in Re: The Commitment of Kevin Joe Mumford ( 2020 )

REVERSE and REMAND; Opinion Filed March 31, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00186-CV
IN RE THE COMMITMENT OF KEVIN JOE MUMFORD
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. CV 1870001
MEMORANDUM OPINION
Before Justices Myers, Schenck, and Carlyle
Opinion by Justice Myers
Kevin Joe Mumford appeals the trial court’s judgment adjudging him to be a
sexually violent predator and civilly committing him pursuant to the Civil
Commitment of Sexually Violent Predators Act. See TEX. HEALTH & SAFETY CODE
ANN. §§ 841.001–.153. Appellant brings six issues on appeal. Appellant contends
the trial court erred by admitting into evidence the curriculum vitae and
Multidisciplinary Report of Dr. Darrell Turner after excluding the State’s expert
witness from testifying. Appellant also contends the evidence is legally and
factually insufficient to support the jury’s finding that appellant has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
We conclude the trial court erred by admitting Dr. Turner’s report, and we reverse
the trial court’s judgment and remand the cause for further proceedings.
BACKGROUND
Appellant has three convictions for sexual offenses. In 2008, appellant
pleaded guilty with a plea bargain to two charges of indecency with a child and was
sentenced to two years’ imprisonment in each case. Appellant testified the
complainants, his nieces aged nine and eleven years old, said he touched their breasts
and genitals over their clothes. Appellant testified he did not commit the offenses
and that he pleaded guilty to get out of jail sooner. In 2013, three years after his
release from prison, appellant was arrested for touching his fifteen-year-old daughter
inappropriately. The daughter made an outcry that appellant had touched her breasts
and genitals. She also made an outcry that appellant told her to touch his penis if
she wanted to use a cell phone. The daughter reported she had been abused in this
manner for several years. Appellant testified he did not commit the offense, but he
pleaded guilty and was sentenced to eight years’ imprisonment.
In 2018, the State filed a petition requesting that appellant be found to be a
sexually violent predator and that he be committed pursuant to the Sexually Violent
Predator Act. Appellant was examined by Dr. Darrell Turner, who concluded in a
report that appellant “does suffer from a behavioral abnormality that makes him
likely to engage in future acts of predatory sexual violence.” (Emphasis omitted.)
The State planned to have Dr. Randall Price testify at the trial. However, the State
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failed to designate Dr. Price timely in its discovery responses, and the trial court
excluded Dr. Price from testifying. The trial court admitted Dr. Turner’s curriculum
vitae (CV) and report into evidence over appellant’s objection. Although Dr. Turner
had not been designated as an expert witness in the case, and the trial court barred
the State from calling Dr. Turner to testify, he was present at the trial, and the trial
court stated appellant could call him to cross-examine him concerning his report.
At the trial, appellant was the only witness who testified before the jury. The
jury found beyond a reasonable doubt that appellant is a sexually violent predator.
The trial court accepted that finding and ordered that appellant be civilly committed
upon his release from prison.
SEXUALLY VIOLENT PREDATOR ACT
In a suit to commit a person as a sexually violent predator, the State must
prove beyond a reasonable doubt that the person (i) is a “repeat sexually violent
offender” and (ii) “suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” TEX. HEALTH & SAFETY
CODE §§ 841.003(a), 841.062(a); see also id. § 841.002(8) (defining “sexually
violent offense”).
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).
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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 “an act directed toward individuals, including family
members, for the primary purpose of victimization.” Id. § 841.002(5).
SUFFICIENCY OF THE EVIDENCE
In his fourth issue, appellant contends the evidence is legally insufficient to
support the jury’s finding that appellant has a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence. In reviewing appeals from the
commitment of persons determined to be sexually violent predators, we use the
criminal test for legal sufficiency. In re Commitment of Brown, No. 05-16-01178-
CV, 2018 WL 947904, at *8 (Tex. App.—Dallas Feb. 20, 2018, no pet.) (mem. op.).
Thus, we review the evidence in the light most favorable to the verdict to determine
whether any rational factfinder could have found the required elements beyond a
reasonable doubt. Id. It is the factfinder’s responsibility to resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from basic to
ultimate facts. Id. We consider all the evidence admitted before the fact finder,
including improperly admitted evidence. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013).
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Appellant argues the evidence is legally insufficient to support the jury’s
finding that he is a sexually violent predator because the only evidence that he had
a behavioral abnormality was Dr. Turner’s report and the trial court erred by
admitting it. Because we use the criminal standard of review for sufficiency of the
evidence, we consider “all evidence in the record of the trial, whether it was
admissible or inadmissible.” Id. (quoting Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999)). Therefore, we include Dr. Turner’s report in our review
of the evidence.
Appellant argues that even if we consider Dr. Turner’s report, the evidence is
still insufficient to prove beyond a reasonable doubt that appellant has a behavioral
abnormality. In the report, Dr. Turner included a summary of his findings:
Mr. Mumford is a sexual offender with three minor female victims.
Two of the victims were his nieces and one was his biological daughter.
He denied all offenses today, and engaged in victim blame. He has a
relatively unremarkable non-sexual criminal offense history, and has
relatively few disciplinary infractions while incarcerated on the instant
offense, and these two factors serve in a protective nature. The fact that
he has not offended against males or outside of his family also act[s] as
factors that hold his level of risk at baseline. Acting as a risk factor is
the offender[’]s lack of remorse and denial, as well as his offending
against a victim as young as 9 and as old as 15 (increasing potential
victim pool). Also germane to the offender’s overall risk is the fact that
he seems to have been evaluated for a behavioral abnormality prior to
his release on his incarceration due to the offending against his nieces.
He was not committed, and he ultimately reoffended against his own
daughter. In fact, he was required to register as a sex offender when he
reoffended against his daughter. Additionally, the offending against his
daughter was alleged by the victim to have been ongoing for many
years. He does not consider himself to be a sex offender, and he does
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not feel that he is in need of sex offender treatment. Additionally, the
offender has a history of serious abuse of methamphetamine.
The two most robust predictors of sexual recidivism, especially when
coexisting, are anti sociality and sexual deviance. There is evidence of
sexual deviance given the repeated offending against female children,
two of three were pre-pubescent, over a period of time. His degree of
psychopathy is only moderate, and this is not uncommon among child
molesters. He reports no evidence of childhood conduct disordered
behavior, but he has an unstable adult lifestyle and evidences antisocial
features in his overall stability and interpersonal affective style. He
denies his offenses and subsequently denies any possible negative
impact he has had on his victims. His most recent offense occurred in
2013, meaning that he has offended relatively recently and while close
to his current age (which mitigates the protective nature of his age from
an actuarial standpoint). His Static 99R score is low and this is
protective but is seriously mitigated by the chronology of his offending
and prior Static 99R score.
In sum, based upon the records reviewed, the clinical interview, and
testing conducted, taking all variables into consideration and using a
clinically-adjusted actuarial approach, it is the opinion of the
undersigned that Mr. Mumford represents a high risk for sexual re-
offense and DOES suffer from a behavioral abnormality that makes
him likely to engage in future acts of predatory sexual violence.
Appellant argues that the evidence conclusively establishes that he does not
have a behavioral abnormality. Appellant points out that Dr. Turner states appellant
has a history of methamphetamine abuse but does not say whether appellant was
using methamphetamine at the time of the offense or whether that increased or
decreased appellant’s risk of reoffending. Appellant asserts that Dr. Turner’s
statement that a moderate level of psychopathy is “not uncommon among child
molesters” is extremely speculative. Appellant also points to the report’s statement
that he had a low Static 99R score as evidence of lack of behavioral abnormality.
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The report does not, as appellant asserts, conclusively establish appellant’s
lack of a behavioral abnormality. Instead, the report provides Dr. Turner’s findings
supporting his conclusion that appellant “suffer[s] from a behavioral abnormality
that makes him likely to engage in future acts of predatory sexual violence.”
(Emphasis omitted.) Those findings include his denial and lack of remorse for the
offenses, the ages of the victims, the short period of time following his release until
he reoffended against his daughter, his lack of sex-offender treatment in prison, and
his belief that he does need sex-offender treatment.
After considering all the evidence, we conclude a reasonable juror could have
found beyond a reasonable doubt that appellant suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
We overrule appellant’s fourth issue.
ADMISSIBILITY OF DR. TURNER’S REPORT
In his first issue, appellant contends the trial court erred by admitting Dr.
Turner’s CV and expert report into evidence under the business-records exception
to the prohibition against the admission of hearsay evidence. See TEX. R. EVID.
803(6). That rule provides that if the other requirements are met, the evidence is to
be admitted if “the opponent fails to demonstrate that the source of information or
the method or circumstances of preparation indicate a lack of trustworthiness.” Id.
Documents prepared in anticipation of litigation generally lack the trustworthiness
necessary for admission under Rule 803(6). See Ortega v. Cach, LLC, 396 S.W.3d
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622, 630 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Appellant argues Dr.
Turner’s report was prepared in anticipation of litigation and, therefore, was not
admissible as a business record.
The State argues that appellant did not object to the admission of the report
on the ground that it was prepared in anticipation of litigation. We disagree. After
jury selection and before opening statements, the trial court held a hearing outside
the presence of the jury to consider the parties’ motions in limine and admission of
the parties’ exhibits. The State objected to appellant’s ninth motion in limine, which
sought to have the trial court prohibit the State from any “attempt to convey to the
jury in any manner . . . [a]ny mention of a behavioral abnormality assessment or the
results of a behavioral assessment not performed by the testifying expert.” The
prosecutor told the court that the State intended to introduce Dr. Turner’s report as
a business record. Appellant’s attorney then said, “Your Honor, it’s the
Respondent’s position that the business record intended to be offered by Petitioner
is clearly prepared in anticipation of litigation.” The trial court ruled that the motion
in limine was not applicable because there was not a testifying expert witness. The
trial court then considered the admissibility of the State’s exhibits. When the State
offered Dr. Turner’s report into evidence, appellant objected:
The Respondent would renew our previous objections, that it is not
proper under Texas Rules of Evidence, 803. It’s a violation of the
statutory rights of confrontation under 8410613 [sic; presumably Texas
Health & Safety Code § 841.061(d)(3)], a violation of his due process
rights. We object again because it—it’s just being used to bolster his
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records. And, essentially, he’s on the stand testifying, but the records
will be testifying for him as an expert. We object to that, Your Honor.
(Emphasis added). The trial court admitted the report over appellant’s objections.
For appellant’s objection to have been sufficient, it must have been
sufficiently specific “to make the trial court aware of the complaint.” TEX. R. APP.
P. 33.1(a)(1)(A). During the discussion of appellant’s motion in limine, the
prosecutor said the report would be offered as a business record, and appellant’s
counsel said the report was prepared in anticipation of litigation. Even though the
admissibility of the report was not the precise matter before the trial court when
appellant made the objection, it was relevant to the discussion of the motion in
limine. It appears from the record that appellant made his objection to the exhibit a
short time later. Appellant’s objection renewing his previous objection should have
been close enough in time for the trial court to be aware that appellant was objecting
to the admission of the report as a business record on the ground that it had been
prepared in anticipation of litigation. Accordingly, we conclude this objection was
preserved for appellate review.
We next consider whether the report was prepared in anticipation of litigation.
The report states that Dr. Turner’s forensic evaluation of appellant “was conducted
pursuant to request from the Texas Department of Criminal Justice under the
authority of the Texas Health and Safety Code, Title 11, Section 852 [sic].” There
is no section 852 in Title 11 of the Health and Safety Code, but the heading of Title
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11 is “Civil Commitment of Sexually Violent Predators.” The report also states the
reason appellant was referred to Dr. Turner:
Mr. Kevin Mumford is a 44-year-old male who was referred by the
TDCJ Civil Commitment Multidisciplinary Team for a forensic
psychological evaluation to assist in the determination as to whether or
not the offender has a behavioral abnormality that makes him likely to
engage in future predatory acts of sexual violence.
Under Title 11, if a person is serving a sentence for a sexually violent offense, may
be a repeat sexually violent offender, and is within twenty-four months of being
released from incarceration, the Texas Department of Criminal Justice gives notice
to a multidisciplinary team. HEALTH & SAFETY § 841.021. The multidisciplinary
team then makes an assessment of “whether the person is likely to commit a sexually
violent offense after release.” Id. §§ 841.022(c)(1), .023(a). In making that
assessment, the Texas Department of Criminal Justice “shall use an expert to
examine the person” and “may contract for the expert services required by this
subsection.” Id. § 841.023(a). “If as a result of the assessment the Texas Department
of Criminal Justice believes that the person suffers from a behavioral abnormality,”
the Department must give notice to the State’s attorney. Id. § 841.023(b). The
State’s attorney may then file “a petition alleging that the person is a sexually violent
predator.” Id. § 841.041. If the trier of fact “determines that the person is a sexually
violent predator, the judge shall commit the person for treatment and supervision.”
Id. § 841.081(d). Because the report states it was prepared pursuant to a referral
from a multidisciplinary team under Title 11, the report was prepared in anticipation
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of litigation over whether appellant should be committed as a sexually violent
predator.
The State argues the report was not prepared in anticipation of litigation
because Dr. Turner interviewed appellant on October 10, 2017, which was more than
three months before the State filed its petition to commit appellant on January 16,
2018. The report’s only purpose was to determine whether to seek commitment of
appellant, which could be achieved only by bringing this suit. See id. § 841.023.
The State argues a person may be civilly committed under the Act solely on
documentary evidence, citing section 841.061(e): “The attorney representing the
state may rely on the petition filed under Section 841.041 and supplement the
petition with documentary evidence or live testimony.” Id. § 841.061(e) (emphasis
added). That provision does not purport to set aside the rules of evidence and civil
procedure. Instead, the Act provides those rules apply except as modified by the
Act. See id. § 841.146(b). No provision of the Act purports to set aside the rule
against the admission of hearsay evidence except as permitted by the rules. Nor does
any provision of the Act set aside the requirement that documents admitted under
the business-records exception to the hearsay rule be trustworthy.
We conclude Dr. Turner’s report demonstrates that the circumstances of its
preparation indicate a lack of trustworthiness because it was prepared in anticipation
of litigation. Therefore, the trial court abused its discretion by admitting the report
into evidence.
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Although we have determined that the trial court erred by admitting the report,
we may not reverse the trial court’s judgment unless we determine the error probably
caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a). In this case,
Dr. Turner’s report was the only evidence that appellant “suffers from a behavioral
abnormality that makes the person likely to engage in a predatory act of sexual
violence.” Without evidence to support that finding, the jury could not have found
appellant was a sexually violent predator. See HEALTH & SAFETY § 841.003(a)(2).
Accordingly, we conclude the trial court’s admission of Dr. Turner’s report over
appellant’s objection was reversible error. Having determined the admission of the
report was reversible error, we need not address whether the trial court erred by
admitting Dr. Turner’s CV into evidence.
We sustain appellant’s first issue. Having sustained the first issue, we need
not consider appellant’s remaining issues.
CONCLUSION
We reverse the trial court’s judgment and remand the cause to the trial court
for further proceedings.
/Lana Myers/
LANA MYERS
JUSTICE
190186F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE THE COMMITMENT OF KEVIN On Appeal from the Criminal District Court
JOE MUMFORD No. 4, Dallas County, Texas
Trial Court Cause No. CV 1870001.
No. 05-19-00186-CV Opinion delivered by Justice Myers.
Justices Schenck and Carlyle participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
It is ORDERED that appellant Kevin Joe Mumford recover his costs of this appeal from
appellee The State of Texas.
Judgment entered this 31st day of March, 2020.
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