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In re Commitment of Gomez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 14, 2017


         On appeal from the 103rd District Court of Cameron County, Texas.

          Before Justices Rodriguez, Benavides, and Longoria.



         On August 17, 2016, a jury found beyond a reasonable doubt that Santos Gomez III is a sexually violent predator (SVP). See Tex. Health & Safety Code Ann. § 841.003(a) (West, Westlaw through 2017 1st C.S.). The district court received the jury's verdict, adjudged Gomez as an SVP, and civilly committed him for sex-offender treatment and supervision. By three issues, Gomez contends: (1)-(2) the evidence is legally and factually insufficient to find that he is an SVP because there was no mental health diagnosis and, if none was required, there was such an analytical gap in the State's expert's reasoning that a diagnosis recognized by the Diagnostic and Statistical Manual for Mental Disorders, 5th edition (DSM-V) should have been required; and (3) the trial court erred in allowing the State's expert to testify about the Psychopathy Checklist-Revised (PCL-R) and Gomez's psychopathic traits because that testimony did not lead to a mental health diagnosis. We affirm.

         I. Background

         A. Prior Convictions

         On May 30, 2008, in Cause No. 04-CR-511-D, a Cameron County District Court revoked Gomez's probation and convicted Gomez of five counts of aggravated sexual assault of a child, see Tex. Penal Code Ann. § 22.021 (West, Westlaw through 2017 1st C.S.), and one count of indecency with a child (by contact), see id. § 21.11(a)(1) (West, Westlaw through 2017 1st C.S.), and sentenced him to a ten-year term of imprisonment. That same day, the same court, in cause No. 07-CR-1945-D, convicted Gomez of two counts of aggravated sexual assault of a child and sentenced him to a ten-year term of imprisonment. See id. § 22.021.

         B. Civil Commitment Proceeding

         On January 14, 2016, the State filed its original petition for civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001-.153 (West, Westlaw through 2017 1st C.S.). It alleged that Gomez is an SVP and requested that he be committed for treatment and supervision. See id. § 841.003(a).

         1. SVP Law

         Under Texas law, a person can be found to be 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. A "[b]ehavioral abnormality" is "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).

         2. Gomez's Testimony

         Gomez's commitment proceeding was tried to a jury. Gomez testified regarding his prior convictions. He explained that the first six offenses involved his girlfriend's twelve-year-old sister and occurred when he was living with his girlfriend's family. Gomez agreed that, in his opinion, this sexual contact was consensual. He further testified that it only happened once, yet acknowledged that, in his voluntary written statement to police, he had said that it happened on other occasions. The trial court admitted this statement into evidence. Gomez further acknowledged that he was convicted of five counts of aggravated sexual assault against this child, offenses that happened on different dates. The trial court placed Gomez on probation for this conviction but, as Garcia testified, the court revoked his probation, in part, because he was alone with his minor daughters, then ages one and two, on several occasions during his probation. The sexual acts that occurred when he was with his daughters resulted in his subsequent conviction for sexually assaulting minor children. Although Gomez denied the acts, he agreed that he told police they occurred, as reflected in his statement that the court admitted as a trial exhibit. Gomez stated that he had lied to the police because he was under the influence of drugs and alcohol and he was sleep deprived- everything was "like a blur" and he would just "say 'yes' or 'no' to questions so they could stop asking [him] questions." Gomez also acknowledged his conviction for these offenses.[1]

         3. The Experts' Testimony

         The State called expert forensic psychologist Stephen Thorne, Ph.D., as a witness. Gomez presented forensic psychologist and neuropsychologist Antoinette McGarrahan, Ph.D., to testify in his defense. Both witnesses examined Gomez prior to testifying.

         a. General Definitions and Methodologies

         Each expert provided the jury with the statutory definition of "behavioral abnormality" found in chapter 841 of the Texas Health and Safety Code. See id. Each expert presented similar understandings of the definition's various components. They agreed that the methodology employed when conducting behavioral abnormality evaluations includes reviewing records, conducting a personal interview, performing psychological and/or actuarial testing, and applying the relevant research to the specific case. The experts testified that the use of this methodology is the accepted standard in the field of forensic psychology.

         b. PCL-R-a Psychopathic Checklist

         Each expert utilized the PCL-R to determine whether Gomez met the criteria as a psychopath, as required by statute. See id. § 841.023(a). Dr. Thorne defined a "psychopath" as "somebody who's thought to be kind of an aggressive, violent narcosis, that they are very self-centered, that they use people to their advantage, that they don't have empathy or remorse towards other individuals, and that they're more likely to engage in wide-ranging antisocial and criminal acts."

         Dr. Thorne scored Gomez as a 23 on this test of twenty items, each rated at a zero, one, or two. He explained that a score of 23 out of a possible 40 placed Gomez "in the moderate range of psychopathic traits, " but not with a diagnosis of psychopath.[2]Dr. Thorne testified that Gomez exhibited the following traits: lack of remorse, elevated self-esteem, impulsiveness, an extensive history of lying, lack of responsibility, and inability to follow the terms of his mandatory supervision.

         According to Dr. McGarrahan, Gomez received her PCL-R score of 12, indicating that he has a low level of psychopathic characteristics. She explained that she found the following traits definitely present: lack of remorse or guilt, promiscuous sexual behavior, and behavior that resulted in the revocation of his probation. Dr. McGarrahan agreed that, like "[m]ost people, " Gomez had psychopathic characteristics. She agreed with Dr. Thorne that Gomez does not meet the criteria under the PCL-R to be diagnosed as a psychopath.

         c. Static-99R-Evaluation of Static Risk Factors

         The experts testified that each used the Static-99R. They explained that the Static-99R is an actuarial instrument that assesses someone's likelihood of engaging in a certain act in the future. Dr. McGarrahan stated that the Static-99R tests for "ten [static or unchanging] risk factors that go into sexual violence, engaging in sexual violence in the future." [3] According to Dr. Thorne, he used the Static-99R and its relevant, researched risk factors to assess Gomez's likelihood of committing a sexual offense in the future.

         Both experts scored Gomez a 5, which, according to Dr. Thorne, places him in the moderate-to-high risk range, and, according to Dr. McGarrahan, places him "in the moderate range of the higher end of moderate for engaging in a sexually violent offense in the future."[4] While Dr. McGarrahan believed the Static-99R accurately reflected Gomez's risk of reoffending, in her opinion, his score did not change whether or not Gomez suffers from a behavioral abnormality.[5] Each testifying expert reviewed his or her scoring sheet with the jury, explaining the scores and the reasons for them.[6]

         d. Other Risk Factors

         Both Drs. McGarrahan and Thorne agreed that Gomez has a history of sexual deviance, which, according to Dr. Thorne, is one of the biggest risk factors that increases somebody's risk of future sexual offending. But Dr. McGarrahan testified that she did not believe that Gomez "would engage in predatory acts of sexual violence" in the future because "the sexual offenses he has, in [her] opinion, are not predatory in nature."[7]

         In his assessment of other risks of sexual reoffending, Dr. Thorne testified that he diagnosed Gomez with pedophilic disorder.[8] Dr. McGarrahan testified that she did not arrive at such a diagnosis. And even if she had diagnosed Gomez with pedophilia, Dr. McGarrahan agreed that Gomez would still not be likely to engage in a predatory act of sexual violence because a person can suffer from pedophilic disorder and not suffer from a behavioral abnormality.

         Dr. Thorne also acknowledged that Gomez had previously been diagnosed with major depressive disorder. According to Dr. Thorne, Gomez had a history of depression, and a person can become so depressed that it affects their judgment. He explained that, according to the records, Gomez previously ...

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