in Re: The Commitment of Rickey Lynn Sawyer ( 2018 )

AFFIRM; and Opinion Filed July 11, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00516-CV
IN RE THE COMMITMENT OF RICKEY LYNN SAWYER
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. CV1670004
MEMORANDUM OPINION
Before Justices Francis, Brown, and Stoddart
Opinion by Justice Brown
Rickey Lynn Sawyer appeals the trial court’s judgment and order of civil commitment
following a jury’s determination that he is a sexually violent predator as defined in the health and
safety code. In three issues, Sawyer contends the trial court erred in admitting hearsay evidence
of a nontestifying expert’s evaluation of him and challenges the legal and factual sufficiency of
the evidence. We affirm the trial court’s judgment and order of commitment.
BACKGROUND
In enacting the Civil Commitment of Sexually Violent Predators Act, the Texas Legislature
found that “a small but extremely dangerous group of sexually violent predators exists and that
those predators have a behavioral abnormality that is not amenable to traditional mental illness
treatment modalities and that makes the predators likely to engage in repeated predatory acts of
sexual violence.” TEX. HEALTH & SAFETY CODE ANN. § 841.001 (West 2010). It further found
that a civil commitment procedure for the long-term supervision and treatment of sexually violent
predators is necessary and in the interest of the state. Id. To warrant an individual’s commitment
as a sexually violent predator, the State is required to prove beyond a reasonable doubt that the
person is (1) 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),
841.062(a) (West 2010). A person is a repeat sexually violent offender if he has been convicted
of more than one sexually violent offense and a sentence was imposed for at least one of the
offenses. Id. § 841.003(b); see also id. § 841.002(8). 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 “predatory act” is one that is “directed
toward individuals, including family members, for the primary purpose of victimization.” Id. §
841.002(5).
In March 2016, the State of Texas filed a petition alleging that Sawyer is a sexually violent
predator as defined by section 841.003 of the health and safety code. The State alleged Sawyer
had previously been convicted of three sexually violent offenses in Denton and Dallas counties.
The State further alleged that an expert had performed a clinical assessment of Sawyer and found
he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence. At the time the petition was filed, Sawyer was incarcerated, but was scheduled
to be released by September 1, 2016. The State sought to have Sawyer committed for treatment
and supervision.
At trial, pen packets reflecting Sawyer’s convictions for three sexually violent offenses
were admitted into evidence. In 1987, Sawyer was convicted of indecency with a child and
sentenced to two years’ confinement. In 1991, Sawyer was convicted of two counts of aggravated
sexual assault of a child and received concurrent fifty-year sentences. Sawyer was twenty-four
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years’ old when he went to prison in 1991 and at the time of trial had been in prison for the past
twenty-five years.
The State called two witnesses, Dr. Christine Reed, a psychologist, and Sawyer. The Dallas
County District Attorney’s Office asked Dr. Reed to evaluate whether Sawyer had a behavioral
abnormality. In performing these types of evaluations, Dr. Reed reviews various written records,
including mental health and medical records, offense reports, and prison records. Sometimes the
documents from prison include an evaluation performed by another psychologist or psychiatrist.
Dr. Reed also meets with the person being evaluated and gathers information through a clinical
interview. She then looks at all the data and forms an opinion.
In this case, a previous evaluation had been performed in prison by Dr. Jorge Varela.1 Dr.
Reed testified that she reviewed and relied upon the information contained in Dr. Varela’s report.
Dr. Varela determined that Sawyer had a behavioral abnormality. Dr. Reed’s opinion was
consistent with Dr. Varela’s; Dr. Reed formed the opinion that Sawyer suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Dr. Reed testified that when determining whether a person has a behavioral abnormality,
she looks for a number of risk factors and certain mental health issues. In her mental health
evaluation, Dr. Reed determined that Sawyer suffers from pedophilic disorder, which she
described as intense sexual interest, fantasies, or behavior with pre-pubescent children. Someone
who has pedophilic disorder is also considered a pedophile. Pedophilia is a chronic, or lifelong,
condition. Pedophiles may not always act on their attraction to pre-pubescent children, but it will
always be there. Suffering from pedophilic disorder in and of itself does not mean Sawyer has a
behavioral abnormality. It is just one part of the evaluation, but can be a significant part.
According to Dr. Reed, in this case it was significant.
1
The court reporter spelled Varela’s name phonetically as “Barella.”
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Turning to the risk factors, Dr. Reed testified that she looks for sexual deviancy, anti-social
orientation, which means engaging in criminal behavior, and the presence of psychopathy.
Sawyer’s history of engaging in acts with pre-pubescent children is considered deviant. Sawyer
also had a history of anti-social orientation. Sawyer’s criminal behavior began when he was a
teenager. He was first arrested when he was about seventeen, but before that he engaged in
“adolescent-types of criminal behavior that he either wasn’t caught for or wasn’t charged with.”
Sawyer stole a car at some point. When he was younger, he stole cigarettes and sold marijuana to
classmates. Further, he broke the law by engaging in deviant acts. Sawyer had a history of
substance abuse from a young age that plays into anti-social orientation, as well as a history of
very impulsive acts. Dr. Reed also considered Sawyer’s overall history, including employment
history and relationship history. Sawyer reported no significant romantic relationships with an
appropriate age partner that lasted for any length of time, which was a risk factor.
Dr. Reed also looked at protective factors, things that mitigate against the risk factors. The
main protective factor is participation in a sex offender treatment program. Sawyer completed
such a program, but that does not trump all risk factors and people who complete sex therapy can
still reoffend. Sawyer is a sexual recidivist, meaning he had committed a sexual offense more than
once.
Dr. Reed interviewed Sawyer in prison in June 2016 for about three hours. They discussed
his sexual offenses. The first conviction, for indecency with a child, arose out of Sawyer’s 1986
conduct with W., the six or seven-year-old son of Sawyer’s co-worker. Sawyer told Dr. Reed he
fondled W.’s genitals over his clothes while he was babysitting the boy. Sawyer said he had done
so more than ten times. Sawyer told other evaluators it happened twenty-five to thirty times. He
also reported it had happened only once. Dr. Reed identified several risk factors in this offense,
including sexual deviance.
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Prior to W., Sawyer committed sexual acts with other young children. Sawyer told Dr.
Reed he began in 1983 or 1984 with one of his nephews, J. At that time, J. was about two years’
old, and Sawyer was sixteen or seventeen. Sawyer told Dr. Reed that he “kind of stumble[d] upon”
J. in Sawyer’s bedroom one night as Sawyer came in through the window. Sawyer kissed J. and
indicated to Dr. Reed that the boy initiated the contact. He did not describe sexual contact to Dr.
Reed, but had to other evaluators. Dr. Reed’s understanding was that Sawyer had sexual contact
with J. that night. Sawyer was never charged for that incident. Sawyer’s statements about the
contact suggested it was a relationship, a kind of mutual sexual contact. Dr. Reed said this was a
significant concern and a risk factor. Dr. Reed also testified it was of significant concern that
Sawyer later put himself in the position of being alone with W. when he already had a pattern of
engaging in these behaviors with pre-pubescent children.
Sawyer was ultimately convicted of the aggravated sexual assault of J. and another nephew
for a 1991 incident. Sawyer and the boys, J. and T., were asleep in the living room of Sawyer’s
parents’ house, as was the boys’ father, who was Sawyer’s brother. Sawyer woke up J., who was
about nine at the time, fondled him, and performed oral sex on him. Then he woke up T., who
was younger than J., and did the same to him. The risk factors in this behavior included sexual
deviancy and the fact that the boys’ father was in the room at the time. Another risk factor was
the fact that Sawyer reoffended after having gone to prison for the offense against W. Dr. Reed
testified Sawyer knew his behavior was wrong, but did not characterize it as a sexual attraction.
He attributed the behavior to his being bored or impulsive. Sawyer did not think he was a
pedophile.
Dr. Reed performed several tests on Sawyer; these sorts of standardized tests are given
whenever someone is being evaluated for a behavioral abnormality. One was the Hare
Psychopathy Checklist, also known as the PCL-R. A psychopath is someone that typically lacks
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conscience. Psychopaths do not have a lot of empathy for others; they see them as objects. Dr.
Reed testified that Sawyer displays traits of psychopathy, but did not suffer from psychopathy. Dr.
Reed also used an actuarial instrument called the STATIC-99R that measures for risk of reoffense
for sexual offenses. The test took into account various factors, including prior nonsexually violent
convictions and prior sex offenses. It considered such things as whether the sex offense victims
were strangers and whether they were male. Dr. Reed scored Sawyer conservatively. Sawyer
scored a 3, which indicated he was at a low to moderate risk for reoffense. To make sure she had
a fully formed opinion, Dr. Reed did another test called the SVR-20. It did not provide anything
new, but was more of a compilation of various risk factors. Dr. Reed testified she believed Dr.
Varela performed the PCL-R and the STATIC-99.
Dr. Reed then testified about Sawyer’s institutional adjustment, which refers to how a
person behaves in the prison system. Sawyer had fifty-seven total infractions, twenty-one of which
were major infractions. None were of a sexual nature, but he had a hard time following the rules,
even in a structured setting. Sawyer completed a nine-month sex offender treatment program while
in prison. He entered the program in December 2015. The treatment records indicated Sawyer
lacked insight or understanding of why he did what he did and how not to do it again. Dr. Reed
herself also noticed a lack of insight. Sawyer repeatedly said to Dr. Reed that he engaged in the
behavior because he was bored or stressed. He denied that he is sexually attracted to children. Dr.
Reed indicated that it is hard for someone to make a plan not to repeat behavior if he does not
acknowledge a key component of why he engaged in the behavior.
Dr. Reed testified that in her opinion Sawyer suffers from a behavioral abnormality that
makes him likely to engage in the predatory act of sexual violence. According to Dr. Reed,
Sawyer’s risk level to commit a predatory act of sexual violence is that of the small but dangerous
population of sex offenders the law in question was meant to address. Dr. Reed stated she believed
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he had the behavioral abnormality and was likely to reoffend. She stated that opinion was
consistent with Dr. Varela’s.
On cross-examination, Dr. Reed testified that Sawyer had not completed treatment at the
time she interviewed him. She did not meet with him again after he competed the program. In
addition, Dr. Varela met with Sawyer prior to sex offender treatment. Dr. Reed testified that
Sawyer got a score of “Good” for his overall participation in the treatment program.
Defense counsel asked about Dr. Varela’s evaluation. Since the time Dr. Varela evaluated
Sawyer, there had been thousands of pages of records in the case. Dr. Reed did not know if Dr.
Varela had a chance to review those records, which included things such as notes from sex offender
treatment and Sawyer’s completion certificate. Defense counsel asked Dr. Reed about differences
in their scoring of the STATIC-99R test.
Sawyer was granted parole and Dr. Reed had reviewed the records from the parole process.
The Board of Pardons and Paroles performed a risk assessment on Sawyer. Sawyer passed the
risk assessment and the Board found that he could be released as long as he completed the sex
offender treatment program. The parole board does not do a behavioral abnormality assessment.
Sawyer testified about the offenses he committed against W., J., and T. He could not
remember how many times he fondled W. He did not remember telling Dr. Varela he did so
twenty-five times over three months. He believed he remembered telling Dr. Reed he did so more
than ten times. Sawyer was sentenced to two years in prison in 1987 for the offense against W.
At the time he was on probation for the felony of “accessory to a car theft.” He served all but
about three months of his sentence for indecency with a child. He was out for about three months
and then went back to prison on the car theft for almost two years. In 1991, he picked back up
with J. and started doing things with T. Sawyer testified about the incident with J. and T. at his
parents’ house. He indicated it happened because he was “stressed out, bored, feeling down about
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myself.” That night, Sawyer knew he had to get some kind of help and he told J. “to tell.” Sawyer
testified that he did not remember how many times he performed sex acts on T. When asked if he
recalled telling Dr. Varela about thirty instances with T., Sawyer pleaded the fifth. He continued
to plead the fifth when asked other questions about his conduct with T. and J. He did not remember
telling Dr. Varela that he performed oral sex and digitally penetrated J.’s anus once or twice a
month when J. was between the ages of two to nine. He denied telling Dr. Varela that he fell in
love with J.
Sawyer denied that he was sexually attracted to children and denied telling Dr. Varela
otherwise. He did not agree with Dr. Varela’s and Dr. Reed’s determination that he was a
pedophile. He acted out when he was bored or stressed out. Sawyer stated he asked for and
received sex offender treatment in 1991 through a program started by the prison chaplain. He did
not receive treatment again until 2015 when he was within two years of going home. He testified
he was put in the nine-month program instead of a longer one because he was considered to be at
a low risk for reoffending. Sawyer thought he needed to continue sex offender therapy. He
acknowledged there was a possibility he could reoffend.
Sawyer also testified about his efforts to better himself while in prison. He got his GED
and participated in vocational and college courses. The stipulations of his parole include
registering as a sex offender, having no contact with the victims, and not abusing substances. He
would be on parole for twenty-four years and would have to have sex offender treatment for that
time. The sex offender treatment had given him the tools to prevent relapse. He also testified
about his support system, which included his mother, deacon, and friends.
The jury found beyond a reasonable doubt that Sawyer is a sexually violent predator. Based
on this finding, the trial court’s judgment decrees that Sawyer is a sexually violent predator as
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defined in section 841.003 and orders him civilly committed for treatment and supervision. This
appeal followed.
EVIDENTIARY ISSUE
In his first issue, Sawyer contends the trial court erred in admitting hearsay testimony from
Dr. Varela, the nontestifying expert. During Dr. Reed’s testimony, Sawyer raised a hearsay
objection to her testimony about Dr. Varela’s report. Sawyer also raised rule 403 and objected on
grounds that the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice. After an off-the-record bench conference, the trial court overruled the objections
and granted Sawyer’s request for running objections. At that time, the judge orally advised the
jury:
As far as the Jury is concerned hearsay is a statement other than one made
by the Declarant, the person making the statement while testifying at trial, offered
in evidence to prove the truth of the matter asserted.
As a general rule hearsay is not admissible. However, certain hearsay
information contained in records reviewed and relied upon by experts will be
presented to you through the experts’ testimony. That hearsay or such hearsay was
reviewed by the expert before being present[ed] to you and is being presented to
you only for the purpose of showing the basis of the expert’s opinion and to afford
you the opportunity to decide the weight and credibility to be given to that opinion.
Hearsay cannot be considered for the evidence or the truth of the matter
asserted.
The court’s charge contained a similar instruction:
Hearsay is a statement that: 1) the declarant does not make while testifying
at the current trial or hearing and 2) a party offers in evidence to prove the truth of
the matter asserted in the statement. Hearsay normally is not admissible. In this
case, certain hearsay information contained in records reviewed by an expert or
experts was admitted before you through expert testimony. Such hearsay was
admitted only for the purpose of showing the basis of the expert’s opinion and
cannot be considered as evidence to prove the truth of the matter asserted.
We review a trial court’s evidentiary rulings for abuse of discretion. In re Commitment of
Brown, No. 05-16-01178-CV, 2018 WL 947904, at *7 (Tex. App.—Dallas Feb. 20, 2018, no pet.)
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(mem. op.). A trial court abuses its discretion when it acts without regard to guiding rules or
principles. Id.
The Ninth District Court of Appeals, which until recently decided the vast majority of
appeals involving the civil commitment of sexually violent predators, has determined that the rules
of evidence permit hearsay evidence similar to that at issue in this case. See In re Commitment of
Carr, No. 09-14-00156-CV, 2015 WL 1611949, at *2 (Tex. App.—Beaumont Apr. 9, 2015, no
pet.) (mem. op.) (trial court did not err by permitting testifying expert to testify about nontestifying
expert’s report that concluded appellant suffers from behavioral abnormality); In re Commitment
of Winkle, 434 S.W.3d 300, 315 (Tex. App.—Beaumont 2014, pet. denied) (trial court did not
abuse its discretion in admitting, over hearsay objection, expert’s testimony that two nontestifying
experts found appellant has behavioral abnormality); see also TEX. HEALTH & SAFETY CODE ANN.
§ 841.041(a) (West 2010). An expert may base an opinion on facts or data in the case that the
expert has been made aware of, reviewed, or personally observed. TEX. R. EVID. 703. If experts
in the particular field would reasonably rely on those kinds of facts or data in forming an opinion
on the subject, they need not be admissible for the opinion to be admitted. Id. Rule of evidence
705(a) permits a trial court to admit the underlying facts or data on which an expert has based an
opinion. TEX. R. EVID. 705(a); In re Commitment of Ochoa, No. 09-15-00486-CV, 2016 WL
5417441, at *4 (Tex. App.—Beaumont Sept. 29, 2016, pet. denied) (mem. op.); Carr, 2015 WL
1611949, at *2. Thus, when an expert relies upon hearsay in forming her opinion, and that hearsay
evidence is of a type reasonably relied upon by such experts, the jury is generally permitted to hear
it. See Carr, 2015 WL 1611949, at *2; In re Commitment of Salazar, No. 09-07-345-CV, 2008
WL 4998273, at *4 (Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). If the
underlying facts or data would otherwise be inadmissible, those facts or data should be excluded
only if their probative value in helping the jury evaluate the opinion is outweighed by their
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prejudicial effect. TEX. R. EVID. 705(d). Rule 705(d) provides for the use of a limiting instruction
by the court to ensure that otherwise inadmissible evidence is not improperly used by the jury.
TEX. R. EVID. 705(d); Salazar, 2008 WL 4998273, at *4.
Although he did not mention rule 705 at trial or in his appellate brief, Sawyer acknowledges
that an expert may testify about the underlying facts or data on which the expert has based an
opinion. Sawyer contends that Dr. Varela’s report was not used as the basis for Dr. Reed’s
testimony, but was instead used to improperly bolster Dr. Reed’s findings and as substantive
evidence throughout the prosecutor’s questioning of Sawyer. Sawyer also contends that references
to Dr. Varela’s evaluation should have been excluded as unfairly prejudicial under rule 403.
While the record reflects that Sawyer objected on grounds of hearsay and unfair prejudice,
the record does not show that Sawyer raised in the trial court the specific argument he now makes
that the evidence about Dr. Varela’s report was not admissible because it was not used to show the
basis for Dr. Reed’s opinion, but to improperly bolster her opinion and as substantive evidence.
Accordingly, we conclude this particular argument is not preserved for our review. See TEX. R.
APP. P. 33.1(a). In addition, Sawyer’s complaints about the State’s use of Dr. Varela’s evaluation
during Sawyer’s own testimony, are likewise not preserved. See id. The trial court made clear
when it granted Sawyer’s request for a running objection during Dr. Reed’s testimony that the
running objection was “just for this witness.” Sawyer did not raise any hearsay or rule 403
objections during his testimony.
As for the objections Sawyer did make about Dr. Varela’s report, we conclude the trial
court acted within its discretion in admitting the evidence under rule 705(a). We concur with the
Ninth Court of Appeals that rule 705 permits a trial court to allow a testifying expert to give a
nontestifying expert’s opinion that an individual suffers from a behavioral abnormality. Here, Dr.
Reed testified that her evaluation of Sawyer included a review of various records. She reviewed
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Dr. Varela’s prior evaluation of Sawyer that was included with the records from prison. She stated
that she relied upon the information contained in his report. She used the methodology followed
by other experts that perform these types of evaluations. Further, the trial court properly applied
rule 705(d) by giving the jury limiting instructions. The judge instructed the jury orally and in the
charge that the hearsay was admitted only for the purpose of showing the basis of the expert’s
opinion and could not be considered as evidence to prove the truth of the matter asserted. Absent
record evidence to the contrary, we presume the jury followed the court’s limiting instructions.
See In re Commitment of Stuteville, 463 S.W.3d 543, 555 (Tex. App.—Houston [1st Dist.] 2015,
pet. denied). Sawyer does not assert there is anything in the record to show the jury ignored the
court’s instructions. We conclude the trial court did not abuse its discretion in determining that
the evidence was admissible and not unfairly prejudicial.
Finally, we note that part of Sawyer’s complaint involves the prosecutor’s closing
statement. Sawyer quotes three parts of the prosecutor’s argument, including “Two experts . . .
say that he suffers from a behavioral abnormality. Two experts that say he is a pedophile.” Sawyer
did not object to the arguments about which he now complains and thus has not preserved any
error in the closing argument for our review. See TEX. R. APP. P. 33.1(a). We overrule Sawyer’s
first issue.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Sawyer contends the evidence is legally insufficient to prove he suffers
from a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Sawyer contends Dr. Reed’s opinion that he suffers from a behavioral abnormality
amounts to no evidence. He maintains her opinion was conclusory and speculative. Sawyer
argues that Dr. Reed was unfamiliar with relevant statistics on the rate of reoffense or chose to
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ignore them. He asserts Dr. Reed’s testimony did not provide any information on his likelihood
to reoffend that jurors could not have determined for themselves.
Because the civil commitment statute requires the State to prove beyond a reasonable doubt
that a person is a sexually violent predator, we review the legal sufficiency of the evidence using
the appellate standard of review for criminal cases. Brown, 2018 WL 947904, at *8. We assess
the evidence in the light most favorable to the verdict to determine whether any rational factfinder
could have found the elements required for commitment beyond a reasonable doubt. Id. “It is the
factfinder’s responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw
reasonable inferences from basic to ultimate facts.” Id. (quoting Stuteville, 463 S.W.3d at 551).
As stated, Sawyer argues that Dr. Reed’s opinions were con201clusory and speculative and
therefore constitute no evidence. Opinion testimony that is wholly conclusory or speculative
amounts to no evidence because it does not tend to make the existence of a material fact more
probable or less probable. In re Commitment of Rogers, No. 05-17-00010-CV, 2018 WL 360047,
at *5 (Tex. App.—Dallas Jan. 11, 2018, pet. filed) (mem. op.). Bare, baseless opinions will not
support a judgment even if there is no objection to their admission in evidence. Id. When a
scientific opinion is admitted in evidence without objection, it may be considered probative
evidence even if the basis for the opinion is unreliable. Id. But if no basis for the opinion is
offered, or the basis offered provides no support, the opinion is merely a conclusory statement and
cannot be considered probative evidence, even if no objection was made. Id.
Sawyer did not object at trial that Dr. Reed’s opinions were unreliable. Thus, to prevail on
his legal sufficiency claim, he must show that the evidence offers no basis to support her opinions.
See id.; In re Commitment of H.L.T., No. 10-17-00106-CV, 2017 WL 4413435, at *4 (Tex. App.—
Waco Oct. 4, 2017, pet. denied). Dr. Reed is a forensic psychologist who has performed more
than sixty evaluations of the type performed in this case. She testified she uses the same
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methodology followed by other experts who do these types of evaluations. In determining that
Sawyer suffers from a behavioral abnormality, Dr. Reed used three risk assessment measuring
tools, the PCL–R, STATIC–99R, and SVR–20. She reviewed many records related to Sawyer,
including documents from his convictions and his prison records, and interviewed him. Dr. Reed
noted that Sawyer is a recidivist with a history of sexually deviant behavior. He was convicted of
three sexual offenses against pre-pubescent children. She diagnosed him with pedophilic disorder
and concluded he is at a low to moderate risk for reoffending. Sawyer denied that he was a
pedophile and instead attributed his behavior to being bored and stressed. Considering all of this
information, Dr. Reed concluded Sawyer suffers from a behavioral abnormality.
After reviewing the record, we conclude it supports Dr. Reed’s opinions and that her
opinions cannot be characterized as wholly conclusory or without any foundation. See Rogers,
2018 WL 360047, at *6. Viewing the evidence in the light most favorable to the verdict, we
conclude that a rational jury could have found, beyond a reasonable doubt, that Sawyer 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. The evidence is legally sufficient to support the
jury’s finding that Sawyer is a sexually violent predator. We overrule Sawyer’s second issue.
In his third issue, Sawyer contends the evidence is factually insufficient to support a finding
that he is a sexually violent predator. We disagree.
Although factual sufficiency has been abandoned in criminal cases, as an intermediate
appellate court with final authority over factual sufficiency challenges in civil cases, we will
perform a factual sufficiency review in civil commitment cases when the issue is raised on appeal.
Brown, 2018 WL 947904, at *8. When conducting a factual sufficiency review in these types of
cases, we consider “whether a verdict that is supported by legally sufficient evidence nevertheless
reflects a risk of injustice that would compel ordering a new trial.” Id. (quoting In re Commitment
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of Dever, 521 S.W.3d 84, 86 (Tex. App.—Fort Worth 2017, no pet.)). We view all of the evidence
in a neutral light to determine whether a jury was rationally justified in finding the defendant is a
sexually violent predator beyond a reasonable doubt. Id. We will reverse only if, after weighing
the evidence, we determine the risk of an injustice remains too great to allow the verdict to stand.
Id. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their
testimony. Id. It is the role of the jury to resolve conflicts and contradictions in the evidence, and
we may not substitute our judgment for that of the jury. Id.
Sawyer contends that it would be unjust to civilly commit him because “almost all of the
evidence against [him] consisted of hearsay,” and because of prejudicial unadjudicated offense
allegations and conclusory psychological generalizations. He also asserts there are many factors
in his favor, including his successful completion of a sex offender treatment program and his lack
of psychopathy. The only significant negative risk factors, according to Sawyer, are related to his
original crimes, which occurred twenty-five years ago and for which he has already been punished.
The evidence is factually sufficient to support the jury’s determination that Sawyer was a
sexually violent predator because it does not reflect a risk of injustice that compels granting a new
trial. See id. at *6. We have overruled Sawyer’s evidentiary issue about hearsay and his argument
that Dr. Reed’s testimony was conclusory. Sawyer has not raised an issue about unadjudicated
offenses. We determined that the evidence is legally sufficient to support the jury’s finding. The
jury heard Dr. Reed’s expert testimony that Sawyer has a behavioral abnormality that makes him
likely to engage in predatory acts of sexual violence. She testified about the risk factors that
increased the likelihood Sawyer would reoffend. Weighing the evidence, we conclude there is not
a risk of injustice too great to allow the verdict to stand. We overrule Sawyer’s third issue.
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We affirm the trial court’s judgment and order of commitment.
/Ada Brown/
ADA BROWN
JUSTICE
170516F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE THE COMMITMENT OF On Appeal from the Criminal District Court
RICKEY LYNN SAWYER No. 4, Dallas County, Texas
Trial Court Cause No. CV1670004.
No. 05-17-00516-CV Opinion delivered by Justice Brown,
Justices Francis and Stoddart participating.
In accordance with this Court’s opinion of this date, the trial court’s judgment and the order
of commitment are AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 11th day of July, 2018.
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