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In re Commitment of Gray

Court of Appeals of Texas, Third District, Austin

February 16, 2018

In re Commitment of David Gray


          Before Chief Justice Rose, Justices Field and Bourland


          Cindy Olson Bourland, Justice

         In 1997, appellant David Gray was convicted of two counts of indecency with a child under 17 years old by sexual contact and one count of aggravated sexual assault of a child under 14 years old. He was sentenced to 20 years in prison. In 2015, the State of Texas filed a petition to civilly commit Gray as a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code § 841.041 (requirements for petition alleging predator status). A jury found that Gray is a sexually violent predator, and the trial court rendered a final judgment and order of civil commitment accordingly. See id. §§ 841.062(b) (jury determination that person is predator), .081(a) (order on civil commitment of predator). On appeal, Gray challenges the legal and factual sufficiency of the evidence to support the jury's verdict. We will affirm the judgment of the trial court.


         In two issues, Gray claims that the evidence is legally and factually insufficient to support the jury's finding that he is a sexually violent predator. Specifically, he contends that the testimony of Dr. Darrel Turner, the State's sole expert witness, was conclusory and speculative and thus constituted no evidence that Gray is a sexually violent predator.

         I. Applicable law

         A sexually violent predator is 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. Id. § 841.003(a). 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). The State must prove beyond a reasonable doubt that the person it seeks to civilly commit is a sexually violent predator. Id. § 841.062.

         When reviewing a legal-sufficiency challenge to the evidence in a sexually-violent-predator case, a reviewing court assesses all of the evidence in the light most favorable to the verdict to determine whether a rational jury could find, beyond a reasonable doubt, each of the elements that the State must prove to support a judgment of civil commitment. 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)). When reviewing factual-sufficiency challenges to the evidence in sexually-violent-predator cases, a reviewing court weighs the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that requires ordering a new trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.-Beaumont 2011, pet. denied). That risk is "essentially slight" when (1) the burden of proof is beyond a reasonable doubt and (2) the evidence is determined to be legally sufficient to support the jury's conclusion that the defendant is a sexually violent predator. Id. However, "if in the view of the appellate court after weighing the evidence, the risk of an injustice remains too great to allow the verdict to stand, the appellate court may grant the defendant a new trial." Id.

         A judgment may not be supported by conclusory testimony even if a party did not object to the admission of such testimony. City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). Expert testimony is conclusory if the witness does not provide an explanation of or factual basis for his opinions. Bustamante v. Ponte, 529 S.W.3d 447, 462 (Tex. 2017). If no basis for the opinion is offered, or the basis offered provides no support, the opinion is not probative evidence, regardless of whether the complaining party objected at trial. Id. Testimony regarding such an opinion amounts to no evidence because it does not tend to make the existence of a material fact more probable or less probable. Pollock, 284 S.W.3d at 816; see Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008) (holding that expert testimony is conclusory if the expert merely gives an unexplained conclusion or asks the jury to "take my word for it" because of the expert's status as an expert).

         II. Application

         Gray argues that Dr. Turner's testimony that Gray suffers a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence is conclusory because, Gray contends, it is not supported by the bases Dr. Turner cited in support of his conclusions.[1]

         Dr. Turner, a licensed forensic psychologist, was the State's sole expert witness. He testified regarding his education, training, experience, and methodology.[2] He explained that, in determining that Gray suffers from a behavioral abnormality, he relied upon "thousands of pages of records, " including Gray's sexual and nonsexual criminal history, offense reports, witness statements, victim statements, sentencing documents, medical records, prison records, and depositions of Gray and Gray's expert witness, Dr. Stephen Thorne. He also conducted a two-hour interview with Gray and administered various psychological testing on Gray "in accordance with [his] training as a forensic psychologist."

         Dr. Turner testified extensively regarding risk factors for sexually reoffending. According to Dr. Turner, a risk factor is a variable that increases the likelihood that the person will sexually reoffend beyond the "average sex offender or more so than the sex offender that does not have that variable present." The two primary risk factors that Dr. ...

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