in Re Commitment of Robert Beasley

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-00371-CV ____________________ IN RE COMMITMENT OF ROBERT BEASLEY On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 07-12-12533-CV MEMORANDUM OPINION The State filed a petition seeking an involuntary civil commitment of Robert Beasley as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp. 2009) (referred to as the "Act"). The jury found that Beasley was a sexually violent predator ("SVP"), and Beasley appeals from the trial court's final judgment and order of civil commitment. See Tex. Health & Safety Code Ann. § 841.003 (Vernon 2003). In four appellate issues, Beasley contends: 1) the evidence is legally insufficient to support the jury's verdict, 2) the evidence is factually insufficient to support the jury's verdict, 3) the trial court erred in denying his motion for directed verdict, and 4) the trial court erred in failing to submit an instruction that specifically placed the burden of proof on the State. After reviewing the trial testimony and the jury charge, we find that legally and factually sufficient evidence supports the jury's verdict. We further find that Beasley waived his complaint with respect to his motion for directed verdict, and we also hold the court's charge properly placed the burden of proof on the State. Therefore, we affirm the trial court's judgment. Legal Sufficiency The SVP statute defines "sexually violent predator" as a person who "(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). (1) As to the first requirement, Beasley admitted at trial that he had been previously convicted of two sexual assault offenses. As to the second prong, the State offered expert witness testimony to prove its elements. In issue one, Beasley argues the evidence is legally insufficient because the testimony of the State's two expert witnesses, Dr. Timothy Proctor and Dr. Michael Arambula, is speculative and conclusory, and because Dr. Proctor and Dr. Arambula, during trial, "both admitted that there was no evidence that [Beasley] has urges to engage in sexual acts with anyone other than his wife." Beasley does not contend that he objected to the foundational data of the State's two experts prior to their testifying before the jury. Instead, Beasley argues that analytic gaps in the experts' respective opinions, apparent on the face of the record, prevent a reviewing court from giving probative value to opinion-evidence of the State's expert witnesses. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-33 (Tex. 2004) . The Texas Supreme Court recently explained 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.,136 S.W.3d at 232). If there is no reliable basis offered for the expert's opinion, the opinion has no weight as probative evidence. Id. at 816-17. If the opinion has a supporting basis, but there is a reliability challenge that requires the court to evaluate the underlying methodology, technique, or foundational data, then an objection "must be timely made so that the trial court has the opportunity to conduct this analysis." Id. at 817 (quoting Coastal Transp. Co., 136 S.W.3d at 233). Much of Beasley's argument in issue one challenges the respective methodologies of the State's experts, but those objections were not made during trial. To the extent that Beasley's complaints concern the reliability of the opinions of the State's two experts, which he raises for the first time on appeal, his objections are not properly preserved. See id. However, to completely address Beasley's legal sufficiency challenge, we must also review the record, including the experts' methodologies, to determine if Beasley has demonstrated that analytical gaps in the opinions of Dr. Arambula and Dr. Proctor deprive their respective opinions of probative value. Chapter 841 of the Act requires the State to prove beyond a reasonable doubt that a person is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062(a) (Vernon 2003). Consequently, although this is a civil case, we review legal sufficiency issues on appeal by the criminal standard of review. In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App.-Beaumont 2007, no pet.); 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 to decide if a rational jury could have found beyond a reasonable doubt that Beasley suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See In re Commitment of Mullens, 92 S.W.3d at 887. Both of the State's experts explained the methodology they employed to arrive at their respective opinions. They examined records and an evaluation packet prepared by the sex offender treatment program. Both examined historical records regarding Beasley's offenses, and reviewed Beasley's prison disciplinary history. Dr. Proctor administered risk assessment instruments and actuarial tests, and Dr. Arambula also reviewed those tests. Additionally, each of the State's expert witnesses interviewed Beasley. Dr. Proctor, a forensic psychologist, performed two actuarial tests on Beasley. One was the "Static 99," which is used to measure the risk of sexual recidivism; the other was the "Minnesota Sex Offenders Screening Tool, Revised" (MnSOST-R), which is also used to predict the risk of future sexual offenses. Dr. Proctor scored Beasley with a "4" on the Static 99, which places Beasley in the "moderate high range of future risk." On the MnSOST-R, Dr. Proctor scored Beasley with a "6," which he explained places Beasley at a moderate risk of recidivism. Dr. Proctor diagnosed Beasley as having "pedophilia, attracted to females, nonexclusive" and as having an "antisocial personality disorder, including the presence of psychopathy." Dr. Proctor concluded that Beasley has a behavioral abnormality that predisposes him to engage in predatory acts of sexual violence. Dr. Arambula, a psychiatrist who is board certified in forensic psychiatry, diagnosed Beasley as having pedophilia and an antisocial personality disorder. He identified several factors that affected Beasley's chances of reoffending, including: 1) Beasley's underlying pedophilia and antisocial personality disorder, 2) his substance abuse, and 3) his pre-trial denial of having committed two prior sexual assault offenses. Dr. Arambula concluded that Beasley has a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence, and that Beasley was at risk of reoffending. Dr. Arambula also testified that pedophilia does not go away without treatment. Beasley's expert witness, Dr. Anna Shursen, followed a similar methodology in forming her own opinion about Beasley's risk of reoffending. Dr. Shursen is a licensed professional counselor and licensed sex offender treatment provider. In her evaluation of Beasley, Dr. Shursen used the same basic information and the same two actuarial assessment instruments that were used by the State's experts. Dr. Shursen's conclusions, however, differed from those reached by the State's experts. Dr. Shursen did not feel that Beasley met the criteria for a diagnosis of pedophilia because he had not "persistently sought out children"[;] thus, according to Dr. Shursen, Beasley is not a pedophile. Dr. Shursen scored Beasley with a "2" on the Static 99, which she said was a "moderate low" risk category. She gave Beasley a lower Static 99 score compared to Dr. Proctor because her opinion differed about Beasley's history of long-term relationships with women, and that difference allowed her to score Beasley differently on one part of the test. Additionally, she scored Beasley differently than Dr. Proctor because she discounted certain juvenile offenses because of lack of information. In contrast, Dr. Proctor had considered them in his evaluation. Dr. Shursen also tested Beasley on an MnSOST-R, and initially gave Beasley a score of "2" on that actuarial. After obtaining additional information about the ages of the two children that Beasley had sexually assaulted, Dr. Shursen changed Beasley's score to a "5." Based on a score of "5," Dr. Shursen described Beasley's risk of recidivism within the next six years as being "moderate and 45 percent." Ultimately, when asked about Beasley's risk of sexually reoffending, Dr. Shursen stated: "I think it's low." Although Dr. Shursen stated that she agreed that Beasley had an antisocial personality disorder, she concluded that Beasley did not have a behavioral abnormality that made him likely to engage in future predatory acts of sexual violence. After examining the methodologies employed by the various experts who offered opinions on Beasley's personality and risk of recidivism, the record demonstrates that all of the experts followed similar methodologies. Each expert reviewed the information in Beasley's prison records and interviewed him. All of the experts utilized, to some degree, information they obtained from Beasley's actuarial assessment tests. As a result, we conclude that all of the experts had support for their respective opinions, even though their opinions differed. While Beasley contends that the State's experts relied on "stale data" and failed to properly consider Beasley's claim that he no longer suffers from sexual fantasies involving children, the respective experts each possessed that information and considered and weighed it in forming their respective opinions. The fact that each may have weighed the information differently does not demonstrate that an analytic gap exists in an expert's testimony, nor does it render the evidence supporting the verdict to be without any probative value. In summary, Beasley's complaints actually address his concerns about the reliability of the respective expert's opinions, and consequently these complaints should have been presented to the trial court in a manner that would have allowed the trial court to address the foundational data used by the experts. Nevertheless, we conclude that from the evidence before it a rational jury could have found beyond a reasonable doubt that Beasley suffers from a behavioral abnormality that predisposes him to commit a predatory act of sexual violence. The evidence is therefore legally sufficient to support the jury's verdict. We overrule issue one. Factual Sufficiency Issue two contends the evidence is factually insufficient because Beasley reported to the State's experts that he has no "urges or fantasies about victimizing others by engaging in non-consensual sexual acts," and because the State's two experts' opinions - that Beasley has a behavioral abnormality - lacked probative value. With respect to a factual sufficiency review, we apply the factual sufficiency standard that is applied to criminal cases. In re Commitment of Gollihar, 224 S.W.3d at 846. In reviewing a criminal appeal for factual sufficiency, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say that the verdict is against the great weight and preponderance of the evidence or that the verdict is clearly wrong or manifestly unjust. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (citing Watson, 204 S.W.3d at 414-5). Beasley reasserts in issue two his argument that the expert testimony is conclusory and speculative and analytic gaps deprive the respective expert opinions of probative value. For the same reasons we have explained in issue one, we disagree. Reviewing the record in a neutral light, it demonstrates that in 1992, Beasley pled guilty to committing aggravated sexual assault against two different children; he did not participate in sex offender treatment while in prison; and he has been in prison for the vast majority of the time between 1989 and the date of trial. (2) Additionally, the record shows that a forensic psychologist interviewed Beasley in 2007. The forensic psychologist later diagnosed him as a pedophile and testified that Beasley has a behavioral abnormality that predisposes him to engage in predatory acts of sexual violence. In 2008, Beasley was also seen by a forensic psychiatrist, who expressed the opinion that Beasley is a pedophile, has an antisocial personality disorder, and has a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. While there is also evidence elicited from Beasley's expert that Beasley was not a pedophile, that issue was disputed. In this case, the opposing parties offered the jury competing opinions by experts in order to assist the jury in its resolution of whether Beasley suffered from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. In criminal cases, determinations about the credibility of each witness and about whether to believe or disbelieve any portion of a witness's testimony are left to the jury. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Generally, in resolving differences that exist between inferences raised by evidence in a trial, the jury is permitted to draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). When a jury is faced with conflicting testimony, we presume it resolved the conflict in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Similarly, in civil cases, a jury presented with conflicting evidence has several choices, including the following: It may believe one witness and disbelieve others. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952). It may resolve inconsistencies in the testimony of any witness. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). It may accept lay testimony over that of experts. Muro v. Houston Fire & Casualty Ins. Co., 329 S.W.2d 326 (Tex. Civ. App.-San Antonio 1959, writ ref'd n.r.e.). McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). "In a battle of competing experts, it is the sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony." Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.-Fort Worth 2005, pet. denied). In this case, in addition to expert opinions, the jury was also provided significant information about Beasley's past behavior. That information, although largely based on Beasley's limited period of freedom, exists independently from the expert's respective opinions and provides additional support for the jury's resolution of the disputed issues. Beasley also argues that the State's two experts admitted they had no evidence that Beasley currently has urges or fantasies about victimizing others by engaging in non-consensual sexual acts and he contends that these admissions create a factual sufficiency problem that undermines the jury's verdict. Our review of the record, however, does not show that the State's experts admitted that Beasley did not have inappropriate sexual fantasies; instead, the record simply shows that the State's experts both acknowledged Beasley's statement that he had very few sexual fantasies and that the ones he did have were related to his wife. Dr. Proctor expressed skepticism about Beasley's report regarding both the frequency and nature of his sexual fantasies. Although aware that Beasley reported he was not currently experiencing sexual fantasies with children, Dr. Arambula maintained that pedophilia does not go away without treatment and concluded that Beasley suffered from the condition as of the date of the trial. Therefore, we do not agree with Beasley that the State's experts admitted that Beasley's self-reported history established as a matter of fact that he no longer suffered from inappropriate sexual fantasies. In evaluating the credibility of Beasley's self-report about his thoughts, the experts could rely upon their own education and experience in patient populations diagnosed with similar problems; therefore, the expert witnesses are entitled to give no weight to Beasley's report about his current sexual fantasy experiences. Without citation to appropriate legal authorities, Beasley also complains that the opinions of the State's experts were not based upon a beyond-reasonable-doubt standard. Beasley then concludes that as a result, the State failed to meet its burden of proof. Without any substantive analysis to explain why the jury would be misled by the admission of expert witness testimony that employs a medical probability standard when the proper standard is stated in the jury charge, the argument is inadequately briefed. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (stating that error may be waived by inadequate briefing). Additionally, Beasley lodged no objection to the standard used by the experts when they expressed their respective opinions during the trial. Beasley's argument-that the State's experts used an improper proof standard-was both not preserved at trial and waived by the failure to adequately brief the argument on appeal. See Tex. R. App. P. 33.1(a)(1), 38.1(i). Having considered Beasley's arguments, and having reviewed the record in a neutral light, we conclude that the record is factually sufficient to support the jury's verdict. We hold that the jury's verdict is not against the great weight and preponderance of the evidence. Issue two is overruled. Ruling on Motion for Directed Verdict In issue three, Beasley argues that the trial court erred in denying his motion for directed verdict. However, in his reply brief, Beasley expressly waived his complaint about the error he asserts in issue three. Therefore, we do not consider it. Tex. R. App. P. 47.1. Charge Error In issue four, Beasley asserts that there was error in the jury charge because "the charge submitted [by the trial court] lacked sufficient information to apprise the jury that [the State] had the burden of proof on all issues in this case." Beasley notes that he requested an instruction that stated: "The State must prove all elements of this case beyond a reasonable doubt." The trial court marked Beasley's requested instructions as "refused." Nonetheless, the charge submitted by the trial court placed the burden on the State by stating the question as follows: "Do you find beyond a reasonable doubt that Robert Beasley suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence?" Thus, Beasley's complaint is that the charge is not sufficiently specific in the placement of the burden of proof. While Beasley acknowledges that the charge "stated" the burden of proof, he argues that the charge was nevertheless deficient because it did not contain any language "placing" the burden of proof on the State. The State points out that Beasley did not specifically object to the absence of the burden of proof instructions in the admonitory instructions of the charge. Based on Beasley's failure to object during the charge conference, the State asserts that Beasley waived any objection to the trial court's alleged failure to properly place the burden of proof on the State. We do not agree that Beasley did not properly preserve his complaint for our review. Rule 276 provides that a submitted instruction, marked by the trial court as having been "refused," requires us to conclusively presume on appeal that: the party asking the same presented it at the proper time, excepted to its refusal or modification, and that all the requirements of law have been observed, and such procedure shall entitle the party requesting the same to have the action of the trial judge thereon reviewed without preparing a formal bill of exceptions. Tex. R. Civ. P. 276. In this case, the record reflects that the trial court marked Beasley's proposed jury instructions as "refused." Therefore, Beasley benefits from a conclusive presumption that the variance between his proposed instructions and those in the charge submitted were timely and specifically brought to the trial court's attention. Id. We hold that Beasley's complaint concerning whether the charge properly placed the burden of proof on the State was sufficiently preserved for the purpose of allowing us to review it on appeal. See Galveston County Fair & Rodeo, Inc. v. Glover, 940 S.W.2d 585, 586-87 (Tex. 1996) (relying on separate written request that complied with Rule 273 to reach the conclusion that error had been preserved for appeal); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 n.5 (Tex. 1992) (op. on reh'g) (noting that a written request for an element of a claim in substantially correct form would preserve error for purposes of appeal). Therefore, we address Beasley's argument that the jury was not given proper guidance on placing the burden of proof on the State. With respect to placing the burden of proof, Rule 277 of the Texas Rules of Civil Procedure provides that "[t]he placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question." Tex. R. Civ. P. 277. Thus, the Rules of Civil Procedure contemplate that the jury can be instructed about applying the burden of proof in one of two ways: an admonitory instruction or by placement of the burden through the question. In this case, by the way the question was phrased for the jury, the charge placed the burden of proof on the State. An affirmative answer to the issue necessarily required the State to prove, beyond a reasonable doubt, that Beasley suffers from a behavioral abnormality. An affirmative answer to the question also required the jury to find that the evidence demonstrated, beyond a reasonable doubt, that the abnormality predisposed Beasley to engage in a predatory act of sexual violence. By submitting an issue that properly placed the burden on the party that bore it, the trial court acted consistently with the Rules of Civil Procedure. We hold that by wording the issue in the manner used in this jury charge, the trial court properly placed the burden of proof on the State. Having overruled each of the issues Beasley asserts in his appeal, we affirm the judgment and order of civil commitment. AFFIRMED. __________________________________ HOLLIS HORTON Justice Submitted on August 6, 2009 Opinion Delivered November 12, 2009 Before McKeithen, C.J., Kreger and Horton, JJ. 1. 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). 2. According to Beasley, he was not in prison for ten days in 1992.