in Re Commitment of Douglas Johnson

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-00489-CV ____________________ IN RE COMMITMENT OF DOUGLAS JOHNSON On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 08-01-00791-CV MEMORANDUM OPINION Douglas Johnson appeals the judgment and order of civil commitment as a sexually violent predator pursuant to a jury's verdict that Johnson suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. In three issues, Johnson contends (1) the evidence is legally insufficient to support the jury's verdict; (2) the failure to present competent legally sufficient evidence to support the verdict deprived Johnson of his liberty without due process of law; and (3) the evidence is factually insufficient to support the jury's verdict. We affirm the judgment of the trial court. In his first issue, Johnson contends the expert testimony presented by the State was speculative and conclusive on its face and thus no evidence upon which the jury could base its verdict that Johnson suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. The State contends Johnson failed to preserve the issue for appellate review. Johnson moved for directed verdict when the State rested. The trial court overruled the motion. Johnson then presented his own expert witness. Johnson rested without renewing his motion for directed verdict. He did not object to submitting a question to the jury on the grounds that the evidence did not support submission. Johnson did not file a motion for judgment notwithstanding the verdict. He did file a motion for new trial after the trial court signed the judgment. Johnson's motion for new trial urged that the trial court erred by holding Johnson committed a sexually violent act when the State put on no evidence and insufficient evidence had been presented. Johnson's motion for new trial also alleged the evidence was factually insufficient to support a finding beyond a reasonable doubt that Johnson suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, because the State failed to proffer evidence that Johnson's past acts were "predatory acts" or that his "behavioral abnormality" would make him likely to engage in future "predatory acts" of sexual violence. On appeal, Johnson argues that preservation of error is not required because his challenge is restricted to the face of the record and does not address the underlying methodology, technique or foundational data. The case on which he relies, Coastal Transport Co., Inc. v. Crown Central Petroleum Corp., clarified an earlier rule, expressed in Maritime Overseas Corp. v. Ellis, which held that by failing to object to an expert's testimony a party waived its sufficiency challenge with regard to that testimony. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-33 (Tex. 2004); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Coastal Transport was a case in which the trial court had directed a verdict and the issue on appeal was whether any evidence supported that ruling. Coastal Transp., 136 S.W.3d at 230. The Supreme Court ruled that when a challenge is restricted to the face of the record--that is, that the expert's testimony is too speculative or conclusory on its face--"then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility." Id. at 233. Thus, the waiver issue in Coastal Transport concerned the scope of the evidence and the effect to be given that evidence in a legal sufficiency review, not whether a party must preserve error to challenge the legal sufficiency of evidence supporting a verdict in a civil case. Generally, a trial-level complaint is a prerequisite for appellate review. See Tex. R. App. P. 33.1(a). No evidence points must be preserved through one of the following procedural steps in the trial court: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; or, (5) a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). Johnson did not file a motion for judgment notwithstanding the verdict or a motion to disregard the jury's answer. Although he objected to the wording of the jury question, he did not object to submission of an issue to the jury. Johnson did move for a directed verdict when the State rested. Because Johnson did not re-urge his motion after presenting his own witness, however, the motion for directed verdict did not preserve error. See Ratsavong v. Menevilay, 176 S.W.3d 661, 667 (Tex. App.--El Paso 2005, pet. denied); 1986 Dodge v. State, 129 S.W.3d 180, 183 (Tex. App.--Texarkana 2004, no pet.); Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.--Houston [1st Dist.] 1996, no writ). Johnson, however, filed a motion for new trial. A "no evidence" issue may be preserved by filing a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 512 (Tex. 1991). Johnson's motion for new trial did not mention the expert testimony, but he did argue that "Petitioner did not proffer evidence suggesting either that Respondent's past convictions were 'predatory acts' as envisioned by the statute or that his 'behavioral abnormality' would make him likely to engage in future 'predatory acts' of sexual violence." The motion for new trial differs significantly from the argument raised on appeal. Nonetheless, the State offered expert testimony to prove that Johnson suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. Because the expert testimony was offered to prove that Johnson suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence and Johnson raised the State's failure to present evidence that his behavioral abnormality would make him likely to engage in future predatory acts of sexual violence, Johnson preserved that issue for appellate review. Johnson contends the experts offered only conclusory statements. While it is true that a bare, baseless opinion of an expert is legally insufficient evidence to support a judgment even if the opposing party failed to object to the admission of the testimony, we disagree with Johnson's characterization of the testimony as having been conclusory. Cf. City of San Antonio v. Pollock, 284 S.W.3d 809, 815-20 (Tex. 2009)(rejecting as conclusory scientific testimony relating to chromosomal anomalies allegedly induced by benzene exposure). Both experts who testified for the State explained their methodology in assessing whether Johnson suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Each expert testified that he examined historical records and an evaluation packet prepared by the sex offender treatment program; historical records regarding the offenses committed by Johnson, his prison disciplinary history, and school, medical, and treatment records; risk assessment instruments and actuarial tests; and each expert conducted an interview with Johnson. Based upon the specific findings on the assessment instruments, which findings he described to the jury in detail, Dr. Charles Woodrick, a psychologist, diagnosed Johnson with antisocial personality disorder. In his opinion, that diagnosis, when combined with Johnson's high risk scores on the recidivism scales, indicated he was a person at high risk. Dr. Rahn Bailey, a psychiatrist board certified in forensic medicine, also diagnosed Johnson with antisocial personality disorder. He too explained in detail his specific findings on the assessment instruments and how they related to his diagnosis. Johnson's expert, Dr. Anna Shursen, a family therapist and licensed sex offender treatment provider, used the same information and assessment instruments in her evaluation. Shursen agreed that Johnson's scores on the assessment instruments indicate he poses a risk to reoffend. Although Johnson displayed some symptoms of antisocial personality disorder, Shursen deferred a diagnosis because she did not believe that he displayed sufficient symptomology for a diagnosis. On appeal, Johnson argues that Woodrick's and Bailey's reliance on "unquestioned acceptance of versions of past incidents" shows that their opinions are not based upon facts. Shursen testified that she tries to ascertain what really happened based upon her interview with Johnson and the available records. That is precisely what the State's experts testified they did as well. The record does not demonstrate that the expert testimony supporting the verdict had no probative value. As that is the sole reason advanced on appeal for challenging the legal sufficiency of the evidence, we conclude that a rational jury could have found beyond a reasonable doubt that Johnson suffers from a behavioral abnormality that predisposes him to commit a sexually violent offense. We overrule issue one. In his second issue, Johnson contends the State failed to present competent legally sufficient evidence to support a finding that Johnson has a behavioral abnormality, thereby violating Johnson's right not to have his liberty taken away without due process of law required by the Fourteenth Amendment to the United States Constitution. Johnson claims neither of the State's experts placed any numeric percentage on predicting the likelihood of sexual violence. Because "likely" is undefined in the statute and the facts upon which the experts based their opinions are unverified, Johnson argues, his basic constitutional rights have been violated. See Tex. Health & Safety Code Ann. § 841.003(a) (Vernon 2003). The United States Supreme Court upheld, under the due process clause of the Fourteenth Amendment, a Kansas statute that permitted initiation of commitment proceedings when a person "'has been convicted of or charged with a sexually violent offense,' and 'suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting Kan. Stat. Ann. § 59-29a02(a) (1994)). "Likely" need not be defined in Section 841.003(a) in order for the jury to be able to determine beyond a reasonable doubt whether Johnson suffers from a behavioral abnormality that predisposes him to engage in a sexually violent offense. "Words and phrases shall be read in context and construed according to the rules of grammar and common usage." Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005). We give undefined terms their "broadest possible understanding in the context of which they are reasonably susceptible in ordinary English." Teer v. State, 923 S.W.2d 11, 19 (Tex. Crim. App. 1996). Johnson claims that the experts could not place a numeric measure on his likelihood of reoffending. His complaint that the experts failed to provide an objective assessment of his likelihood of reoffending is not supported by the record. We note that two of the actuarial assessment instruments applied by Woodrick and Bailey do evaluate the probability of either re-conviction or re-arrest based upon statistical rates across populations. Each expert scored Johnson on each test and explained his assessment to the jury. In addition, each expert also utilized the Hare Psychopathy Checklist, or PCL-R, and explained his assessment to the jury. Bailey testified Johnson's score of 26 out of 40 placed him in a moderate to high risk of future acts of sexual violence. Woodrick testified Johnson's score of 30 placed him in a higher risk category for repetition of future criminal offenses and possibility of future violent offenses. Finally, both experts applied the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, or DSM-IV, to Johnson and explained to the jury the finding made at each axis and why he made the particular finding. Thus, the experts did apply evaluations validated by peer-reviewed research. We do not find the facts relied upon by the experts to be, as Johnson argues, "unverified." The experts referred to specific facts found in documents in the historical records. Neither Woodrick nor Bailey determined that Johnson was likely to commit an act of sexual violence based upon the mere fact of his conviction; rather, both referred to specific examples of behavior by Johnson that were either self-reported by Johnson in sex offender treatment or through interviews or details of the offenses that were contemporaneously reported by his victims. We overrule issue two. In issue three, Johnson contends the evidence is factually insufficient to support the jury's verdict that he suffers from a behavioral abnormality. We view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding a behavioral abnormality beyond a reasonable doubt. In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App.--Beaumont 2007, no pet.). Johnson argues that the State's experts simply presumed Johnson's records were accurate and that only his expert, Shursen, performed any actual evaluation of Johnson's situation. The record shows, however, that both Woodrick and Bailey personally interviewed Johnson and obtained his version of the details of the offenses. Woodrick explained that after interviewing Johnson he reviewed the file material and determined that the victims' accounts were more coherent and that at different times Johnson had given various accounts of what had happened. Bailey found it significant that Johnson admitted some illegal behavior and noted that it is difficult to determine "exactly which set of facts are exactly right." For each offense, Bailey noted the points that Johnson acknowledged and those which he denied. According to Bailey, people remember facts based on their own experience and their emotions; the professional's job is not to make a judgment on which facts are correct, but to make a professional judgment based on the psychology of the circumstance. Bailey testified that the victims in the two cases gave accounts of a sexual violation of their personal integrity and Johnson acknowledges that he was there and a conflict with the female occurred. To Bailey, that implies "a brain that is not working correctly." For most people, Bailey explained, a filter would kick in that would tell the actor not to do something because the other person says not to. Furthermore, Shursen explained that she thought "there's a possibility that Mr. Johnson did not do this rape" and the victim may have been angry at Johnson for robbing her, and she also thought it was possible that the thirteen-year-old victim was confused and only thought Johnson was trying to attack her. Shursen noted "the truth lies somewhere in between" Johnson's version of the events and that of his victims. While she testified that she thought his story is "possible," she did not explain to the jury why it was necessary to accept Johnson's version of the offenses in determining whether he suffers from a behavioral abnormality. In fact, Shursen did "not necessarily" give Johnson's version more weight and she agreed that "most everyone wants to paint themselves in a better light." Viewing all of the evidence in a neutral light, we hold the jury was rationally justified in finding beyond a reasonable doubt that Johnson suffers from a behavioral abnormality. We overrule issue three. We affirm the judgment and order of commitment. AFFIRMED. _____________________________ STEVE McKEITHEN Chief Justice Submitted on August 24, 2009 Opinion Delivered September 17, 2009 Before McKeithen, C.J., Kreger and Horton, JJ.