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In re Commitment of Driggers

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

December 12, 2019


          On appeal from the 144th District Court of Bexar County, Texas.

          Before Justices Benavides, Longoria, and Perkes



         After a jury found appellant Randall Mark Driggers to be a sexually violent predator (SVP), the trial court civilly committed Driggers for sex-offender treatment and supervision. See Tex. Health & Safety Code Ann. § 841.001. By three issues, Driggers argues that the evidence was legally and factually insufficient to support the trial court's finding that he is a sexually violent predator (issues one and two, respectively), and that the trial court erred by refusing to include a jury instruction on the possibility of a non-unanimous verdict in his favor (issue three). We affirm.

         I. Background[1]

         In 2018, Driggers was incarcerated in the Texas Department of Criminal Justice- Institutional Division (TDCJID) when the State filed its petition requesting Driggers be civilly committed for treatment and supervision because of his alleged status as a sexually violent predator. At the time, Driggers was pending entry into the TDCJID sex offender treatment program.

         On November 27, 2018, trial on Driggers's civil commitment began. The State's sole witness was Jason Dunham, a forensic psychologist. He was retained by the State to evaluate Driggers and opine as to whether Driggers displayed a behavioral abnormality that warranted civil commitment. See id. According to Dunham, he begins his evaluation process by reviewing the records and documents pertaining to the individual in question. He then personally interviews the person, performs some psychological testing, identifies both risk factors and protective factors regarding the individual's likelihood in committing future predatory sexual offenses, and then comes to a final opinion.

         According to the records and criminal history that Dunham reviewed, in 1980, Driggers was arrested for voluntary manslaughter in Georgia when he was about eighteen years old. At the time, Driggers was dating a girl one or two years younger than him but her mother forbade the relationship. The mother was found dead, strangled, beaten, and scratched, face down in an empty bath tub. Driggers was not originally suspected, but his girlfriend began to "put the pieces together" and started becoming suspicious of Driggers. According to the girlfriend, several months after her mom was found dead, Driggers picked his girlfriend up from school and forced her to have sex with him; she claimed that Driggers had a gun and threatened to kill both her and himself. Later, Driggers was arrested when he was attempting to take her across the state line to South Carolina. His girlfriend had been leaving "please help me" notes written on toilet paper in gas station bathrooms; she even told one attendant that she needed help. Driggers was not convicted of any sexual crimes against the girlfriend, but he was sentenced to fifteen years in prison for voluntary manslaughter.

         When Dunham asked Driggers about this conviction during a personal interview, Driggers claimed he approached the mother hoping to discuss his relationship with her daughter. However, according to Driggers, she had a metal splint on her finger, which he allegedly mistook for a knife. As a result, he reflexively punched her in the throat and killed her. Dunham testified that Driggers's statements are completely inconsistent with what the record reflected: a strong suggestion of a "struggle and that she was-she died by strangulation." Even though the adjudicated offense was a nonsexual crime, Dunham testified that it was relevant to finding Driggers to be a sexual predator because this shows the "beginning of the pattern of behavior for him." According to Dunham, Driggers admitted to killing the mother but "[w]hat he doesn't admit to is more what I believe is the planning behavior and the struggle it involves. So, it wasn't just an impulsive throat punch, which is what he was leading me to believe."

         Dunham testified that while Driggers was in prison, he was convicted of attempting to escape from prison. Driggers was later released on parole, but his parole was revoked for breaking curfew. Driggers was fully discharged in 1989.

         Dunham then testified regarding two sexual assaults Driggers committed a few years after being released. The first offense occurred in June 1991 when Driggers was about twenty-nine years old. Driggers and his new wife moved to Texas because she had family in Texas. While his wife was out of town, Driggers convinced Kari, a friend of his wife, to come to the house he was staying in to pick up a gift he had for Kari's boyfriend. According to Kari, when she arrived, Driggers asked her to close her eyes. She refused to close her eyes, but when she entered the home, Driggers bear hugged her and dragged her to the floor, telling her, "I've always wanted you and I wondered what you looked like with your shirt off." He then forced her clothes off, removed his own clothing, and straddled her naked, threatening to beat her unconscious if she would not perform oral sex on him. He also threatened to kill her if she would not stop crying. Kari claimed that he also brandished a knife and forcefully had vaginal intercourse with her. Driggers told Kari to call work and tell them she had a flat tire that day and additionally instructed Kari not to say anything to anyone about what happened because "I will be behind you with a knife."

         Dunham asked Driggers about this incident in the personal interview. According to Driggers, Kari had been flirting with him and they had consensual sex. She changed her mind while they were having sex, so he ejaculated onto her.

         Dunham testified that Driggers was arrested for sexually assaulting Kari and that Driggers's father-in-law posted bond. Just one month after sexually assaulting Kari, and while still on bond, Driggers sexually assaulted his mother-in-law. According to the record Dunham reviewed, Driggers visited her at about 10:00 in the morning while she was alone and forced her "to masturbate him and give him oral sex at gunpoint." The mother-in-law claimed that he pulled the trigger to shoot her but "the shot didn't fire[, ] and he started laughing." He then apologized and took the bullets out of the gun.

          When Dunham asked Driggers about this incident, Driggers admitted to the forced sex but denied using a gun or making any threats; he asserted he was merely returning a gun he had borrowed from his father-in-law. Driggers also told various people that he and his mother-in-law were having an extended affair at the time.

         Concerning these two offenses, Driggers pleaded guilty to aggravated sexual assault and sexual assault. See Tex. Penal Code Ann. §§ 22.011, 22.021. He was sentenced to forty years in prison, each to run concurrently.

         Dunham testified concerning several risk factors he observed while reviewing Driggers's convictions. Concerning the manslaughter conviction, the following conversation occurred:

[State]: So-and specifically referencing that voluntary manslaughter, what risk factors, if anything, did you pull from that from Mr. Driggers?
[Dunham]: It was-it was a violent act. It was-I believe that it was planned. I believe that it had to do-I believe it was completely callous. I believe it had to do with [the mother] not wanting them to have a relationship and a planned-planned attack on her.
Another risk factor is that he is 18 years old, so at a young age at the first violent offense. And then sort of what happens afterwards is-is-is part of this, that he stayed with his girlfriend even after killing her mother and not letting anybody know and then continued to date. That-to me, that's-that's callous behavior. It's psychopathic behavior.
[State]: Why would that be callous or psychopathic behavior?
[Dunham]: It's almost-to me, it's-it's as if nothing happened. I believe they even went to like church that night after he did that to- to her mom and she had no idea, you know, what was going on. So, I mean, I think it takes a person-a pretty psychopathic person to be able to do something like that.

         Concerning the sexual assault against Kari, Dunham noted several risk factors: (1) the amount of planning involved; (2) manipulation; (3) committing a sex offense while married; (4) committing a sex offense within two years after being released from prison; (5) using a knife, indicating a continuing pattern of violent behavior; (6) committing the offense against a victim unrelated to himself because "people who offend outside the family are generally considered higher risk than those who stay within the ...

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