in Re Commitment of Gary Lee Cardenas ( 2014 )


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  •                                        In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ____________________
    NO. 09-13-00484-CV
    ____________________
    IN RE COMMITMENT OF GARY LEE CARDENAS
    _________________________________     ______________________
    On Appeal from the 435th District Court
    Montgomery County, Texas
    Trial Cause No. 12-12-13067 CV
    ____________________________________________                          ____________
    MEMORANDUM OPINION
    The State of Texas filed a petition to commit Gary Lee Cardenas as a
    sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
    (West 2010 & Supp. 2013). A jury found that Cardenas is a sexually violent
    predator and the trial court rendered a final judgment and an order of civil
    commitment. In four appellate issues, Cardenas challenges: (1) the denial of his
    request to have an attorney present during the State’s post-petition expert
    examination; (2) the admission of certain evidence; and (3) the legal and factual
    sufficiency of the evidence to support the jury’s verdict. We affirm the trial court’s
    judgment and order of civil commitment.
    1
    Sufficiency of the Evidence
    In issues three and four, Cardenas contends that the evidence is legally and
    factually insufficient to support a finding that he is a sexually violent predator.
    Under legal sufficiency review, we assess all the evidence in the light most
    favorable to the verdict to determine whether any rational trier of fact could find,
    beyond a reasonable doubt, the elements required for commitment under the SVP
    statute. In re Commitment of Mullens, 
    92 S.W.3d 881
    , 885 (Tex. App.—Beaumont
    2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in
    the testimony, weigh the evidence, and draw reasonable inferences from basic facts
    to ultimate facts. 
    Id. at 887.
    Under factual sufficiency review, we weigh the
    evidence to determine “whether a verdict that is supported by legally sufficient
    evidence nevertheless reflects a risk of injustice that would compel ordering a new
    trial.” In re Commitment of Day, 
    342 S.W.3d 193
    , 213 (Tex. App.—Beaumont
    2011, pet. denied).
    In an SVP case, the State must prove, beyond a reasonable doubt, that a
    person is a sexually violent predator. Tex. Health & Safety Code Ann. §
    841.062(a) (West 2010). A person is a “sexually violent predator” if he is a repeat
    sexually violent offender and suffers from a behavioral abnormality that makes
    him likely to engage in a predatory act of sexual violence. 
    Id. § 841.003(a)
    (West
    2
    Supp. 2013). A “behavioral abnormality” is “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).
    “A
    condition which affects either emotional capacity or volitional capacity to the
    extent a person is predisposed to threaten the health and safety of others with acts
    of sexual violence is an abnormality which causes serious difficulty in behavior
    control.” In re Commitment of Almaguer, 
    117 S.W.3d 500
    , 506 (Tex. App.—
    Beaumont 2003, pet. denied).
    During trial, the jury heard Cardenas’s admissions to previous convictions
    for sexual assault and attempted sexual assault, as well as numerous prison
    disciplinary cases, including three cases for sexual misconduct. The jury also heard
    evidence regarding Cardenas’s criminal history, including his sexual offenses and
    prison disciplinary cases. Cardenas testified that he is now more mature and has
    more knowledge and education to apply in the future. He testified that he has
    completed substance abuse treatment and is participating in sex offender treatment.
    Cardenas admitted that he is a recovering drug addict and a sex offender, but he
    gave inconsistent opinions as to whether he needs sex offender treatment. He
    explained that he does not want to waste his opportunity in the free world.
    3
    Dr. Stephen Thorne, a psychologist, and Dr. Sheri Gaines, a medical doctor
    specializing in psychiatry, both concluded that Cardenas suffers from a behavioral
    abnormality that makes him likely to engage in a predatory act of sexual violence.
    Thorne and Gaines diagnosed Cardenas with antisocial personality disorder, which
    Thorne explained is a condition that has affected Cardenas’s emotional and
    volitional capacity. Gaines also diagnosed Cardenas with paraphilia not otherwise
    specified and polysubstance dependence in remission in a controlled environment.
    Thorne performed the Hare Psychopathy Checklist on which Cardenas scored a
    twenty-six, meaning that he has more psychopathic traits than the average person.
    Thorne testified that Cardenas scored a five on the Static-99R, which places
    Cardenas in the moderate to high range of sexual re-offense. Thorne and Gaines
    identified the following factors that increase Cardenas’s risk of reoffending: sexual
    deviancy, extra-familial victim, stranger victim, sexual misconduct while
    incarcerated, use of force, substance abuse, offenses in a public setting, antisocial
    behavior, criminal offenses and behavior, offenses while under supervision,
    persistence after punishment, failure to successfully complete sex offender
    treatment, relationship history, victim blame, unstable lifestyle, and poor
    institutional adjustment.
    4
    Dr. Marisa Mauro, a psychologist, testified for the defense. It was her
    opinion that Cardenas does not have a behavioral abnormality. Mauro diagnosed
    Cardenas with antisocial personality disorder and cannabis use disorder. She
    conducted the Hare Psychopathy Checklist, on which Cardenas scored twenty-
    seven, placing him in the range of “mixed psychopathic features.” Mauro
    performed the Static-99R actuarial test on which Cardenas scored a five, a
    moderate to high risk of re-offense. She testified that Cardenas scored a six on the
    Static-2002R, i.e., the moderate range of re-offense. She identified the following
    risk factors: substance abuse, antisocial personality disorder, and factors
    encompassed by the actuarial tests. Mauro also identified protective factors: no
    male victims, no child victims, successful relationships, age, gang renouncement,
    sobriety, and participation in sex offender treatment. She admitted that a
    personality disorder is a congenital or acquired condition that can affect a person’s
    emotional or volitional capacity and Cardenas’s antisocial personality disorder
    could have played a role in his sexual offending. However, Mauro did not believe
    that Cardenas has serious difficulty controlling his behavior or has a condition that
    affects his emotional or volitional capacity.
    On appeal, Cardenas contends that Thorne and Gaines relied on incorrect
    legal standards. Thorne testified that sexual deviancy and antisocial behavior, such
    5
    as rule violations, criminal activity, and inability to control behavior, are primary
    considerations and that Cardenas’s criminal and disciplinary history shows that his
    volitional capacity has been affected. Gaines testified that it is significant when a
    person is receiving sex offender treatment and is under supervision, yet reoffends,
    as this shows a lack of emotional or volitional control. Cardenas contends that this
    testimony improperly suggests that all repeat sex offenders have serious inability
    controlling their behavior.
    Whether a person suffers from an emotional or volitional defect so grave as
    to cause behavior that makes him a menace is included in the determination of
    whether he has serious difficulty in controlling behavior. 
    Almaguer, 117 S.W.3d at 505-06
    . The jury could infer serious difficulty controlling behavior not only from
    the expert testimony, but also from Cardenas’s past behavior and testimony. See In
    re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at
    *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); see also In re
    Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at
    *20 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem. op.). Accordingly, we
    cannot say that the evidence is insufficient as a result of the experts’ testimony
    regarding volitional capacity.
    6
    Additionally, Cardenas complains of the experts’ definitions of the word
    “likely.” Thorne defined “likely” to mean “[p]robable.” Gaines defined “likely” as
    “inclined to, tending to, likely to.” The term “likely” does not have a “precise
    definition of the type associated with any certain assigned percentage of risk.” In
    re Commitment of Kalati, 
    370 S.W.3d 435
    , 439 (Tex. App.—Beaumont 2012, pet.
    denied). An expert’s testimony is not insufficient merely because the term “likely”
    is not defined by the statute or case law. In re Commitment of Kirsch, No. 09-08-
    00004-CV, 2009 Tex. App. LEXIS 5436, at *17 (Tex. App.—Beaumont July 16,
    2009, pet. denied) (mem. op.). Nor does an expert’s explanation of the term
    “likely,” alone, render the evidence insufficient to support the jury’s finding that a
    person suffers from a behavioral abnormality. 
    Id. at *19.
    Thorne’s and Gaines’s
    definitions of “likely” merely go to the weight that the jury might give their
    testimony. See 
    id. As sole
    judge of the weight and credibility of the evidence, the jury could
    reasonably conclude that Cardenas suffers from a behavioral abnormality that
    makes him likely to engage in a predatory act of sexual violence. See In re
    Commitment of Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681, at
    **6-7 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see also
    
    Mullens, 92 S.W.3d at 887
    ; 
    Almaguer, 117 S.W.3d at 505-506
    ; Burnett, 
    2009 Tex. 7
    App. LEXIS 9930, at *13; Grinstead, 2009 Tex. App. LEXIS 228, at *16. That
    Cardenas has serious difficulty controlling his behavior and is likely to commit
    predatory acts of sexual violence directed toward individuals for the primary
    purpose of victimization are implicit in this finding. See In re Commitment of
    Bailey, No. 09-09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex.
    App.—Beaumont Aug. 19, 2010, no pet.) (mem. op.); see also Grinstead, 2009
    Tex. App. LEXIS 228, at *16. Viewing the evidence in the light most favorable to
    the verdict, a rational jury could have found, beyond a reasonable doubt, that
    Cardenas is a sexually violent predator; thus, the evidence is legally sufficient. See
    Tex. Health & Safety Code Ann. § 841.062(a); see also Kansas v. Crane, 
    534 U.S. 407
    , 413 (2002); 
    Mullens, 92 S.W.3d at 885
    . Weighing all of the evidence, the
    verdict does not reflect a risk of injustice that would compel ordering a new trial.
    See 
    Day, 342 S.W.3d at 213
    . We overrule issues three and four.
    Right to Counsel
    In issue one, Cardenas complains of the denial of his request to have an
    attorney present at the pre-trial expert examination. We have held that neither the
    SVP statute nor the Fourteenth Amendment requires that counsel be present during
    a psychiatrist’s post-petition examination. See In re Commitment of Smith, 
    422 S.W.3d 802
    , 807 (Tex. App.—Beaumont 2014, pet. denied). Cardenas argues that
    8
    Smith was based solely on a concession by Smith that the SVP statute defines a
    civil commitment proceeding as a “trial or hearing” and does not appear to
    encompass a pre-trial psychiatric examination. See 
    id. at 806.
    In Smith, we merely
    noted that Smith made this concession and we did not base our holding on that
    concession alone. 
    Id. at 804-07.
    Additionally, we have upheld our ruling in other
    cases. See In re Commitment of Speed, No. 09-13-00488-CV, 2014 Tex. App.
    LEXIS 4444, at *2 (Tex. App.—Beaumont Apr. 24, 2014, pet. filed) (mem. op.);
    see also In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 Tex. App.
    LEXIS 3888, at **1-2 (Tex. App.—Beaumont Apr. 10, 2014, no pet. h.) (mem.
    op.). We decline to revisit our ruling in Smith and, for the reasons discussed in
    Smith, we overrule Cardenas’s first issue.
    Admission of Evidence
    In issue two, Cardenas challenges the admission of evidence regarding the
    details of his sexually violent offenses. “We review a trial court’s evidentiary
    rulings for abuse of discretion.” Horizon/CMS Healthcare Corp. v. Auld, 
    34 S.W.3d 887
    , 906 (Tex. 2000); see In re Commitment of Salazar, No. 09-07-345
    CV, 2008 Tex. App. LEXIS 8856, at *19 (Tex. App.—Beaumont Nov. 26, 2008,
    pet. denied) (mem. op.). We will not reverse unless the error probably caused the
    rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1).
    9
    “[A]n expert may disclose on direct examination, or be required to disclose
    on cross-examination, the underlying facts or data on which he bases his opinion.”
    In re Commitment of Jackson, No. 09-12-00291-CV, 2013 Tex. App. LEXIS
    13507, at *9 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op); see 
    Day, 342 S.W.3d at 197-98
    . The trial court “shall exclude the underlying facts or data if
    the danger that they will be used for a purpose other than as explanation or support
    for the expert’s opinion outweighs their value as explanation or support or are
    unfairly prejudicial.” Tex. R. Evid. 705(d). “If otherwise inadmissible facts or data
    are disclosed before the jury, a limiting instruction by the court shall be given upon
    request.” 
    Id. Even relevant
    evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.
    Cardenas did not object to the trial court’s limiting instructions given during
    trial, request a different or additional instruction, or object to the limiting
    instruction contained in the jury charge. We presume the jury followed the trial
    court’s limiting instructions. See 
    Day, 342 S.W.3d at 199
    . Additionally, Cardenas
    himself testified to the details of his sexual offenses. The trial court could
    reasonably conclude that the facts and details related to Cardenas’s underlying
    offenses would be helpful to the jury to explain how Thorne and Gaines formed
    their opinions that Cardenas suffers from a behavioral abnormality. Given the
    10
    purpose for admitting this evidence, its cumulative nature, and the trial court’s
    limiting instructions, the trial court’s conclusion that the evidence was not unfairly
    prejudicial was reasonable. See Jackson, 2013 Tex. App. LEXIS 13507, at *10; see
    also In re Commitment of King, No. 09-13-00255-CV, 2014 Tex. App. LEXIS 724,
    at **7-8; (Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.); 
    Day, 342 S.W.3d at 199
    . The admission of Thorne’s and Gaines’s testimony was not an
    abuse of discretion and did not cause the rendition of an improper judgment. See
    Tex. R. App. P. 44.1(a)(1). We overrule issue two and affirm the trial court’s
    judgment and order of civil commitment.
    AFFIRMED.
    ________________________________
    STEVE McKEITHEN
    Chief Justice
    Submitted on May 22, 2014
    Opinion Delivered June 12, 2014
    Before McKeithen, C.J., Kreger and Horton, JJ.
    11