Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 144th District Court of Bexar County, Texas.
Justices Benavides, Longoria, and Perkes
L. LONGORIA JUSTICE
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.
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
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.
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.
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."
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.
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."
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.
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.
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.
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.
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
[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.
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