in Re: The Commitment of Jeffery Lee Stoddard ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00364-CV
___________________________
IN RE: THE COMMITMENT OF JEFFERY LEE STODDARD
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. D371-S-13391-16
Concurring and Dissenting Opinion by Justice Walker
CONCURRING AND DISSENTING MEMORANDUM OPINION
I concur with the majority opinion’s holding that the evidence presented at
Appellant Jeffrey Lee Stoddard’s trial for civil commitment as a sexually violent
predator (SVP) is legally sufficient to support the jury’s unanimous finding that
Stoddard is a SVP. I dissent from the majority opinion’s holding that the evidence is
factually insufficient to support the jury’s unanimous finding that Stoddard is a SVP.
See Tex. Health & Safety Code Ann. § 841.003 (West 2017).1
A person is a SVP under the SVP Act if the person (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). The majority
opinion agrees that the evidence is factually sufficient to establish Stoddard meets the
first prong of the statutory definition of a SVP—that he is a “repeat sexually violent
offender” because of his two 2004 convictions from Tarrant County for aggravated
sexual assault of a child under fourteen years of age. 2 See id. § 841.003(a)(1). The
majority reverses the jury’s verdict and the judgment finding Stoddard to be a SVP
based on the alleged factual insufficiency of the evidence to meet the second prong of
the statutory definition of a SVP—that Stoddard suffers from a behavioral
Under the SVP Act, if a judge or jury determines that a person is a SVP, the
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judge must commit the person for treatment and supervision by the Texas Civil
Commitment Office. Tex. Health & Safety Code Ann. § 841.081 (West 2017).
2
Stoddard also had a conviction for possession of child pornography.
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abnormality that makes him likely to engage in a predatory act of sexual violence. Id.
§ 841.003(a)(2).
The terms “behavioral abnormality” and “predatory act” are defined in the
SVP Act. See id. § 841.002(2) (West 2017) (defining behavioral abnormality), .002(5)
(defining predatory act). Under the definitions provided in the SVP Act, 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 “[p]redatory act” is defined by the SVP Act as
“an act directed toward individuals, including family members, for the primary
purpose of victimization.” Id. § 841.002(5).
The court’s charge to the jury incorporated, verbatim, these statutory
definitions. It provided,
The question you will answer in this case is, “Do you find beyond a
reasonable doubt that JEFFERY LEE STODDARD is a sexually violent
predator?”
You are instructed that a person is a “Sexually Violent Predator” for the
purposes of Chapter 841 of the Texas Health and Safety Code if the
person:
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.
A person is a “repeat sexually violent offender” for the purposes of
Chapter 841 of the Texas Health and Safety Code if the person is
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convicted of more than one sexually violent offense and a sentence is
imposed for at least one of the offenses.
“Behavioral Abnormality” means 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.
“Predatory Act” means an act directed toward individuals, including
family members, for the primary purpose of victimization.
“Sexually violent offense” means any of the following offenses:
l. Continuous sexual abuse of a young child or children;
2. Indecency with a child by sexual contact;
3. Sexual assault;
4. Aggravated sexual assault;
5. Aggravated kidnapping, if the person committed the offense
with the intent to violate or abuse the victim sexually;
6. Burglary of a habitation, if the offense is [a] first-degree felony
and the person committed the offense with the intent to
commit:
a. Continuous sexual abuse of a young child or children;
b. Indecency with a child by sexual contact;
c. Sexual assault;
d. Aggravated sexual assault; or
e. Aggravated kidnapping, if the person committed the
offense with the intent to violate or abuse the victim
sexually;
7. Murder or capital murder that is determined beyond a
reasonable doubt to have been based on sexually motivated
conduct;
8. Attempt, conspiracy, or solicitation to commit any of the
offenses listed above; or
9. An offense under prior state law that contains elements
substantially similar to the elements of the offenses listed
above.
Question one asked the jury:
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Do you find beyond a reasonable doubt that JEFFERY LEE
STODDARD is a sexually violent predator?
NO __________________
YES __________________
After hearing the evidence presented at Stoddard’s commitment trial, the jury
unanimously answered “yes,” finding beyond a reasonable doubt that Stoddard was a
SVP.
In reviewing a challenge to the factual sufficiency of the evidence to support an
order of civil commitment as a SVP, we apply the factual sufficiency standard of
review previously applied in criminal cases. In re Commitment of Dever, 521 S.W.3d 84,
86 (Tex. App.––Fort Worth 2017, no pet.) (explaining that the Beaumont Court of
Appeals had done so and that “[w]e therefore will too”). 3 That is, we determine
whether a neutral review of all the evidence, both for and against the finding,
demonstrates that the proof is so obviously weak as to undermine confidence in the
jury’s determination, or the proof, although adequate if taken alone, is greatly
The Beaumont Court of Appeals explained that intermediate appellate courts
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bear a constitutional duty to review challenges to the factual sufficiency of the
evidence in civil cases, such as this one, because the Texas Supreme Court cannot and
explained that, because the State bears the burden of proving the requisites for civil
commitment as a SVP beyond a reasonable doubt, the general civil factual sufficiency
standard is not appropriate. See In re Commitment of Day, 342 S.W.3d 193, 206–13 (Tex.
App.—Beaumont 2011, pet. denied).
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outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.
2000), overruled by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
Only two witnesses testified at Stoddard’s commitment trial: Dr. Tim Proctor
and Stoddard. The following evidence was presented to the jury. Proctor testified for
the State. Proctor is board-certified in psychology, possesses a bachelor’s degree in
psychology, possesses a Ph.D. in clinical psychology from the University of Texas
Southwestern Medical Center, and has completed a postdoctoral fellowship in
forensic psychology from the University of Southern California Institute of Psychiatry
and Law in Los Angeles and a two-year postdoctoral program at Texas A&M in
psychopharmacology. The State walked Proctor through the SVP Act’s definitions of
“behavior abnormality” and “predatory act” and the meaning of the statutory
requirement that, to be committed as a SVP, the behavioral abnormality the person
suffers from must make the person “likely”—which Proctor explained is not a
precise, percentage-point prediction but rather a “qualitative opinion about where
someone’s risk is”—to engage in a predatory act of sexual violence.
Proctor testified that he had conducted a two-hour interview of Stoddard and
had reviewed Stoddard’s deposition, police reports regarding Stoddard, records about
Stoddard’s criminal offenses, records from the prison system, other psychological
evaluations Stoddard has been involved in, victim statements, witness statements, and
the actual child pornography Stoddard was previously convicted of possessing. The
records Proctor reviewed “go back and talk about [Stoddard], I mean, really all the
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way basically to birth. I mean, they mentioned his childhood and his education, and
all that.” Proctor explained that—based on his education, training, and experience;
the materials, documents, and other evaluations of Stoddard that he had reviewed;
and his interview of Stoddard—he had formed the opinion that Stoddard suffers
from a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence.
One of the prior psychological evaluations reviewed by Proctor was made by
Dr. Varela; Dr. Varela also had concluded that Stoddard suffered from a behavior
abnormality.
Proctor testified that Stoddard was not a typical sex offender because his sexual
offense history involves multiple sex offense convictions, multiple victims, and also
child pornography. Proctor explained that Stoddard has pedophilia—meaning that he
is attracted to prepuberty children—and has a lot of antisocial and psychopathic traits,
which means he breaks rules; does not follow through with obligations; and does
things that are impulsive, aggressive, and dishonest. Proctor explained that Stoddard
has a significant history of substance abuse, particularly marijuana and cocaine.
Proctor explained that to understand how a person will conduct himself going
forward in the future, i.e., his risk of reoffending, one has to delve into the person’s
past conduct. He testified that there are two main risk factors pertinent to Stoddard’s
behavior abnormality and that Stoddard possesses both of them:
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One is some type of sexual deviance. In this case[] pedophilia[,] or
[Stoddard is] sexually interested children that are prepuberty. So we’re
not talking about teenagers here. . . . And then the second is an
antisocial lifestyle[,] [which involves] breaking rules, being unstable,
being impulsive. . . . When you have both of those, you’ve got two of
the -- of the most important general risk factors for reoffending.
Concerning Stoddard’s other behaviors demonstrating a likelihood that he will
reoffend—that is, in addition to his sexual deviance of pedophilia, his antisocial and
psychopathic traits, and his significant history of substance abuse—Proctor testified
that Stoddard had exhibited the following:
• A risk of reoffending based on his highly unstable employment history.
• A risk of reoffending based on his lack of a support system.
• A risk of reoffending based on his prior arrests for assaultive conduct.
• A risk of reoffending because a sex offender that has committed an offense
on an unrelated male victim, like Stoddard has, possesses a higher risk of
reoffending.
• A risk of reoffending because Stoddard engaged in grooming or escalation,
where his conduct with the victim escalated; Stoddard first showed seven-
year-old Alice pornographic movies, and he then exposed her to sex and
engaged in sexual activity with her. Stoddard had Alice perform sex on him,
including ejaculating into her mouth, approximately ten or eleven times.
Stoddard required Alice to perform oral sex on him in exchange for food
after she said she was hungry. He fondled her sexual parts, made her fondle
him, and attempted anal sex with her.
• A risk of reoffending because Stoddard began sexually assaulting the seven-
year-old female about one month after he began living in her home.
Proctor said the speed with which Stoddard began his pedophilic acts
against the seven-year-old female was “certainly concerning.”
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• A risk of reoffending because, as we set forth below, Stoddard’s version of
the events differed so dramatically from the victims’ versions; Proctor
explained that these discrepancies demonstrated denial and minimization of
the offenses by Stoddard, which is an assessment measure that shows a risk
of reoffending.
• A risk of reoffending based on the “persistence” of Stoddard’s interest in
child pornography.
• A risk of reoffending because Stoddard failed to demonstrate remorse for
his offenses or empathy with his victims.
• A risk of reoffending based on Stoddard’s lack of progress in the sex
offender treatment program (SOTP).
• A risk of reoffending based on Stoddard’s above-average risk range on the
Static-99 test.
Stoddard’s version of the events was that seven-year-old Alice had told him she
wanted to watch pornographic movies; that he caught her and her brother Bobby
engaging in sexual conduct and told them to stop; and that she was jumping on the
bed naked, causing him to be sexually attracted to her the first time anything
happened.
Stoddard testified at trial that he is at risk for reoffending, that he still believes
seven-year-old Alice wanted to have sex with him, that he does not know why he
engaged in oral sex with Alice while knowing it was wrong, and that his sexual
attraction to children is an ongoing disease. Conversely, Stoddard testified that he is
not attracted to children, and he denied committing any offense against Bobby,
despite his guilty plea to the offense.
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Having conducted a neutral review of all of the evidence, both for and against
the jury’s affirmative finding that Stoddard met the second statutory prong required
for the jury to find that he is a SVP under section 841.003(a)(2), my review of the
evidence does not demonstrate that the proof that Stoddard suffers from a behavioral
abnormality (an “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”)
that makes him likely to engage in a predatory act (“an act directed toward individuals,
including family members, for the primary purpose of victimization”) of sexual
violence is so obviously weak as to undermine confidence in the jury’s affirmative
finding, nor is the proof that Stoddard is a SVP greatly outweighed by contrary proof.
Accordingly, I would hold that factually sufficient evidence exists to support
the jury’s finding that Stoddard meets the statutory definition of a SVP, including the
second prong—that he has a behavioral abnormality that makes him likely to engage
in a predatory act of sexual violence. See In re Commitment of Short, 521 S.W.3d 908, 919
(Tex. App.—Fort Worth 2017, no pet.) (holding evidence factually sufficient to
support jury’s SVP finding); Dever, 521 S.W.3d at 88 (same); Day, 342 S.W.3d at 217
(holding evidence factually sufficient based on experts’ conclusions that appellant was
at risk to reoffend).
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I would therefore overrule Stoddard’s second issue and resolve his third issue
regarding whether the trial court abused its discretion by prohibiting discussion of his
parole prerequisite that required him to complete the SOTP before he would be
released on parole. Because the majority opinion does not, 4 I respectfully dissent.
/s/ Sue Walker
Sue Walker
Justice
Delivered: September 27, 2018
4
In my view, the majority opinion unnecessarily and too heavily relies upon
legislative findings made approximately twenty years ago in connection with the
enactment of the SVP Act in 1999. The legislature’s finding twenty years ago—that at
that time, the size of the group of SVPs was “small”—does not preclude, in my view,
application of the SVP Act to a group that, unfortunately, has grown larger since
1999. Because Stoddard was civilly committed under the Texas SVP Act, I also see
no reason for a discussion—albeit well-written and interesting—of out-of-state laws
and statewide statistics.
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