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In re Commitment of Brown

Court of Appeals of Texas, Fifth District, Dallas

February 20, 2018

IN RE: THE COMMITMENT OF JOHNNY DOYLE BROWN

         On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 94099-86

          Before Justices Lang-Miers, Fillmore, and Stoddart

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         In this civil commitment proceeding, the State of Texas petitioned to have Johnny Doyle Brown declared a sexually violent predator (SVP) under the Civil Commitment of Sexually Violent Predators Act (the Act). See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2017). After the jury found beyond a reasonable doubt that Brown is an SVP, the trial court rendered judgment on the jury's verdict, and ordered that Brown be civilly committed for sex offender treatment and supervision. In three issues, Brown contends the evidence is legally and factually insufficient to support a finding he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, and the trial court erred by admitting evidence of an unadjudicated sexual offense and of Brown's "rape fantasies." We affirm the trial court's judgment.

         Background

         In November 2015, the State filed a petition alleging that Brown is an SVP, and requested he be committed for treatment and supervision. In the presence of the jury, the State read into the record Brown's responses to the State's request for admissions, which included admissions he had pleaded guilty to two offenses of sexual assault; the indictment for the second offense alleged the victim was under the age of seventeen; the victim of the second assault was A.H.; A.H. was a stranger to him; he believed A.H. initiated sexual contact with him; he had received "disciplinaries" in prison for attempting to establish an inappropriate relationship with staff; he knew it was wrong to sexually offend against his victims, but did it anyway; he was a recovering alcoholic, but did not believe he had a problem with alcohol abuse; he had used marijuana, "acid, " "speed, " powder and crack cocaine, and heroin, but did not believe he had a problem with drug abuse; and he did not believe he needed substance abuse treatment.

         Brown testified that, at the time of trial, he was serving a fifteen-year prison sentence for sexual assault, and he had previously been incarcerated for the sexual assault of L.M.[1] As to the first conviction, Brown testified he met L.M. in early May 1995 at the tire shop where he was employed. L.M. returned to the tire shop on May 17, 1995, left her two children in the car, and came into the shop. Brown, who was under the influence of marijuana, shut and locked the door to the shop. L.M. expressed concern at Brown's actions because her two children were in the car. Brown told L.M. to watch her children through the window and began kissing her. He pulled down L.M.'s shorts and panties and his own pants. Although L.M. told Brown to stop, he did not do so; rather, he pushed L.M. against the tire rack and stuck his finger into her vagina. Brown denied at trial that he attempted to penetrate L.M.'s vagina with his penis, but admitted he had testified during his deposition that he tried multiple times to penetrate L.M.'s vagina with his penis. At the time he committed the offense, Brown was romantically involved with a woman he later married.

         Brown recalled being interviewed by Dr. Steven Thorne about the offense, but did not remember what he said during that interview. He did not deny, however, that he told Dr. Thorne that L.M. wanted to buy drugs from him. He also did not deny he told Dr. Thorne that L.M. grabbed his crotch and told him she wanted to have sex with him, but he refused her advances.

         Brown pleaded guilty to sexually assaulting L.M., and was placed on community supervision for a period of five years. Brown did not successfully complete the probation, and his community supervision was revoked for not paying the required fines, completing community service, or attending counseling sessions. Brown testified he participated in sex offender treatment, but "didn't learn nothing." He admitted, however, that records indicated he was terminated from the treatment program for failing to attend nine sessions. On March 4, 1997, Brown was sentenced to two years' imprisonment.

         While he was incarcerated, Brown participated in the Changes program, which he believed helped him. Brown stated he learned how "to keep his pants zipped up, " watch how he approached people, pay attention to his surroundings, and always have an alibi. Brown was released from prison in December 1998.

         On July 5, 2002, after using heroin, cocaine, and "acid" and drinking whiskey, Brown went to A.H.'s house and asked if he could mow the grass. Brown ran out of string for the weed eater, and asked A.H.'s mother to buy him some more. He told A.H.'s mother he was leaving to check on another job. However, rather than leaving the house when A.H.'s mother left, he went into the house and found A.H., who was then fourteen-years-old, in the restroom. Although Brown denied at trial that he walked up behind A.H. and pulled down her shorts and panties, he admitted that, during his deposition, he testified he removed A.H.s shorts and panties. A.H. tried to resist Brown, but he pulled his pants down. Brown denied at trial that he forced his penis into A.H.'s vagina, but admitted he had testified during his deposition that he had done so. Brown was married at the time he committed the offense. Brown pleaded guilty to sexually assaulting A.H., and was sentenced to fifteen years' imprisonment on October 30, 2002.

         Brown was interviewed about the offense by Dr. Thorne and Dr. Marisa Mauro. Brown testified he did not remember telling Dr. Thorne and Dr. Mauro that A.H. tried to seduce him. He admitted, however, that during his deposition and in a sex offender education program, he stated with regard to the offense that "it takes two to tango." Brown admitted that, when he was deposed approximately five months before trial, he believed A.H. "came onto to him, " but had since realized A.H. had not done so.

         During his second incarceration, Brown requested to participate in an anger management class, but was dropped from the class due to his failure to attend. He completed a Cognitive Intervention class in 2010, in which he learned that his actions were responsible for him being in prison. Brown testified he was ashamed of his crimes.

         Brown was circumcised in prison in 2005. He testified that, following the procedure, his "sex drive went away, " and it had been years since he thought about sex. Regardless, he requested in 2009 to be castrated, but ultimately decided not to pursue castration. Brown admitted he received "disciplinaries" in prison for breaking the rules, two of which were received in 2013 for attempting to establish an inappropriate relationship with a correctional officer. Although Brown admitted he continued to make inappropriate comments to the officer after being told not to do so, he denied saying to the officer that he "wanted to grab a handful of her ass, " and did not recall telling the officer she "needed a man to take care of her."

         According to Brown, he was arrested for the first time when he was twelve years' old and, in total, had been arrested approximately twenty times in his life. The offenses for which he had been arrested included theft, burglary of a building, assault of his brother, providing alcohol to a minor, and public intoxication.

         Brown began drinking alcohol and using marijuana when he was twelve years' old, and began using cocaine, "acid, " and "speed" when he was fifteen years' old. He used all these substances until he was incarcerated for the first time. Although he did not use drugs or alcohol during his first incarceration, he began using these substances again after he was released. Brown had not used drugs or alcohol during his second incarceration, but was willing to participate in drug and alcohol treatment. Brown believed that, if he had been sober, he would not have committed the offenses against L.M. and A.H.

         Brown testified he began having "rape fantasies" when he was eighteen or twenty-one years' old. He also admitted he was investigated in 1988 for committing a sexual offense against a three-year-old boy. Brown initially denied touching the boy, and stated he was never charged with an offense. However, he then admitted he pulled the boy's penis so hard there were abrasions on it, and that his actions probably affected the boy "very bad." Brown confirmed he was also investigated for sexually abusing his stepson, but denied any abuse had occurred.

         According to Brown, he was taking responsibility for what he had done wrong. Further, he believed he had changed and was not a risk to reoffend. After he was released from prison, he intended to control his sexual urges by going to work, keeping to himself, hanging around positive people, and not having friends who were negative. He testified he had victimized "two people so far, " and was confused when he previously testified he had four victims.

         Brown was evaluated by both Dr. Thorne, who was retained by the State, and Dr. Mauro, who was retained by Brown. Both experts are licensed psychologists who specialize in forensic psychology and have extensive experience in evaluating individuals for a behavioral abnormality under the Act. Dr. Thorne has performed evaluations at the request of both the State and defendants, while Dr. Mauro has performed evaluations exclusively for defendants.

         Dr. Thorne and Dr. Mauro both used a clinically-adjusted actuarial approach in their evaluation of Brown. This methodology is in accordance with accepted standards in forensic psychology, and is followed by other experts who do these types of evaluations. The evaluation involves reviewing available records relating to Brown and interviewing Brown, and using that information to look for certain traits or characteristics that research has shown might increase or decrease Brown's risk for future sexual violence.

         Both Dr. Thorne and Dr. Mauro agreed Brown had low intellectual functioning. Dr. Thorne believed that Brown understood all the questions asked during their interview, but conceded Brown did not always answer the questions consistently and did not testify consistently at trial. According to Dr. Thorne, it was possible Brown was inconsistent because he was not being truthful and, due to his mental capacity, was unable "to remain firm on a decision."

         Dr. Mauro, however, believed Brown had difficulty understanding the questions asked during their interview. She attributed this difficulty to Brown's low intellectual ability and verbal comprehension problems. Brown gave contradictory information during the interview, and did not seem to appreciate that he was providing contradictory information. Dr. Mauro, therefore, believed the written records about the underlying offenses and the 1988 unadjudicated offense were more reliable than Brown's statements regarding the offenses

         Dr. Thorne and Dr. Mauro relied on the Diagnostic and Statistical Manual (DSM) for mental disorders in evaluating Brown. They both utilized the Static-99R, a list of ten risk factors used to score whether someone has a behavioral abnormality, and the Psychopathy Checklist Revised (PCLR), which is an assessment of whether the individual meets ...


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