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In re Commitment of Ausbie

Court of Appeals of Texas, Fourteenth District

August 6, 2019

IN RE COMMITMENT OF CEDRIC AUSBIE

          On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1302213-0101Z

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          Meagan Hassan Justice

         In this appeal from a final judgment and an order of civil commitment, a trial court found Cedric Ausbie is a sexually violent predator as defined in the Texas Health and Safety Code and subject to civil commitment. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (Vernon 2017 & Supp. 2018). On appeal, Ausbie contends the evidence is legally and factually insufficient to "support a beyond-a-reasonable-doubt finding that Mr. Ausbie has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence." We affirm.

         Background

         I. The Texas Civil Commitment of Sexually Violent Predators Act

         The Texas Civil Commitment of Sexually Violent Predators Act (SVP Act) provides for the civil commitment of sexually violent predators 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 actions of sexual violence." Tex. Health & Safety Code Ann. § 841.001. The Legislature expressly found that "a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state." Id.

         Under the SVP Act, a person is a sexually violent predator if the person (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). Before the State files suit, a person must be administratively determined to be a sexually violent predator. Id. §§ 841.021-.023; In re Commitment of Bohannan, 388 S.W.3d 296, 298 (Tex. 2012). When the administrative determination is made, notice is given to an attorney representing the State. Tex. Health & Safety Code Ann. § 841.023.

         Once the person is referred to the State, an attorney representing the State may file a civil commitment proceeding in the court of conviction for the person's most recent sexually violent offense. Id. § 841.041(a). If a judge or jury determines that the person is a sexually violent predator, the trial court must commit the person for treatment and supervision to begin on the date of release from prison and to continue "until the person's behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence." See id. § 841.081(a).

         II. Ausbie's Trial

         The State filed a petition alleging Ausbie is a sexually violent predator and requesting that he be committed for treatment and supervision. The case was tried in a bench trial in October 2017.

         The State presented pen packets which showed Ausbie's convictions for two sexual offenses. Ausbie sexually assaulted a 16-year-old girl in 2004. Ausbie pleaded guilty to the offense of sexual assault of a child and was sentenced to two years' confinement. He was released in 2007. In 2011, he was charged with indecency with a child; the victim was a nine-year-old boy. He pleaded guilty and was sentenced to seven years' confinement in 2013.

         The State presented two experts, who performed a clinical assessment of Ausbie, to testify concerning their opinion about whether Ausbie suffers from a behavioral abnormality: Dr. Sheri Gaines, a board-certified psychiatrist, and Dr. Timothy Proctor, a board-certified forensic psychologist.

         Proctor testified he has been conducting evaluations with regard to behavioral abnormality for ten years and has conducted approximately 70 evaluations. Proctor relied on principles of forensic psychology in his evaluation of Ausbie and testified it was his opinion "Ausbie has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence." To form his opinion, Proctor stated he reviewed "the standard types of records in these cases," including police reports, victim statements, court documents, judgments, pen packets, "prison records that deal with summaries of him in his history, his behavior in prison, medical and psychiatric treatment in prison"; interviewed Ausbie face-to-face; scored the Static-99R instrument, which is an actuarial test; and reviewed the deposition of Gaines, the deposition of psychologist Dr. Bauer, who conducted a multidisciplinary report and concluded Ausbie has a behavioral abnormality, the deposition of psychologist Dr. Mauro, who was asked to evaluate Ausbie's competency and concluded he was incompetent to testify at the commitment trial and also has a psychotic disorder which significantly impairs him, and the deposition of Ausbie which provided a "continued look" into his psychotic state.

         Proctor explained that the records he reviewed are typically reviewed by experts to form an opinion if a person has a behavioral abnormality. He explained he relied on the data in these records because, in order to determine if Ausbie has a behavioral abnormality, Proctor has to know Ausbie's history, behavior, problems, and prior sexual offenses. Proctor testified that "[m]any of the commonly used risk factors in the research are based on the person's history and past. So, in understanding the person right now, it's important that we look back."

         Proctor testified he met Ausbie in person at the Skyview unit in March 2017 but was unable to conduct a typical interview in length or scope because of Ausbie's level of impairment and severe mental illness. Proctor could not communicate with Ausbie and did not consider Ausbie at any point during the interview to be competent. Despite Ausbie's inability to communicate with Proctor, Proctor explained the interview was very important because he could observe "how impaired [Ausbie] is and how impaired his thinking is and his behavior is." Ausbie did not understand why Proctor was there and was "very distracted by things going on in his head"; it was difficult for Proctor to get Ausbie to respond to any questions and Ausbie got "a little bit agitated." Proctor diagnosed Ausbie with "a severe mental disorder called schizoaffective disorder that's a type of schizophrenia." Proctor stated that "a major driver in [Ausbie's] likelihood of committing predatory acts of sexual violence is his very disorganized thinking . . . and he has serious difficulty in controlling his behavior. So, witnessing that firsthand was important and added to my evaluation."

         Proctor testified he was unable to score Ausbie under the typical psychopathy checklist called P.C.L.R. because the instrument score is based in part on self-reporting and Ausbie could not provide any information because of his severe mental impairment. Although Proctor was unable to score the psychopathy checklist, he was able to determine that Ausbie's behavioral abnormality is "not driven by psychopathy or him being a psychopath." Proctor stated Ausbie has antisocial traits and a psychotic disorder but psychopathy is not "what's driving his sexual acting out behavior or what is driving this" behavioral abnormality.

         Further, Proctor stated that, although "diagnoses" are not "required to find [Ausbie] has a behavioral abnormality," he diagnosed Ausbie with schizoaffective disorder and borderline intellectual functioning. According to Proctor, schizoaffective disorder relates to a finding of behavioral abnormality because the disorder impacts Ausbie's "ability to control his behavior and emotionally manage . . . his behavior. And in particular it deals with how his sexual deviancy comes out in his ability to control sexual deviant thoughts and urges." Proctor stated Ausbie's borderline intellectual functioning contributes to finding Ausbie has a behavioral abnormality because "this mental functioning . . . disinhibits him, impacts his decision making choices, emotional functioning, and then leads to the sexual deviancy manifesting itself."

         With regard to the antisocial traits cluster of risk factors, Proctor testified he considered Ausbie's psychotic disorder and unstable relationship history. He also considered Ausbie's nonsexual criminal history as an antisocial lifestyle. Proctor testified Ausbie was charged with aggravated assault with a deadly weapon when he was 17 years old. A few months later, Ausbie was charged with aggravated assault causing bodily injury for which he received and completed probation in December 2002. In 2003, Ausbie "was detained and taken to the psychiatric hospital after he jumped out in front of a car and was refusing to get off the car, even when the car started moving." In 2004, "there was a possession of marijuana charge he got some jail time for. Also a criminal trespass with some jail time in [20]04." Ausbie was also charged with public intoxication and criminal mischief before being charged with the 2004 sexual assault of a child and serving a prison sentence until 2011.

         With regard to the sexual deviance risk factor, Proctor characterized Ausbie's sexual offenses as sexually deviant because "[o]ne, there's force in both of his sexual offense convictions. Additionally, his second victim was a prepubescent child" which "suggests the ...


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