Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 86th Judicial District Court Kaufman County,
Texas Trial Court Cause No. 94099-86
Justices Lang-Miers, Fillmore, and Stoddart
M. FILLMORE JUSTICE
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.
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.
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
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.
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.
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
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
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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."
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
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 ...