Opinion
No. 09-06-244 CV
Submitted on April 12, 2007.
Opinion Delivered May 17, 2007.
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 05-08-06850-CV.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
The trial court ordered the civil commitment of Hector Sanchez after the jury found him to be a sexually violent predator ("SVP"). See Tex. Health Safety Code Ann. §§ 841.001-841.150 (Vernon 2003 Supp. 2006). 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 (Vernon 2003). 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." Tex. Health Safety Code Ann. § 841.002(2) (Vernon Supp. 2006). In his sole issue on appeal, Sanchez challenges the legal sufficiency of the evidence that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. As subparts of this issue, Sanchez argues the State only showed that he committed one predatory act of sexual violence; he was not diagnosed with pedophilia; and the State's evidence that he was likely to commit a predatory act of sexual violence was conclusory. We affirm.
Because the SVP statute requires the State to prove beyond a reasonable doubt that Sanchez is a sexually violent predator, we apply the standard of review used in criminal cases for legal sufficiency of the evidence. See Tex. Health Safety Code Ann. § 841.062 (Vernon 2003); 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In addressing a legal sufficiency issue, we review all of the evidence in the light most favorable to the verdict to determine whether a rational jury could have found, beyond a reasonable doubt, that Sanchez suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Mullens, 92 S.W.3d at 885.
At the beginning of the trial, portions of Sanchez's responses to the State's requests for admissions were read into the record. Included among those responses were Sanchez's admissions that he was twice convicted of aggravated sexual assault — once in 1985 and once in 1999. Sanchez admitted that while the victim in the 1985 case was a twenty-year-old stranger, the victim in the 1999 case was a seven-year-old child. Sanchez also admitted that he was on mandatory supervision for the prior sexual offense when he committed the 1999 sexual offense, and his parole was revoked as a result. In addition, Sanchez admitted that he was incarcerated for almost eight years for his 1985 offense before being released on parole.
The offense of aggravated sexual assault, as set forth in section 22.021 of the Penal Code, is one of the offenses specifically included in the definition of "sexually violent offense" in the SVP statute. See Tex. Health Safety Code Ann. § 841.002(8)(A) (Vernon Supp. 2006); Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006). Viewing this prior offense evidence in the light most favorable to the verdict, the jury could reasonably have concluded that Sanchez was a repeat sexually violent offender. See Tex. Health Safety Code Ann. § 841.003(b) (Vernon 2003) (defining "repeat sexually violent offender" as including a person who has been convicted of more than one sexually violent offense and was sentenced for at least one of the offenses); see also id. § 841.003(a) (including a person's status as a repeat sexually violent offender as part of the definition of "sexually violent predator").
We now turn to Sanchez's contention that "a diagnosis of paraphilia . . . for a person who committed a rape and later an unrelated act of child molestation adds nothing to a finding that a person is a repeat sexually violent offender. . . ." The crux of Sanchez's argument appears to be that because his first victim was an adult and his second victim was a child, and he was not diagnosed with pedophilia, he cannot be classified as a repeat sexually violent offender.
At trial, Dr. Rahn Bailey, a board-certified psychiatrist, testified that after meeting with Sanchez for approximately one hour and reviewing numerous records pertaining to Sanchez, he diagnosed Sanchez as suffering from chemical dependency and paraphilia. Dr. Bailey also testified that Sanchez "certainly could meet a personality disorder diagnosis." Dr. Bailey further testified that he believes Sanchez has a behavior abnormality that makes him likely to engage in predatory acts of sexual violence. Sanchez's counsel did not lodge any objections to Dr. Bailey's testimony.
Dr. Antoinette McGarrahan, a clinical psychologist, testified by deposition. Dr. McGarrahan testified that she reviewed Sanchez's records and interviewed him for approximately two and a half hours. Dr. McGarrahan diagnosed Sanchez with "[p]araphilia, not otherwise specified, multiple paraphilia." Dr. McGarrahan explained that paraphilia is a sexual attraction to or sexual behavior with nonconsenting humans or objects, and she explained that the diagnosis is intended to describe someone "who is, in all intents and purposes, addicted to sex." Dr. McGarrahan also testified that she diagnosed Sanchez as suffering from antisocial personality disorder with psychopathic traits. Sanchez's counsel did not object when any of Dr. McGarrahan's testimony was offered by the State.
Sanchez concedes that he did not object at trial, but asserts that he was not required to object to allegedly conclusory expert testimony. When, as here, a complaint concerns the foundational data used or relied upon by an expert, a party must present a timely objection to the trial court to preserve any complaint for appeal. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; In re Commitment of Corder, No. 09-06-020-CV, 2006 WL 3742805, at *3 (Tex.App.-Beaumont December 21, 2006, no pet.) (mem. op.); In re Commitment of Rhynes, No. 09-05-496-CV, 2006 WL 3627007, at *1 — *2 (Tex.App.-Beaumont, December 14, 2006, no pet.) (mem. op.); In re Commitment of Barbee, 192 S.W.3d 835, 843 (Tex.App.-Beaumont 2006, no pet.). To avoid waiver, the record must show that the evidence of which Sanchez complains was not probative on its face. See Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). The record in this case does not so demonstrate. We have considered the arguments offered by Sanchez, and we decline his invitation to overrule Corder, Rhynes, and Barbee. Because Sanchez did not object at trial to the testimony offered by Drs. Bailey and McGarrahan, he has waived review of this complaint. See Barbee, 192 S.W.3d at 843.
We reach the same result with respect to Sanchez's contention that the testimony from Drs. Bailey and McGarrahan that he was likely to commit a predatory act was conclusory. Both expert witnesses testified that Sanchez suffers from a behavioral abnormality that makes him likely to reoffend. Both experts also testified about meeting with Sanchez, reviewing his records, and performing actuarial assessments of him before formulating their diagnoses. Furthermore, both witnesses identified Sanchez's various risk factors for reoffending. Sanchez's complaint on appeal necessarily involves attacking the foundational data used or relied upon by the expert witnesses. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; In re Corder, 2006 WL 3742805; Rhynes, 2006 WL 3627007; Barbee, 192 S.W.3d at 843; see also In re Commitment of Hall, No. 09-05-482-CV, 2006 WL 1682194, at *5 (Tex.App.-Beaumont, June 15, 2006, no pet.) (mem. op.). Because Sanchez did not object at trial to the testimony of Drs. Bailey and McGarrahan, and the record does not demonstrate that the evidence of which Sanchez complains was non-probative on its face, Sanchez has waived appellate review. See Coastal Transp., 136 S.W.3d at 233; Barbee, 192 S.W.3d at 843. Furthermore, the record contains sufficient evidence that Sanchez was a repeat sexually violent offender and was likely to reoffend. We overrule Sanchez's sole issue and affirm the trial court's judgment.
AFFIRMED.