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In re Commitment of Hull

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 18, 2019


          On appeal from the 252nd District Court of Jefferson County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Hinojosa



         Appellant Donald Wayne Hull appeals a final judgment following a jury trial ordering his indefinite civil commitment as a sexually violent predator.[1] 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).

         We 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 predator.

         I. Sexually Violent Predator Laws

         Our 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was convicted of five counts of aggravated sexual assault of his girlfriend's twelve-year-old sister and his probation was revoked because of sexual acts committed with his minor daughters, aged one and two, on "several occasions"); see In re Commitment of Cavazos, No. 05-18-00894-CV, 2019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).

         Texas's 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).

         Kansas 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. Id.

         In 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 case." Id.

         As explained by our sister court, our review in SVP commitment cases must necessarily be informed by these constitutional restrictions:

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.

         To 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).

         II. Background

         A. Prior Convictions and Imprisonment

         The 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).

         Hull 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.

         B. Expert Testimony

         The 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 otherwise.

         A 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.

         1. Dr. Turner

         Dr. 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.

         Dr. 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.[2] 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 multiple times."

         Dr. 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.

         According 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. . . ."

         Dr. 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.

         Dr. 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 that."

         Dr. 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.

         Dr. 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 factors."

         Dr. 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 antisociality.

         Dr. 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.

         Dr. Turner explained the risk associated with an individual who has an antisocial personality disorder and is also a sexual deviant:

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.

         In his 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.

         Dr. 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.

         2. ...

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