Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 397th Judicial District Court Grayson County,
Texas Trial Court Cause No. CV-17-1405
Justices Myers, Molberg, and Carlyle
Devon Joiner appeals the trial court's judgment finding
Joiner is a sexually violent predator and civilly committing
him pursuant to the Civil Commitment of Sexually Violent
Predators Act. See Tex. Health & Safety Code
Ann. §§ 841.001-.153. Joiner brings two issues on
appeal contending the evidence is legally and factually
insufficient to support the jury's finding beyond a
reasonable doubt that he is a sexually violent predator. We
affirm the trial court's judgment.
Joiner was eight or nine years old, he was exposed to
pornography depicting rape. Joiner later explained to an
evaluator that since that time, "his life has been
dominated by masturbating to fantasies of aggravated sexual
assault." In 1979, when Joiner was nineteen or twenty
years old and living in Arkansas, he had a fantasy of
kidnapping a woman, raping her, and brainwashing her to have
her fall in love with him. He decided to carry out that
fantasy. He leased an office space, ostensibly for a
motorcycle shop, contacted an employment agency to hire a
secretary, and he bought some paint and material to make a
sign. On Friday, he went to the employment agency and hired
the first woman he interviewed. On Saturday, he called her
and told her to come into work the next day. On Sunday, when
she came to the office, Joiner assigned her the task of
making a sign. As she was making the sign, Joiner grabbed and
tied her up.
took the woman into the woods where he raped her. Joiner held
her captive for three days, keeping her tied up and raping
her repeatedly. He then let her go. He was arrested soon
after. Joiner pleaded guilty in Arkansas to kidnapping and
rape and was sentenced to five years' imprisonment.
Joiner was released on parole after nine or ten months.
being paroled, Joiner moved to Texas and eventually to
Grayson County. Joiner married and had two children. Ten
years after the first offense, Joiner put on a mask and broke
into his neighbors' house while the husband was away at
work and the wife was home caring for her child. Joiner
threatened to kill the child unless the woman cooperated.
Joiner grabbed her by the hair and forced her into some
nearby woods where he raped her. He let her go and went home
and waited to be arrested. Joiner pleaded guilty to sexual
assault-enhanced and was sentenced to thirty years' in
prison. Joiner came up for parole twelve times, and parole
was denied every time. During his incarceration, Joiner has
had no communication or support from his former wives, his
children, or his siblings.
mandatory release date was in April 2019. In 2017, the State
filed a petition seeking a declaration that Joiner was a
sexually violent predator and an order committing him for
treatment and supervision. A jury found beyond a reasonable
doubt that Joiner was a sexually violent predator. The trial
court signed a judgment civilly committing him.
suit to commit a person as a sexually violent predator, the
State must prove beyond a reasonable doubt that the person
(i) is a "repeat sexually violent offender" and
(ii) "suffers from a behavioral abnormality that makes
the person likely to engage in a predatory act of sexual
violence." Tex. Health & Safety Code §§
841.003(a), 841.062(a); see also id. §
841.002(8) (defining "sexually violent offense").
person is a repeat sexually violent offender if he has been
convicted of more than one sexually violent offense and a
sentence was imposed for at least one of the offenses.
Id. § 841.003(b).
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).
predatory act is "an act directed toward individuals,
including family members, for the primary purpose of
victimization." Id. § 841.002(5).
these cases, we use the criminal test for legal sufficiency.
In re Commitment of Brown, No. 05-16-01178-CV, 2018
WL 947904, at *8 (Tex. App.-Dallas Feb. 20, 2018, no pet.)
(mem. op.). Thus, we review the evidence in the light most
favorable to the verdict to determine whether any rational
factfinder could have found the required elements beyond a
reasonable doubt. Id. It is the factfinder's
responsibility to resolve conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from basic to
ultimate facts. Id.
factual-sufficiency review has been abandoned in criminal
cases, as an intermediate appellate court with final
authority over factual-sufficiency challenges in civil cases,
we will perform a factual-sufficiency review in Chapter 841
cases when the issue is raised on appeal. Id. In our
factual-sufficiency review, we consider whether the verdict,
though supported by legally sufficient evidence, nevertheless
reflects a risk of injustice that compels a new trial.
Id. We view all the evidence in a neutral light and
determine whether the jury was rationally justified in
finding the required elements beyond a reasonable doubt.
Id. We reverse only if the risk of an injustice is
too great to allow the verdict to stand. Id. The
jury is the sole judge of the witnesses' credibility and
the weight to be given their testimony. Id. at *9.
The jury may resolve conflicts in the evidence and believe
all, part, or none of any witness's testimony.
Id. We may not substitute our judgment for the
SUFFICIENCY OF THE EVIDENCE
first issue, Joiner contends the evidence is legally
insufficient to support the jury's finding beyond a
reasonable doubt that he is a sexually violent predator.
Joiner does not dispute that he is a repeat sexually violent
offender. Instead, he asserts the State's expert
witnesses presented no evidence that Joiner suffers from a
behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence.
State presented the testimony of Dr. Sherri Gaines, a
licensed psychiatrist, and Dr. Darrell Turner, a licensed
psychologist. Dr. Turner has performed about 150 or 160
behavioral abnormality examinations, and Dr. Gaines has
performed 130 behavioral abnormality examinations. Both
doctors examined Joiner, and they concluded he suffers from a
behavioral abnormality that predisposes him to engage in
predatory acts of sexual violence.
argues the doctors' testimony amounts to no evidence
because it was conclusory or speculative. Opinion testimony
that is wholly conclusory or speculative amounts to no
evidence "because it does not tend to make the existence
of a material fact 'more probable or less
probable.'" In re Commitment of H.L.T., 549
S.W.3d 656, 661-62 (Tex. App.-Waco 2017, pet. denied)
(quoting City of San Antonio v. Pollock, 284 S.W.3d
809, 816 (Tex. 2009)). Thus, "[b]are, baseless opinions
will not support a judgment even if there is no objection to
their admission in evidence." Id. at 662
(quoting Pollock, 284 S.W.3d at 816). "When a
scientific opinion is admitted in evidence without objection,
it may be considered probative evidence even if the basis for
the opinion is unreliable." Id. (quoting
Pollock, 284 S.W.3d at 818). "But if no basis
for the opinion is offered, or the basis offered provides no
support, the opinion is merely a conclusory statement and
cannot be considered probative evidence, regardless of
whether there is no objection." Id. (quoting
Pollock, 284 S.W.3d at 818).
did not object that Turner's and Gaines's opinions
were unreliable during trial. Therefore, to prevail on his
legal sufficiency claim, he must show in his appeal that the
evidence offers no basis to support their opinions.
Id. (citing Pollock, 284 S.W.3d at 817;
In re Commitment of Barbee, 192 S.W.3d 835, 843
(Tex. App.-Beaumont 2006, no pet.)).
doctors testified at length about how they each reached the
conclusion that Joiner had a behavioral abnormality that made
him likely to engage in a predatory act of sexual violence.
They described the risk factors that made it more likely that
Joiner would reoffend following his release, and they
discussed the positive factors that went against his being a
sexually violent predator.
Gaines and Dr. Turner testified they examined Joiner and
concluded he has behavioral abnormalities that make him more
likely to engage in a predatory act of sexual violence. They
both testified he has an antisocial personality disorder.
Besides the sexual offenses, other evidence of Joiner's
antisocial personality disorder included his criminal
behavior from a young age (he stole a pair of boots when he
was eight, stole a car when he was sixteen, and stole gas
when he was eighteen), the fact that he ran away from home
and hitchhiked across the country at age thirteen, and his
unstable employment history, including his inability to
complete his Marine Corps service. Joiner was also diagnosed
with antisocial personality disorder by the prison doctors.
Additionally, both doctors testified he has sexual deviancy,
which Dr. Gaines diagnosed as unspecified paraphilic disorder
and Dr. Turner diagnosed as sexual sadism.
Gaines testified that Joiner's antisocial personality
disorder and sexual deviance were the two major risk factors
for his reoffending sexually. The combination of antisocial
personality disorder and sexual deviancy "is a dangerous
combination, and from my knowledge, something that makes
someone likely to reoffend, depending on the other things
about that person." Dr. Turner testified that "when
there's a sexually deviant interest and there's a
degree of antisociality, it acts as a fuel that allows them
to act on that sexually deviant interest and victimize other
people because they're so antisocial that they're
okay with doing that."
Dr. Gaines and Dr. Turner testified to Joiner's
minimization of his offenses. In describing the first offense
to the doctors and in his testimony at trial, Joiner
testified that the first sex he had with the victim was
nonconsensual, but that the sex they had after that over the
next three days was consensual and sometimes initiated by the
victim. The doctors testified Joiner's description of
this offense fit his fantasy of brainwashing the victim to
have her fall in love with him. Dr. Gaines testified
Joiner's description of the offense was "entirely
implausible"; Dr. Turner testified it was Joiner's
"actual fantasy" and his "sexually deviant
belief." They testified Joiner also minimized the second
offense. In that offense, he grabbed the victim's hair at
the back of her head and forced her out of the house. When
Joiner testified about the offense at trial, he minimized his
actions by stating, "I placed my hand behind her hair,
like this, and I led her down the hallway through the living
room out the back door." Dr. Gaines testified that
Joiner's version of the events shows he is unaware of the
harm he caused the victims, and Dr. Turner testified it
demonstrated his antisocial personality disorder.
doctors testified Joiner's lack of sex-offender treatment
was a risk factor for his reoffending. Dr. Gaines testified
that sexual deviancy is a chronic condition that lasts a
person's lifetime. There is no medication for sexual
The treatment for deviant sex is sex offender treatment.
There's very specific sex offender treatment to focus on
sexual deviance. This is cognitive behavioral treatment
usually. So it helps the person examine their thoughts, helps
the person examine triggers, helps the person examine cycles,
helps the ...