in Re Commitment of Kenneth Fields

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-09-00005-CV ____________________ IN RE COMMITMENT OF KENNETH FIELDS On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 08-03-02387 CV MEMORANDUM OPINION A jury determined that Kenneth Fields is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.003 (Vernon 2003). Fields appeals from the trial court's judgment and order of civil commitment. He raises three issues. In 1979, Fields used a knife to abduct a woman; he threatened to kill her, struck her, and raped her twice on the same day. Fields testified that a few weeks later he threatened two other women with a knife and abducted them. He explained he did not sexually assault them, because the car he was driving was involved in an accident, and a DPS officer arrived at the scene. In 1979, he used a knife to abduct a woman from an apartment complex, threatened to kill her, and raped her. He was convicted and sent to prison. Fields acknowledged that in 1985, seven months after he was released from prison, he sexually assaulted another woman; that assault went undetected. A few weeks later he used a pellet gun to abduct a sixteen-year-old girl and her boyfriend off the seawall in Galveston. Fields ordered the male out of the car, took the female to a secluded location, and sexually assaulted her. Fields's mandatory supervision was revoked, and he was sent back to prison. Released on mandatory supervision in 2000, he violated the terms of the supervision within four months and was again returned to prison. The record reveals Fields acknowledged multiple sexual assaults. In issue one, Fields argues the trial court, the Ninth Court of Appeals, and the Texas Supreme Court denied him effective assistance of counsel and violated his due process rights, because State Counsel for Offenders ("SCFO") was not allowed to withdraw as his counsel. The SCFO attempted to withdraw as counsel both at trial and on appeal. We previously rejected similar complaints by Fields in two mandamus proceedings that he filed with this Court; we see no reason to revisit those decisions. See In re Fields, No. 09-09-00202-CV, 2009 WL 2045219 (Tex. App.-- Beaumont July 16, 2009, orig. proceeding); In re Fields, 256 S.W.3d 859 (Tex. App.-- Beaumont 2008, orig. proceeding). Issue one is overruled. In issue two, Fields argues the evidence is legally insufficient to support the jury's finding that he suffers from a behavioral abnormality, as defined in section 841.002(2) of the Act. The Act defines "behavioral abnormality" as "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." Tex. Health & Safety Code Ann. § 841.002(2) (Vernon Supp. 2009). Although this is a civil case, we consider legal sufficiency issues under the standard of review for criminal cases because of the burden of proof in this case. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.--Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We review the evidence, in the light most favorable to the verdict, to determine if a rational jury could have found beyond a reasonable doubt that Fields suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. at 885, 887. Fields essentially argues that the State's experts' testimony did not provide a basis for their opinions, and there is no probative evidence to support the jury's finding of a behavioral abnormality. Consequently, Fields argues he did not have to object to the State's experts' testimony at trial. The Texas Supreme Court has held that "conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony." City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (citing Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)). "Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence." Id. Nevertheless, if the expert's opinion has a supporting basis, but there is a reliability challenge to the basis which requires the trial court to evaluate the underlying methodology, an objection "'must be timely made so that the trial court has the opportunity to conduct this analysis.'" Pollock, 284 S.W.3d. at 817 (quoting Coastal Transp. Co., 136 S.W.3d at 233). In considering whether the State's evidence amounts to "bare, baseless opinions," we review the entire record -- focusing on the experts' testimony. Three experts testified: Dr. Proctor and Dr. Clayton for the State and Dr. Shursen for the defendant. The record reveals the State's experts employed essentially the same bases and methodology, which they described as being relied on by other experts in their fields. Dr. Shursen relied on similar, if not the same, information and administered the same assessment tests to Fields as Dr. Proctor. Each expert interviewed Fields prior to formulating an opinion. Dr. Proctor, a forensic psychologist, explained how he arrived at his opinion that Fields suffers from a behavioral abnormality. After obtaining the available records on Fields, Proctor reviewed Fields's history, his past offenses, victims' statements, police descriptions, prison records, summaries regarding the time spent in prison, and prison medical records. Proctor also interviewed Fields. Using the DSM-IV, a book used by mental health professionals to diagnose psychological conditions, Dr. Proctor diagnosed Fields with antisocial personality disorder, sexual abuse of an adult, sexual abuse of a child, and sexual sadism. Proctor explained Fields was sexually gratified by causing physical or psychological pain or humiliation to another person. Proctor also testified that Fields was stimulated by causing fear in another person and that he has an inability to control anger. Proctor further explained that Fields has a "very ingrained pattern of committing a similar type of sex offense, a rape, with similar type of victim, force, weapon, repeatedly that persisted even when imprisoned once before and even when on mandatory supervision." Other negative factors included the fact that Fields had no stable adult relationships, and his history revealed adolescent anti-social behavior, a history of substance abuse, physical abuse in his relationships, anger, and a lack of empathy. In addition to reviewing the records, Proctor administered three tests to Fields: the Hare Psychopathy Checklist, the Static-99, and the Minnesota Sex Offender Screening Tool-Revised (MnSOST). Based on Fields's responses on the Hare test, Proctor concluded Fields was not a psychopath. On the Static 99 and the MnSOST (risk assessment instruments), Dr. Proctor scored Fields's risk for future sex offending as high. The high scores were based on Fields's use of a weapon during the offenses, his threats-to-kill the victims, use of force and violence, commission of multiple sex acts on the same victim, ejaculation inside the victim, and sexual assaults on victims who were both non-relatives and strangers. In reviewing Fields's records, Proctor testified he found certain positive factors in the records. Fields was attending a sex offender treatment program; he obtained a college degree while incarcerated; he had mainly avoided violence and fighting while in prison; he took full responsibility for his actions; he had a positive relationship with his mother and sister; he expressed remorse and empathy, albeit only recently; and he was older (age 48). Dr. Proctor considered the positive factors to be relatively "small and weak" compared to the risk factors. Based on his review of Fields's records, the interview, the DSM-IV, and tests administered to Fields, Dr. Proctor testified Fields has a behavioral abnormality. Dr. Clayton, a forensic psychiatrist, testified she interviewed Fields and reviewed a packet of information on him. She testified the records were those typically relied on by experts in the field for this type of evaluation. Clayton testified she conducted a psychiatric evaluation of Fields and concluded he suffers from a behavioral abnormality. Clayton diagnosed Fields with antisocial personality and concluded he is a sexual sadist. She also characterized him as a serial rapist. Clayton explained that antisocial personality does not go away. In arriving at her opinion, Dr. Clayton testified she gave a lot of weight to Fields's having used force in each of the offenses and having offended again after he was released on mandatory supervision. Clayton concluded there was "progression" in Fields's offenses -- he began his sexual assaults in 1979 with a knife, and moved to a gun with the later offenses. Once he began the series of rapes in 1979, he was aggressive and bold and "raping or attempting to rape on a regular basis, despite fearing apprehension." The rapes became more violent and threatening. Clayton explained that Fields's behavioral abnormality is primarily a sexual sadism, but the antisocial personality makes him more criminally dangerous. She also testified that in her interview of Fields he minimized the effects of his conduct on the victims and minimized "how difficult it will be [for him to control his conduct] on the outside." In her interview with Fields and her review of the records, Dr. Clayton observed some of the same positive factors in Fields as Dr. Proctor found, but the positive factors did not alter her conclusion that Fields is a "viable serial rapist who is going to have urges when he gets out to rape women . . . -- it's going to be very difficult for him to control." Dr. Clayton testified Fields has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. Dr. Shursen, a licensed professional counselor and a licensed sex offender treatment provider, testified for the defendant. She emphasized the importance of a person's capacity for change and advocated a "synergistic" approach where many factors are considered. She administered the Hare Psychopathy Checklist. Fields's score indicated he is not a psychopath. Dr. Shursen also administered two risk assessment instruments: the Static-99 and the MnSOST. Based on the Static-99 results, Shursen concluded Fields was at high risk for reoffending. On the MnSOST, Dr. Shursen scored Fields as a moderate risk. She acknowledged Fields had past behavioral problems and occasional drug use; he never successfully completed mandatory supervision; he wanted to subjugate his victims; he sought to humiliate his victims; he committed sexual offenses in the past; and his offenses were predatory. Dr. Shursen testified that the Static-99 actuarial assesses only historical data and does not assess change in an individual. The MnSOST has one component that considers "dynamic factors" or change, including what has happened while the person has been incarcerated or on parole. Dr. Shursen concluded that while Fields was in prison, he changed. He earned a college degree in psychology. He worked on trying to ascertain the reasons for his behavior. Dr. Shursen found Fields was remorseful and took responsibility for what he had done. At the time of trial, he was participating in a sex offender treatment program, and Shursen believed he had benefitted from it. Dr. Shursen explained that family support is an important factor in assessing the risk of reoffending, and Fields had a good relationship with his mother and sister. Based on her belief that Fields had changed, Dr. Shursen concluded that Fields does not suffer from a behavioral abnormality. Fields argues essentially that the lack of a written report to support the experts' behavioral-abnormality conclusion means there is no underlying methodology, data, or technique. He also argues the experts did not provide the trial court with foundational data or scientific theory explaining why the details of crimes committed in 1979 and 1985 will support the experts' conclusions at trial that Fields suffers from a behavioral abnormality. During trial, Fields did not object to the experts' testimony on reliability grounds. To the extent he is challenging reliability, he has waived that complaint. See Tex. R. App. P 33.1. We address Fields's challenge as a claim that there is too great an analytical gap between the data and the opinion proffered. See In re Commitment of Martinez, No. 09-05-493 CV, 2006 WL 2439752, at *3 (Tex. App.--Beaumont Aug. 24, 2006, no pet) (mem. op.); In re Estate of Robinson, 140 S.W.3d 782, 792 (Tex. App.--Corpus Christi 2004, pet. denied). The packet of information reviewed by Proctor and Clayton on Fields, their interviews of Fields, the use of risk assessment instruments, Clayton's psychiatric evaluation of Fields, and the use of the DSM all provide a basis for the State's experts' conclusion that Fields suffers from a behavioral abnormality. They explained in detail the risk factors that make him likely to engage in a predatory act of sexual violence. The opinions they expressed had a reliable basis in the record, and their testimony was probative to establish beyond a reasonable doubt that Fields has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Their testimony was not conclusory or speculative. We see no analytical gap. The jury determines the credibility of the witnesses and the weight to be given their testimony. In re Commitment of Mullens, 92 S.W.3d at 887. Conflicts and contradictions in the evidence are resolved by the jury; all, part, or none of a witness's testimony may be believed by the jury. Id. (citing Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)). The jury may draw reasonable inferences from the evidence. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). We conclude the evidence was legally sufficient to support the jury's verdict. Issue two is overruled. In issue three, Fields contends the trial court "displayed such bias and prejudice against Fields and his counsel that a fair trial was impossible." Fields submits ten instances where he asserts the trial court displayed bias or apparent bias. In Dow Chemical Company v. Francis, 46 S.W.3d 237, 240 (Tex. 2001), the Texas Supreme Court considered whether the trial judge's comments in that case constituted bias as a matter of law. The Court relied on Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), which held that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion[.]" Francis, 46 S.W.3d at 240 (quoting Liteky, 510 U.S. at 555). Liteky further stated that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky, 510 U.S. at 555. "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. Based on our review of the allegedly improper comments in the context of the entire record, it does not appear that Fields was denied a fair trial. Unless the comment or conduct could not have been rendered harmless by an instruction, a party waives appellate review when he fails to object and request an instruction attempting to cure any curable error. Francis, 46 S.W.3d at 241 (citing State v. Wilemon, 393 S.W.2d 816, 818 (Tex. 1965)); In re Commitment of Barbee, 192 S.W.3d 835, 847-48 (Tex. App.--Beaumont 2006, no pet.). We do not find error that would, in the absence of an objection, require reversal and remand of this case. See Tex. App. P. 33.1. Issue three is overruled. We affirm the judgment and order of civil commitment. AFFIRMED. _________________________________ DAVID GAULTNEY Justice Submitted on November 18, 2009 Opinion Delivered December 17, 2009 Before Gaultney, Kreger, and Horton, JJ.