in Re Commitment of Willie Brooks

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-08-00504-CV _____________________ IN RE COMMITMENT OF WILLIE BROOKS On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 08-02-01918 CV MEMORANDUM OPINION The State filed a petition seeking to involuntarily civilly commit Willie Brooks. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp. 2008). The jury found him to be a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.003 (Vernon 2003). Brooks appeals from the trial court's final judgment and order of civil commitment. 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. § 841.002(9) (Vernon Supp. 2009); § 841.003. Brooks previously had pled guilty to and was convicted of two offenses of sexual assault, one conviction in 1986 and one in 1994; he has been incarcerated since the 1994 conviction. The Act defines "[b]ehavioral 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." Id. § 841.002(2) (Vernon Supp. 2008). In issue one, Brooks argues the evidence is legally insufficient, because the testimony of expert witnesses Dr. Arambula and Dr. Proctor is speculative and conclusory and lacks the probative force required to support the verdict. He asserts their diagnoses rely on conjecture. Brooks also argues the evidence relied on by Dr. Proctor does not establish Brooks has a behavioral abnormality, as defined in the Act. Brooks asserts he did not need to object to the speculative or conclusory expert testimony. The Supreme Court has 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, No. 04-1118, 2009 WL 1165317, at *5 (Tex. May 1, 2009) (citing Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)). If there is no basis offered for the expert's opinion or if the basis offered provides no support, the opinion is considered conclusory and not probative evidence. Id. at *6. 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, an objection "must be timely made so that the trial court has the opportunity to conduct this analysis." Id. at *5 (quoting Coastal Transp. Co., 136 S.W.3d at 233). Here, there was no objection to the testimony of either witness on grounds of unreliability. Chapter 841 requires the State to prove that a person is a sexually violent predator beyond a reasonable doubt. See Tex. Health & Safety Code Ann. § 841.062(a) (Vernon 2003). As a result, although this is a civil case, on appeal we review legal sufficiency issues by the standard of review applied in criminal cases for legal sufficiency. 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 at trial to decide if a rational jury could have found beyond a reasonable doubt that Brooks suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id. at 887. The State presented two expert witnesses. Dr. Proctor, board certified in forensic psychology, testified he reviewed records normally relied on by experts in the field to arrive at his opinion. He also interviewed Brooks. Proctor reviewed Brooks's offense reports, prison records, medical records, his extensive criminal history, and the results of his evaluation for the Sex Offender Treatment Program. Proctor diagnosed Brooks with "antisocial personality disorder, which accounts for a long history of having trouble following the rules and guidelines of society." In addition, Proctor diagnosed Brooks with borderline intellectual functioning, alcohol (1) and marihuana dependence, and sexual abuse of an adult. While Brooks was on probation for the first sexual assault offense, his probation was revoked for delivery of a controlled substance. He committed the second sexual assault offense while he was on probation for DWI. Based on his review of the records, Proctor indicated Brooks chose strangers, one of whom was six months pregnant at the time of the sexual assault. In his initial statement to the police, Brooks apparently stated he did not know the women; at trial he indicated he did. Both victims told the police they did not know Brooks. Proctor explained that choosing a stranger as a victim is indicative of a heightened risk of reoffending. Committing his crimes in the middle of the night, Brooks used physical force to sexually assault his victims. Proctor considered the sexual assaults to be representative of a pattern and indicated that the conduct went to the weight of Brooks's behavioral abnormality. Proctor testified that apparently Brooks was stimulated by the act of forcing a person to have sex. Brooks minimized his role or denied he committed the offenses, which, Proctor explained, is significant in determining whether a person has a behavioral abnormality. The fact that Brooks preys on his victims is also indicative of a behavioral abnormality. Proctor testified Brooks showed no remorse for the offenses or took any responsibility for them. As Proctor explained, "[I]f someone is not even accepting what they've done previously, it raises concern about what might happen in the future." On the actuarial tests, which assist in ascertaining certain risk factors for reoffending, Proctor scored Brooks in the moderately high range on the Static-99 test. On the Mn-SOST, Proctor scored him in the high risk group. On the Hare Psychopathy Checklist Revised, Proctor ultimately scored Brooks at 29.5. A score of 30 is the usually accepted cutoff for a diagnosis of psychopathy. Proctor testified, "That's right at the level of psychopath. So it's consistent with someone who does have psychopathy." On all of the actuarials, Proctor scored Brooks at a moderate to high risk level. Proctor found both negative and "positive and protective factors" in Brooks's record. Based on the testing, the interview, and a review of the various records, Proctor diagnosed Brooks as having a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Dr. Arambula, board certified in general psychiatry and in forensic psychiatry, testified he performed a psychological evaluation of Brooks and interviewed him. Like Proctor, Arambula reviewed prison records, offense reports, criminal history, medical records, and the results of Brooks's evaluation from the Sex Offender Treatment Program. Based on his review of the records and his interview with Brooks, Arambula diagnosed Brooks with sexual abuse of an adult, polysubstance dependence in remission, borderline intellectual functioning, and antisocial personality disorder. Arambula testified to three positive factors in Brooks's record that would possibly weigh against reoffending: his employment history, his age, and the ability to behave fairly acceptably in prison. However, Arambula also described numerous negative risk factors for reoffending: past convictions for sexual offenses, minimization or denial of commission of the offenses, lack of empathy for the victims, and the fact that there was more than one sexual assault. Arambula testified Brooks saw himself as a victim and did not acknowledge any responsibility for the sexual assaults. Arambula also pointed to additional risk-of-reoffending factors, such as Brooks's performing multiple sex acts on one victim, his long arrest record, his long history of polysubstance abuse, his long history of antisocial conduct, borderline intellectual functioning, a major disciplinary infraction in prison, and his lack of treatment. Arambula described Brooks as a predator -- someone with aggressive behavior or urges who looks for victims he knows he can exploit. Arambula testified that Brooks suffers from a behavioral abnormality and testified to reasons that Brooks would be likely to reoffend. Proctor and Arambula explained, from their review of the records before them and their interviews with Brooks, the characteristics and conduct of Brooks that demonstrate his behavioral abnormality, as defined in the Act. 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 Brooks suffered from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The testimony was not conclusory or speculative. Dr. Shursen, a licensed professional counselor and licensed sex offender treatment provider, testified for Brooks. She performed actuarial tests, reviewed Brooks's file, and conducted a personal interview with him. She concluded that Brooks does not suffer from a "behavioral abnormality that makes him a menace to society." Shursen believed Brooks had the ability to stop his alcohol and drug use in view of the fact that he had been diagnosed with health problems. She understood that he had stopped using alcohol and drugs. She did not find troubling the inconsistencies between Brooks's narrative of the events and the evidence found in the record. Based on her review of the records provided to her and on her interview with Brooks, she concluded there was sexual abuse of an adult; Brooks did not have an antisocial personality disorder; he was not suffering from psychopathy; and the victims and Brooks were not strangers. Her assessment was that Brooks "ha[d] made changes in his life" and stopped using drugs and alcohol; his age made him less of a risk to recidivate; he desired employment; he was interested in finding his family; and his risk for recidivism was moderate. 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 (citing Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994)). Conflicts and contradictions in the evidence may be resolved by believing all, part, or none of the witnesses' testimony. Id. (citing Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)). Further, a jury may draw reasonable inferences from basic facts to determine ultimate fact issues. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The record does not demonstrate that the expert testimony supporting the verdict was without probative value. Reviewing the record in the light most favorable to the jury's verdict, we conclude a rational jury could have found beyond a reasonable doubt that Brooks suffers from a behavioral abnormality that predisposes him to commit future acts of sexual violence. We overrule issue one. In issue two, Brooks argues the trial court erred by failing to include the requested jury question requiring the jury to find that he has an issue with volitional control. We have considered and rejected this issue in previous cases. See In re Commitment of Almaguer, 117 S.W.3d 500, 505-06 (Tex. App.--Beaumont 2003, pet. denied); see also In re Commitment of Petersimes, 122 S.W.3d 370, 372 (Tex. App.--Beaumont 2003, pet. denied); In re Commitment of Adams, 122 S.W.3d 451, 452-53 (Tex. App.--Beaumont 2003, no pet.). When a statute governs a case, the jury charge should track the language of the statutory provision as closely as possible. In re Commitment of Almaguer, 117 S.W.3d at 502-03. The jury charge here did so. Although Brooks invites us to reconsider our prior holdings, we decline to do so. The requested question would merely have emphasized one aspect of the case already implicit in the statutory definition and broad-form question. See In re Commitment of Riojas, 220 S.W.3d 195, 196 (Tex. App.--Beaumont 2007, no pet.) (citing In re Commitment of Almaguer, 117 S.W.3d at 505-06). Issue two is overruled. The judgment is affirmed. AFFIRMED. _________________________________ DAVID GAULTNEY Justice Submitted on July 7, 2009 Opinion Delivered July 30, 2009 Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. Proctor indicated the alcohol abuse was in full remission in a controlled environment, because Brooks had been in prison and there was no information Brooks had alcohol in prison.