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In re Commitment of White

Court of Appeals of Texas, Fourteenth District

January 9, 2018


         On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 811575-Z

          Panel consists of Justices Busby, Wise, and Yates. [2]


          Ken Wise, Justice.

         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."[1] In Dr. Dunham's opinion, White suffers from such a behavioral abnormality.

         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 ...

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