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In re Commitment of Jurischk

Court of Appeals of Texas, Third District, Austin

May 31, 2019

In re Commitment of Todd Matthew Jurischk

          FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. C2017-1744A, THE HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          Chari L. Kelly, Justice

         In this civil commitment proceeding, the State petitioned to have appellant, Todd Matthew Jurischk, declared a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code §§ 841.001-.151 (the Act). After a jury found beyond a reasonable doubt that Jurischk was a sexually violent predator as defined in the Act, the trial court rendered a final judgment and entered an order of civil commitment. In four issues, Jurischk argues that (1) there is legally and factually insufficient evidence to support a finding that he is a sexually violent predator, (2) the trial court erred by admitting hearsay evidence of a nontestifying expert witness, and (3) the trial court gave the jury a coercive "Allen charge." Allen v. United States, 164 U.S. 492 (1896). We will affirm the trial court's judgment and order of civil commitment.

         BACKGROUND

         In May 2006, Jurischk pleaded guilty to one count of indecency with a child by contact, see Tex. Penal Code § 21.11(a)(1), one count of sexual assault of a child, see id. § 22.011(a)(2), and two counts of sexual assault, see id. § 22.011(a)(1). The court assessed Jurischk's punishment at 15 years' confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ) with respect to each of the charged offenses and ordered the sentences to run concurrently.

         Before Jurischk was scheduled to be released from TDCJ, the State filed a petition in Comal County district court to civilly commit Jurischk as a sexually violent predator under the Act, alleging that he was a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code § 841.003(a). The trial court determined that Jurischk was indigent and appointed him counsel. Four witnesses testified at the jury trial: Dr. Stephen Thorne, the State's expert witness; Jurischk; Jurischk's father; and Jurischk's mother. The jury found that Jurischk 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).

         DISCUSSION

         Legal and factual sufficiency challenges

         In his second and third issues, Jurischk 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. Stephen Thorne, the State's sole expert witness, was conclusory and speculative and thus constituted no evidence that Jurischk is a sexually violent predator.

         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 "behavioral 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.

         Proceedings pursuant to the Act are civil in nature, but because the State's burden of proof at trial is the same as in a criminal case, we review verdicts in cases brought under the Act using the standard of review applied in criminal cases. In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.-Houston [1st Dist.] 2015, pet. denied); In re Commitment of Wirtz, 451 S.W.3d 462, 464 (Tex. App.-Houston [14th Dist.] 2014, no pet.). When reviewing a legal-sufficiency challenge to the evidence in a sexually violent predator case, we assess 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); see Wirtz, 451 S.W.3d at 464-65 (noting that while factual sufficiency review has been abolished in criminal cases in which State's burden is beyond reasonable doubt, courts have continued to perform factual sufficiency review in sexually violent predator cases, and declining to decide whether factual sufficiency review remains available in those proceedings because evidence in case at issue was legally and factually sufficient). The risk of an injustice 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 finding that the defendant is a sexually violent predator. In re Commitment of Gray, No. 03-16-00662-CV, 2018 WL 911863, at *1 (Tex. App.-Austin Feb. 16, 2018, no pet.) (mem. op.) (citing Day, 342 S.W.3d at 213). 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 a 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 if the basis offered provides no support, the opinion does not constitute probative evidence. 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 expert merely gives unexplained conclusion or asks jury to "take my word for it" because of expert's status).

         Jurischk argues that Dr. Thorne's testimony that Jurischk suffers a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence is conclusory because, Jurischk contends, "Dr. Thorne's opinion is based on data that does not support his conclusion." According to Jurischk, this alleged failing renders Dr. Thorne's opinion a "subjective interpretation" that is "too dependent" on "subjective guesswork." We disagree.

         Dr. Thorne testified as an expert forensic psychologist. Dr. Thorne stated that he had examined Jurischk before testifying and that his evaluation was based on principles of forensic psychology. Dr. Thorne provided the jury with the statutory definition of "behavioral abnormality" found in chapter 841 of the Texas Health and Safety Code. He stated that the methodology he employs when conducting behavioral abnormality evaluations is a "clinically adjusted actuarial approach" and is the methodology followed by experts in the field of forensic pathology. This approach includes reviewing prison records and offense reports, conducting a personal interview, performing psychological and actuarial testing, and applying the relevant research to the specific case. Dr. Thorne testified that after completing the evaluation, his opinion was that Jurischk has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.

         After having testified regarding his opinion, Dr. Thorne testified at length about the basis for that opinion. First, Dr. Thorne noted that he does not believe that all sex offenders have a behavioral abnormality that makes them likely to engage in predatory acts of sexual violence. However, Dr. Thorne's diagnostic tools indicated to him that Jurischk is not a "typical sex offender." Dr. Thorne testified about the risk assessment he performed in order to determine the likelihood that Jurischk would commit some type of offense in the future. This assessment included considering both risk factors and protective factors. Dr. Thorne identified the two main risk factors for reoffending as (1) antisocial orientation or criminal predisposition and (2) sexual deviancy. According to Dr. Thorne, antisocial orientation is "the tendency to violate the rights of others or to break with the rules and expectations of society." Dr. Thorne testified that Jurischk exhibited these tendencies by shoplifting at an early age, having numerous arrests, engaging in other violent and antisocial behavior that did not result in arrests, ...


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