his pants. White also stated that on another occasion, he accidentally touched B.H.'s crotch, and he denied touching her for sexual pleasure.
White testified that he was currently in a nine-month sex offender treatment program. He stated that he had finished the program, but still had some assignments to complete. During group therapy, White admitted to having a sexual attraction to female children and to having a significant history of sexually inappropriate behavior with young females. White testified that he believes that he needs additional treatment, because it was his understanding that if he makes parole he will be required to participate in a sex offense treatment program. White stated that the last time he had a sexual fantasy about a child was a couple of month ago. Since being in group therapy, White now believes that he has a problem with sexual offending, but understands that if he is accused of another crime he will spend the rest of his life in prison. On cross-examination, however, White admitted that he told his treatment provider that he still had sexual attraction to young girls so that he wouldn't be disciplined. When asked if it was safe for White to be around children, White answered, "No."
After both parties rested, the State moved for a directed verdict on the issue of whether White is a repeat sexually violent offender. White's counsel objected on the ground that the issue was for the jury to determine. The trial court granted the State's motion. The jury unanimously found White to be a sexually violent predator, and the trial court signed a final judgment and order of civil commitment on October 13, 2016.
White filed a motion for new trial arguing, among other things, that the evidence was legally and factually insufficient to support the jury's verdict. The motion for new trial was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal followed.
ISSUES ON APPEAL
In his first issue, White contends that the trial court erred in granting a partial directed verdict on the repeat sexually violent offender element. In his second, third, fourth, and fifth issues, White contends that the evidence is legally and factually insufficient to support a finding beyond a reasonable doubt that he has "serious difficulties controlling his behavior" and that his sexual offenses were committed "for the primary purpose of victimization." We first consider the partial directed verdict and then address the legal and factual sufficiency of the evidence.
I. The Partial Directed Verdict
In his first issue, White contends that the trial court erred in granting the State a partial directed verdict on the repeat sexually violent offender element because he was entitled to a jury finding on that element. See id. § 841.003(a) ("A person is a sexually violent predator 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."). White does not contend that the evidence raises a fact issue on the repeat sexually violent offender element that should have been determined by the jury; instead, he argues that it is always improper for a trial court to grant a directed verdict in an SVP Act case.
When a jury is demanded in a civil commitment proceeding under the SVP Act, the jury "shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." See Tex. Health & Safety Code § 841.062(a). The SVP Act provides that "a civil commitment proceeding is subject to the rules of procedure and appeal for civil cases." Id. § 841.146(b). However, to the extent that there is any conflict between the SVP Act and the rules of procedure and appeal for civil cases, the SVP Act controls. Id.
White contends that a conflict exists between the rules of civil procedure, which permit a trial court to grant a directed verdict in a jury trial when no genuine issue of material fact exists, and the plain language of the statute, which reflects the Legislature's intent that "a jury (when demanded) is the sole determiner of whether a person is a sexually violent predator." White also argues that the court in In re Commitment of Lemmons wrongly decided the issue by ignoring the SVP Act's plain language that the SVP Act controls in the event of a conflict between it and the rules of civil procedure. See In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 WL 1400671, at *3 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.) ("[W]e perceive no conflict between [section 841.062(a) of] the SVP statute and the Rules of Civil Procedure that precludes the granting of a directed verdict in a jury trial when no evidence of probative value raises an issue of material fact on the question presented.").
Recently, this court rejected a similar argument and held that "a trial court may grant a partial directed verdict that a person is a repeat sexually violent offender if, under the standard for legal sufficiency of the evidence . . . , there is no probative evidence raising a fact issue to the contrary." In re Commitment of Harris, ___ S.W.3d ___, No. 14-16-00706-CV, 2017 WL 6003623, at *6 (Tex. App.—Houston [14th Dist.] Dec. 5, 2017, no pet. h.) (citing Lemmons, 2014 WL 1400671, at *3). The court reasoned that "[w]hen undisputed evidence demonstrates that a person is a repeat sexually violent offender, reasonable jurors can make only one finding as to that element—a conclusion that remains true whether the burden of proving the element is by a preponderance of the evidence or beyond a reasonable doubt." Id.
Relevant here, a person is a repeat sexually violent predator "if the person is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses." Tex. Health & Safety Code § 841.003(b). The State presented evidence that White was convicted and sentenced to concurrent sentences of eighteen years in prison for aggravated sexual assault of a child and indecency with a child by contact. White also testified that he was convicted and served prison time for those offenses. Aggravated sexual assault of a child and indecency with a child by contact are "sexually violent offenses" for purposes of the SVP Act. See id. § 841.002(8)(A); Tex. Penal Code §§ 21.11(a)(1) (indecency with a child by contact), 22.021 (aggravated sexual assault).
No fact issue existed for the jury to determine regarding whether White is a repeat sexually violent offender. Accordingly, the trial court did not err by granting the State a partial directed verdict on this element. See Harris, 2017 WL 6003623, at *6-7; see also In re Commitment of Black, 522 S.W.3d 2, 6 (Tex. App.—San Antonio 2017, pet. denied) (holding that "chapter 841 does not preclude the trial court from granting a directed verdict on the undisputed issue of whether [appellant] was a 'repeat sexually violent offender.'"). We overrule White's first issue.
II. Sufficiency of the Evidence
In his second, third, fourth, and fifth issues, White challenges the jury's finding that he is a sexually violent predator by arguing that the evidence is insufficient to support a finding beyond a reasonable doubt that he suffers from a behavioral abnormality because there is legally and factually insufficient evidence that he currently has "serious difficulties controlling his behavior" and that his offenses were committed "for the primary purpose of victimization."
A. Standards of Review and Applicable Law
The SVP Act requires a finding that a person is a sexually violent predator beyond a reasonable doubt; therefore, we review legal and factual sufficiency challenges under the standard of review used in criminal cases. Tex. Health & Safety Code § 841.062(a); In re Commitment of Wirtz, 451 S.W.3d 462, 464 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
In a legal sufficiency challenge, we review all of the evidence in the light most favorable to the verdict. Wirtz, 451 S.W.3d at 464; In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "We look to see if a rational factfinder could have found, beyond a reasonable doubt, the elements required for commitment under the SVP statute." Mullins, 92 S.W.3d at 885. It is the fact finder's responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. See id. at 887.
Although factual sufficiency review has been abandoned in criminal cases, we perform a factual sufficiency review in SVP Act cases when the issue is raised on appeal. Harris, 2017 WL 6003623, at *3 (citing In re Commitment of Dever, 521 S.W.3d 84, 86 (Tex. App.—Fort Worth 2017, no pet.)). Under a factual sufficiency review, we consider "whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that would compel ordering a new trial." Harris, 2017 WL 6003623, at *3; Dever, 521 S.W.3d at 86. 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." Wirtz, 451 S.W.3d at 464 (quoting In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App.—Beaumont 2007, no pet.)).
To have White civilly committed as a sexually violent predator, the State was required to prove that White: "(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 § 841.003(a). The trial court instructed the jury that it had granted a directed verdict that White was a "repeat sexually violent offender"; therefore, the sole issue for the jury to resolve in determining whether White was a sexually violent predator was the second element: whether White "suffers from a behavioral abnormality that makes [him] likely to engage in a predatory act of sexual violence." Id. § 841.003(a)(2).
A "behavioral abnormality" is defined 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). A "predatory act" is defined as "an act directed toward individuals, including family members, for the primary purpose of victimization." Id. § 841.002(5). Here, the jury charge tracked the statutory elements the State was required to prove, and included the definitions of "behavioral abnormality" and "predatory act" to assist the jury in answering the question of whether White is a sexually violent predator.
B. Serious Difficulty Controlling Behavior
In his second and third issues, White contends that the evidence is legally and factually insufficient to support a finding that he currently has "serious difficulties controlling his behavior."
1. A finding of lack of control is implicit in the jury's finding that White suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
White argues that in Kansas v. Crane, the United State Supreme Court required "proof of serious difficulty in controlling behavior" before a person could be civilly committed as a sexually violent predator. See 534 U.S. 407, 413 (2002). The Court explained that, considering "the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, [the lack of control] must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Id.; see also Kansas v. Hendricks, 521 U.S. 346, 358 (1997) ("The precommitment requirement of a 'mental abnormality' or 'personality disorder' . . . narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.").
White acknowledges that in In re Commitment of Almaguer, the court decided that a separate jury instruction on "serious difficulty controlling behavior" was not required in a civil commitment case because a lack-of-control determination is implicit in a jury's finding of a "behavioral abnormality." See 117 S.W.3d 500, 505-06 (Tex. App.—Beaumont 2003, pet. denied). Other courts have reached the same result. See, e.g., Wirtz, 451 S.W.3d at 466 (recognizing that a jury's verdict entails a determination that he has serious difficulty in controlling behavior); In re Commitment of Browning, 113 S.W.3d 851, 863 (Tex. App.—Austin 2003, pet. denied) ("A finding that a person suffers from an emotional or volitional defect so grave as to predispose him to threaten the health and safety of others with acts of sexual violence entails a determination that he has "'serious difficulty in controlling behavior.'"). Because a finding of lack of control is implicit in the jury's finding that White suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, we review the record to determine whether the evidence is legally and factually sufficient to support the jury's finding.
2. The evidence is legally and factually sufficient.
White argues that the State presented legally and factually insufficient evidence that he is currently having serious difficulty controlling his behavior and that the State failed to show how White's past behavior connects to his present behavior. According to White, although Dr. Dunham believes that White has a hard time controlling his desires because of his pedophilic disorder, Dr. Dunham admitted that White "currently has no signs of this illness." White also argues that he has been a model prisoner while incarcerated, and contends that his admissions that he has sexual fantasies and needs additional treatment should not be used against him because it is White's understanding that additional treatment is required by parole. If anything, White argues, his statements about himself are evidence that he can control his behavior because he has had these thoughts while incarcerated but has not acted on them.
We disagree with White's characterization of the evidence. The State presented evidence that White committed acts of sexual violence against young girls while on probation, during and after sex offender treatment, and over a long period of time. Dr. Dunham diagnosed White as having pedophilic disorder, which causes White to have "a hard time controlling his desires" for children. When asked specifically if there were signs and symptoms indicating that White's pedophilic disorder is "currently active," Dr. Dunham stated that he "would have said no," but he went on to explain that White's latest treatment notes show that White continues to struggle with his attraction to and sexual arousal by young females. Dr. Dunham also identified several significant risk factors to support his opinion that White was at high risk to reoffend. Consequently, Dr. Dunham opined that White suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
Additionally, the jury also could have inferred from White's own testimony concerning the circumstances of his crimes that he has serious difficulty controlling his behavior. For example, White testified he became aroused when he saw C.L. sleeping in her underwear, so he put his hand under her panties and rubbed her vagina. White subsequently assaulted S.K. when he started to brush dirt off her, but ultimately "ended up" penetrating her vagina with his finger. See Hendricks, 521 U.S. at 358 ("As we have recognized, previous instances of violent behavior are an important indicator of future violent tendencies.") (citations and alteration omitted). The jury also could have considered White's inconsistent statements concerning whether or not he was aroused while committing the offenses when evaluating the credibility of White's statements concerning his acceptance that he has a problem with sexual offending, his need for additional treatment, and his intention not to reoffend in the future. See Mullins, 92 S.W.3d at 887 (stating that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may resolve conflicts and contradictions in the evidence by believing all, part, or none of the witnesses' testimony).
We conclude that the evidence is legally sufficient to support the jury's finding that White suffers from a behavioral abnormality as defined in the SVP Act, which encompasses the implicit conclusion that White has serious difficulty controlling his behavior. See, e.g., Wirtz, 451 S.W.3d at 466; Browning, 113 S.W.3d 851, 863; Almaguer, 117 S.W.3d at 505. We also conclude that the evidence is not so weak that it "reflects a risk of injustice that would compel ordering a new trial." See Harris, 2017 WL 6003623, at *3; Dever, 521 S.W.3d at 86. We overrule White's second and third issues.
C. Primary Purpose of Victimization
In his fourth and fifth issues, White contends that the evidence is legally and factually insufficient to show that his sexual offenses were committed "for the primary purpose of victimization" and argues that the State should be required to present evidence supporting this finding beyond a reasonable doubt because it is a statutory element necessary to a finding that a person has a behavioral abnormality.
1. A finding that White's sexual offenses were committed for the primary purpose of victimization is implicit in the jury's finding that White suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
White argues that because the Legislature defined "predatory act" to mean an act directed toward individuals "for the primary purpose of victimization," see Tex. Health & Safety Code § 841.002(5), the State was required to present evidence of that element. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (stating that courts should enforce the law as written). The State's failure to do so, White urges, means that the State did not prove its case beyond a reasonable doubt as required by the SVP Act. White argues that decisions holding otherwise are based on a faulty rationale that ignores the Legislature's intent in defining "predatory act." See In re Commitment of Williams, No. 09-14-00407-CV, 2016 WL 1600789, at *5 (Tex. App.—Beaumont Apr. 21, 2016, no pet.) (mem. op.) ("'Primary purpose of victimization' is not a specified element in section 841.003 [of the Texas Health and Safety Code].") (quoting In re Commitment of Simmons, No. 09-09-00478-CV, 2011 WL 2420832, at *1 n.1 (Tex. App.—Beaumont June 16, 2011, no pet.) (mem. op.) (alterations in original).
Recently, however, this court rejected a similar argument, holding that whether a person's likely future acts are for the primary purpose of victimization is not a separate issue from whether a person suffers from a behavioral abnormality that predisposes him to commit a sexually violent offense. See Harris, 2017 WL 6003623, at *4 ("[W]e conclude that evidence of a 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 is sufficient to show that the person is likely to engage in predatory act of sexual violence for the primary purpose of victimization."). In reaching its conclusion, the Harris court relied on In re Commitment of Bohannan, a 2012 opinion of the Supreme Court of Texas. Id. (citing In re Commitment Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012)).
In Bohannon, the supreme court disagreed with an appellate court's holding that the statutory definition of "behavioral abnormality" has two separate components: (1) an acquired or congenital condition; and (2) a predisposition to commit a sexually violent offense. 388 S.W.3d at 302. Reasoning that "[t]he condition and the predisposition are one and the same," the Bohannon court held that "whether a person suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence" is "a single, unified issue." Id. at 302-03.
Similarly, we conclude that "implicit in a finding that a person suffers from a behavioral abnormality is a conclusion that the person is likely to engage in a predatory action of sexual violence for the primary purpose of victimization." Harris, 2017 WL 6003623, at *4 (quoting In re Commitment of Ramirez, No. 09-13-00176-CV, 2013 WL 5658597, at *2 (Tex. App.—Beaumont Oct. 17, 2013, no pet.) (mem. op.)); see also In re Commitment of Mares, 521 S.W.3d 64, 74 (Tex. App.—San Antonio 2017, pet. denied) ("[U]nder the plain statutory language [of the definition of 'behavioral abnormality'], it is the existence of the condition itself that creates a high likelihood of sexually reoffending.").
2. The evidence is legally and factually sufficient.
White next argues that the State presented legally and factually insufficient evidence showing that he acted, or ever will act, for the primary purpose of victimization. White argues that his crimes are not similar to the crimes of aggravated sexual assault with a deadly weapon and attempted aggravated sexual assault with a deadly weapon, which the court in In re Commitment of Bernard concluded were committed for the purpose of victimization. See No. 09-10-00462-CV, 2012 WL 2150328, at *3 (Tex. App.—Beaumont June 14, 2012, no pet.) (mem. op.) ("The nature of these offenses demonstrates that they were committed for the purpose of victimization.").
We are not persuaded by White's argument. The SVP Act specifically identified the sex offenses for which White was convicted and serving prison time as "sexually violent offenses." Tex. Health & Safety Act § 841.002(8)(A); Tex. Penal Code §§ 21.11(a)(1), 22.021. By their nature, then, these offenses were committed for the purpose of victimization, and White was found to be a repeat sexually violent offender as a result. See id. §841.003(b)(1)(A).
Additionally, Dr. Dunham diagnosed White as having a behavioral abnormality—pedophilic disorder—and opined that White was at high risk of sexually reoffending. Dr. Dunham's assessment of White took into consideration: White's long history of sexually assaulting young girls; his failure to be deterred by a previous conviction or sex offender treatment; and his need for much more treatment to reduce his risk of reoffending. Based on his assessment, Dr. Dunham opined that White suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id. § 841.003(a).
As noted above, "evidence of a 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" is sufficient to support a finding that the person meets the second element of the definition of sexually violent predator. Harris, 2017 WL 6003623, at *4. Regarding the extent of his predisposition, White admitted that he reoffended while on probation and during and after sex offender treatment. He said that he sexually offended against C.L. because he saw her sleeping in her underwear, which caused him to feel sexual desire. He sexually offended against S.K. because he was brushing dirt off her crotch area. White denied sexually offending against B.H., despite pleading guilty, and said that he merely hugged her from behind because he felt sorry for her. He also admitted to sexually offending against a developmentally delayed child, but stated that he did not know why he did it. White acknowledged that he continued to have sexual fantasies about children and needed more treatment, and he also admitted that it was not safe for him to be around children.
Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, beyond a reasonable doubt, that White is predisposed to commit a sexually violent offense to the extent that he is a menace to the safety of others; thus, the evidence is legally sufficient. See Harris, 2017 WL 6003623, at *5. Weighing all of the evidence, the verdict does not reflect a risk of injustice that would compel ordering a new trial. Id.
CONCLUSION
We overrule White's issues and affirm the trial court's judgment and order of civil commitment.
/s/ Ken Wise
Justice Panel consists of Justices Busby, Wise, and Yates.
Senior Justice Leslie Brock Yates sitting by assignment.