Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 252nd District Court of Jefferson County,
Chief Justice Contreras and Justices Benavides and Hinojosa
LETICIA HINOJOSA JUSTICE.
Donald Wayne Hull appeals a final judgment following a jury
trial ordering his indefinite civil commitment as a sexually
violent predator. See Tex. Health & Safety Code
Ann. §§ 841.001-.151 (SVP Act). In four issues,
which we have reorganized, Hull contends that the evidence
was legally and factually insufficient (issues one and two),
and the trial court abused its discretion in allowing the
State's expert witness to discuss as "basis"
evidence that Hull committed a sexual assault as a juvenile
and in excluding evidence of his parole conditions (issues
three and four).
conclude that the trial court abused its discretion in
permitting the introduction of unreliable evidence to the
jury through the State's expert and that such error was
harmful. Therefore, we must reverse the trial court's
judgment and remand the case for a new trial on the
State's petition to commit Hull as a sexually violent
Sexually Violent Predator Laws
analysis is informed by the history and development of
sexually violent predator statutes in Texas and other states.
The Texas Legislature enacted the SVP Act based on
legislative findings that "a small but extremely
dangerous group of sexually violent predators exists 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 acts of sexual violence." Tex. Health &
Safety Code Ann. § 841.001. A survey of recent Texas
cases illustrates the Act's exclusiveness. See In re
Commitment of Williams, 539 S.W.3d 429, 433-34, 440
(Tex. App.-Houston [1st Dist.] 2017, no pet.) (offender had a
"very-well-ingrained pedophilia" including nine
sex-related convictions and sexual offenses against multiple
victims while employed as a teacher at a parochial school);
In re Commitment of Gomez, 535 S.W.3d 917, 919 (Tex.
App.-Corpus Christi-Edinburg 2017, no pet.) (offender was
convicted of five counts of aggravated sexual assault of his
girlfriend's twelve-year-old sister and his probation was
revoked because of sexual acts committed with his minor
daughters, aged one and two, on "several
occasions"); see In re Commitment of Cavazos,
No. 05-18-00894-CV, 2019 WL 2353446, at *5 (Tex. App.-Dallas
June 4, 2019, pet. filed) (mem. op.) (noting decades-long
history of sexual assault of minor males and admissions
concerning dozens of other child victims); In re
Commitment of Stonecipher, No. 14-18-00143-CV, 2019 WL
1119780, at *6 (Tex. App.-Houston [14th Dist.] Mar. 12, 2019,
no pet.) (mem. op.) (offender pleaded guilty to sexually
assaulting five young children and admitted that he
victimized three other children).
statute is modeled after those adopted in Washington in 1990
and later in Kansas, as evaluated in the Hendricks
decision of the United States Supreme Court. In re
Commitment of Stoddard, No. 02-17-00364-CV, 2019 WL
2292981, at *2 (Tex. App.- Fort Worth May 30, 2019, no pet.
h.) (mem. op. on reh'g); see Kansas v.
Hendricks, 521 U.S. 346 (1997). In 1990, Washington
passed the first sexually violent predator civil commitment
law in response to the case of Earl Kenneth Shriner.
Stoddard, 2019 WL 2292981, at *2 (citing Roxanna
Lieb, et al., Sexual Predators and Social Policy, 23
Crime & Just. 43, 55 (1998)). Shriner was a mentally
disabled offender with a decades long history of killing,
sexual assault, and kidnapping. Id. Washington
prison officials were unsuccessful in having Shriner civilly
committed after his prison sentence, despite discovering
Shriner's plans to torture children in the future.
Id. Two years after his release, Shriner kidnapped,
raped, strangled, and sexually mutilated a seven-year-old
boy. Id. In response to public outcry, Washington
passed its civil commitment statute intended to address a
"small but exceedingly dangerous" group of sexually
violent predators that were not amenable to already available
means for involuntary commitment. Id. (quoting Wash.
Rev. Code Ann. § 71.09.010).
later passed its own sexually violent predator statute, which
it modeled after Washington's statute. Id. Leroy
Hendricks, the first person to be committed under the
statute, challenged its constitutionality. See
Hendricks, 521 U.S. 346. In its decision upholding the
statute, the United States Supreme Court described
Hendricks's "chilling history" of repeated
child sexual molestation and abuse, which spanned over thirty
years and included several child victims. Id. at
354. Hendricks admitted in his civil commitment proceeding
that "he had repeatedly abused children whenever he was
not confined" and that "when he 'get[s]
stressed out,' he 'can't control the urge' to
molest children." Id. at 355. Hendricks agreed
that he suffered from a condition that could not be treated.
upholding Kansas's commitment statute, the Court
underscored the constitutional importance of distinguishing a
dangerous sexual offender subject to civil commitment from
other dangerous persons who are perhaps more properly dealt
with exclusively through criminal proceedings. Id.
at 360. In a later decision, the Court stressed that due
process requires "proof of serious difficulty in
controlling behavior." Kansas v. Crane, 534
U.S. 407, 413 (2002). The Court explained that this proof
"must be sufficient to distinguish the dangerous sexual
offender whose serious mental illness, abnormality, or
disorder subjects him to civil commitment from the dangerous
but typical recidivist convicted in an ordinary criminal
explained by our sister court, our review in SVP commitment
cases must necessarily be informed by these constitutional
That Chapter 841 applies only to a member of a small group of
extremely dangerous sex offenders is a necessary component of
Chapter 841 precisely because it provides the constitutional
mooring without which Chapter 841 might not withstand a
constitutional challenge. In considering the
constitutionality of the current generation of sexually
violent predator civil commitment laws, the United States
Supreme Court upheld the civil restraint on liberty precisely
because the statute in question was limited to "narrow
circumstances" and "a limited subclass of dangerous
persons." Hendricks, 521 U.S. at 357 . . . .
Indeed, without such limitation, a serious question would
arise whether Chapter 841 could pass constitutional muster.
Stoddard, 2019 WL 2292981, at *12. Failing to
consider these restrictions "risks ripping Chapter 841
from its constitutional foundation, thus opening the door to
civil commitments of sex offenders based solely on their
predicate sex offenses." Id.
warrant Hull's civil commitment as a sexually violent
predator, and to distinguish Hull from the "dangerous
but typical recidivist convicted in an ordinary criminal
case," Crane, 534 U.S. at 413, the State was
required to prove two prongs beyond a reasonable doubt: (1)
that Hull is a "repeat sexually violent offender"
and (2) that Hull suffers from a "behavioral abnormality
that makes [him] likely to engage in a predatory act of
sexual violence." Tex. Health & Safety Code Ann.
§§ 841.003(a), 841.062(a).
Prior Convictions and Imprisonment
State presented evidence that Hull pleaded guilty and was
convicted of the following sexually violent offenses: (1) a
1977 conviction for aggravated kidnapping with the intent to
violate and abuse the victim sexually, see Tex.
Penal Code Ann. § 20.04; and (2) two 2001 convictions
for indecency with a child. See id. § 21.11. On
the basis of these convictions, the trial court granted the
State a directed verdict that Hull is a repeat sexually
violent offender. See Tex. Health & Safety Code
Ann. § 841.003(b).
was released from prison in 1984 after serving seven years
for the first conviction. He was arrested fifteen years
later, when he committed the offenses forming the basis for
his 2001 convictions. Hull spent sixteen years in prison for
the 2001 convictions when the parole panel ordered his
release at the age of sixty. All told, Hull has served
twenty-three years in prison for his crimes. In ordering
Hull's release, the parole panel necessarily determined
that Hull "is able and willing to fulfill the
obligations of a law-abiding citizen" and that his
release is in the "best interest of society."
See Tex. Gov't Code Ann. § 508.141(e)(2),
(f). Anticipating Hull's release, the State's Special
Prosecution Unit-Civil Division filed a petition seeking to
commit Hull indefinitely as a sexually violent predator.
State and Hull both presented expert opinion testimony
regarding whether Hull suffered from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual
violence. The State's expert, Darrel B. Turner, Ph.D.,
concluded that Hull suffered from such a condition.
Hull's expert, Marisa R. Mauro, Psy.D., concluded
critical difference in their testimony was the extent to
which Drs. Turner and Mauro relied on a prisoner "travel
card" notation indicating that Hull committed a sexual
assault as a juvenile. Dr. Mauro described the travel card as
a summary of an inmate's criminal history written by a
prison employee. Without any available juvenile records to
confirm the offense, Dr. Mauro determined that the
information was unreliable and placed little emphasis on the
allegation. On the other hand, Dr. Turner believed that the
offense was "quite relevant" to his analysis and
mentioned it extensively throughout his testimony. The trial
court overruled Hull's objections to testimony
referencing the travel card evidence.
Turner, a clinical psychologist, was retained by the Texas
Department of Criminal Justice to assess whether Hull
suffered from a behavioral abnormality as that term is
defined in the SVP Act. Dr. Turner reviewed Hull's
conviction records, offense reports, investigative
narratives, deposition testimony, and inmate records. He also
interviewed Hull for approximately two hours. Dr. Turner
concluded that Hull suffered from a behavioral abnormality.
Turner testified regarding the details of Hull's prior
sexual misconduct which he gleaned from his interview with
Hull and his review of Hull's criminal and prison
records. He first described Hull having committed a sexual
offense at the age of fifteen. Dr. Turner referenced the alleged
juvenile offense throughout his testimony as indicative of
Hull's lifelong pattern of committing sexual offenses.
Dr. Turner noted that the offense was "quite
relevant" to his risk assessment, explaining: "So,
what we know is that at an early age he was willing to
violate someone else to satisfy his own sexual urges. He was
punished for that and then went on to re-offend, actually
Turner then noted that Hull committed an aggravated
kidnapping at the age of twenty, for which he was convicted
and imprisoned. During his interview with Dr. Turner, Hull
stated that he was driving a vehicle when his passenger
jumped out of the car, grabbed a girl off her bicycle, and
pulled her into the backseat. Hull claimed he became
"scared," drove off, and told the passenger to
stop. Hull claimed that the victim testified on his behalf.
to Dr. Turner, Hull's version of the events was
inconsistent with what was detailed in Hull's criminal
records. Those records indicated that Hull devised a plan
with his co-defendant to abduct a girl from Lamar University
in Beaumont, Texas. Hull, who was driving, stopped the
vehicle, while his co-defendant grabbed a girl from her
bicycle and forced her into the backseat. Hull drove away,
but the victim ultimately escaped. According to Dr. Turner,
Hull's co-defendant indicated that "their initial
intent was to take [the victim] to a secluded area and take
turns raping her." Dr. Turner believed that Hull's
minimization of his involvement indicated a lack of remorse
for his actions and empathy for the victim. He also believed
that by abducting a stranger, Hull showed a significantly
higher risk "to re-offend than people who offend against
people that they do know or even within their family."
Dr. Turner found Hull's commission of the offense in the
daylight in a residential area to be evidence of Hull's
"level of antisociality and impulsivity and behavioral
control to do something like that and run a higher risk of
getting caught. . . ."
Turner testified that while Hull was in prison for the
aggravated kidnapping conviction, he received four
disciplinary infractions for sexual conduct with other
inmates. First, according to Dr. Turner, Hull received a
disciplinary infraction for threatening an inmate who refused
his sexual advances. Hull received a second disciplinary
infraction for engaging in a consensual sexual act with
another inmate. His third infraction resulted from his
soliciting sex from another inmate in exchange for
protection. The fourth incident involved Hull having
consensual sex with other inmates.
Turner then discussed the details of the offenses involving
the sexual abuse of two minor children which resulted in
Hull's 2001 convictions. Hull committed the offenses
fifteen years after Hull's release from prison. According
to Dr. Turner, a twelve-year-old child claimed Hull touched
her vagina underneath her underwear, and she reported the
incident immediately. After the twelve-year-old reported that
incident, another child reported that Hull had been sexually
abusing her by "rubbing her breast, rubbing her vagina,
exposing his penis, asking her if she liked it-as well as
offering her money or ice cream or pickles and things like
Turner stated that Hull denied any criminal conduct, instead
claiming that "he slipped on some water . . . . he
reached out to stop himself; and that's when he
accidently touched her vagina." Hull "denied
offending against them, and he said that they were very
starved for affection from their caregiver; so, he would hug
them a lot . . . Dr. Turner found that Hull's denials
were important because it impacts Hull's ability to
progress in treatment and shows a lack of remorse.
Turner stated that after Hull was charged with the offenses
against the two children, Hull called the victims'
families and threatened to kill them for reporting the
offenses. Dr. Turner explained this showed Hull's
"antisociality, which is one of the two big risk
Turner also considered Hull's history of substance abuse
in his assessment, testifying that although Hull admitted to
using "street drugs" such as "speed,"
Quaaludes, and "Mollies" in the seventies, which in
Dr. Turner's opinion was not "that remarkable of a
history," "there was evidence in the records that
he had also previously admitted to . . . use of
cocaine," and Hull's drug use "then started to
look problematic" to Dr. Turner "because it was
becoming more severe and prevalent and because he was
dishonest about it at some point." Dr. Turner explained
that Hull's substance abuse was indicative of
Turner opined that Hull was a sexual deviant which he
described as a risk factor that "refers to some kind of
[sexual] interest that is beyond or outside of two . . .
consenting adults." Dr. Turner also believed that Hull
met the criteria for pedophilic disorder because he sexually
abused a child younger than thirteen years of age for a
period of at least six months. In addition, Dr. Turner
diagnosed Hull with antisocial personality disorder, which he
stated is a lifelong condition.
Turner explained the risk associated with an individual who
has an antisocial personality disorder and is also a sexual
What we have is, when the two big risk factors exist
together, when we have a sexually deviant interest or
interests, in this case, and we have that fuel of that
antisocial personality that allows a person to act on it and
we see that they have repeatedly done that across decades
after being punished several times, that's when those two
really, really increase a person's risk level.
evaluation, Dr. Turner used the "psychopathy
checklist-revised" (PCL-R), "an instrument
that's designed to measure to what degree a person is a
psychopath." Dr. Turner scored Hull "on 20 items
that have been shown through research to be present in people
with this personality construct." He explained that the
PCL-R was not designed to predict whether a person would
re-offend, but it is a solid risk assessment tool. Dr.
Turner's score for Hull was twenty-nine, which is beyond
the cutoff for a psychopath finding of twenty-five.
Turner also used a Static-99R instrument, which he described
as a tool to score various risk factors. He scored Hull a 2
on this instrument, indicating that Hull presented an average
risk to reoffend when compared to other sex offenders.