in Re the Commitment of K.H. ( 2020 )

Affirmed and Opinion filed August 13, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00043-CV
IN RE THE COMMITMENT OF K.H.
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 93308-CV
OPINION
Following a jury trial, the trial court signed a final judgment ordering
appellant’s civil commitment under Chapter 841 of the Health and Safety Code.
Appellant challenges the trial court’s judgment in three issues, contending that the
court erred by (1) directing a verdict in the State’s favor that appellant was a repeat
sexually violent offender; (2) excluding evidence of the underlying facts for one of
appellant’s convictions; and (3) refusing to submit a verdict form authorizing a
verdict in appellant’s favor by a 10-2 vote. We affirm.
I. DIRECTED VERDICT
In his first issue, appellant contends that the trial court erred by granting the
State’s directed verdict that appellant was a “repeat sexually violent offender”
under Chapter 841 based on the trial court’s conclusion that appellant’s out-of-state
convictions were “substantially similar” to a Texas “sexually violent offense.”
A. Standard of Review and General Legal Principles
Under Chapter 841, if a fact finder determines that a person is a “sexually
violent predator,” the judge shall commit the person for treatment and supervision
until the person is no longer likely to engage in a predatory act of sexual violence.
See Tex. Health & Safety Code § 841.081(a). A person is a “sexually violent
predator” 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).
A person is a “repeat sexually violent offender” if the person has been
convicted of more than one “sexually violent offense” and a sentence has been
imposed for at least one of the offenses. See id. § 841.003(b). A “sexually violent
offense” includes certain listed offenses in Texas—including sexual assault and
indecency with a child by contact—and any offense under the law of another state
that contains “elements substantially similar to the elements” of a listed Texas
offense. See id. § 841.002(8)(A), (G); see also Tex. Penal Code §§ 21.11(a)(1),
22.011.
A trial court may grant a partial directed verdict that a person is a repeat
sexually violent offender if there is no probative evidence raising a fact issue to the
contrary. In re Commitment of Harris, 541 S.W.3d 322, 330 (Tex. App.—Houston
[14th Dist.] 2017, no pet.).
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B. Test for Substantial Similarity
Although commitment proceedings are civil in nature, to determine whether
a non-Texas offense contains “elements substantially similar to the elements” of a
listed Texas offense, Texas appellate courts have applied the tests used by the
Court of Criminal Appeals for determining whether a non-Texas offense may be
used for punishment enhancement. See In re Commitment of Ratliff, No. 05-16-
01425-CV, 2018 WL 3829264, at *3 (Tex. App.—Dallas Aug. 13, 2018, no pet.)
(mem. op.); In re Commitment of Williams, No. 02-17-00133-CV, 2018 WL
771962, at *3 (Tex. App.—Fort Worth Feb. 8, 2018, no pet.) (mem. op.); In re
Commitment of Cleaveland, No. 09-12-00428-CV, 2014 WL 4364263, at *4 (Tex.
App.—Beaumont Sept. 4, 2014, pet. denied) (mem. op.).
Last year, the Court of Criminal Appeals altered the test for determining
whether offenses are “substantially similar” for purposes of enhancement. See
Fisk v. State, 574 S.W.3d 917, 924–25 (Tex. Crim. App. 2019) (overruling in part
Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013), and Prudholm v. State,
333 S.W.3d 590 (Tex. Crim. App. 2011)). The court held that offenses are
substantially similar if there is a “high degree of likeness” between the elements of
both offenses. Id. at 923. Substantial similarity does not require that a person
guilty of a crime under a foreign law would also be guilty under a Texas law. Id.
at 922–23.
Appellant contends that this court should eschew Fisk and consider
additional factors discussed in Anderson and Prudholm, including the “interests
protected by the offenses and their relative seriousness.” See id. at 923. Fisk
expressly rejected consideration of those factors. See id. at 923–25. This court has
applied Fisk in the context of determining whether a person was required to
register as a sex offender based on a conviction for an out-of-state offense that
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contained elements substantially similar to an enumerated Texas offense. See Tex.
Dep’t of Pub. Safety v. Fowle, 581 S.W.3d 417, 418–19 (Tex. App.—Houston
[14th Dist.] 2019, no pet.). The language in all three statutes is similar. See Tex.
Health & Safety Code § 841.002(8) (sexually violent offense for civil commitment
is “an offense under the law of another state . . . that contains elements
substantially similar to the elements of an offense” in Texas); Tex. Penal Code
§ 12.42(c)(2)(B)(v) (punishment enhancement for prior conviction of an offense
“under the laws of another state containing elements that are substantially similar
to the elements of an offense” in Texas); Tex. Code Crim. Proc. Art. 62.001(5)(H)
(reportable conviction for sex offender registration includes a conviction for “a
violation of the laws of another state . . . for or based on the violation of an offense
containing elements that are substantially similar to the elements of an offense” in
Texas).
When construing a statutory word or phrase, we may consider the meaning
assigned to the language elsewhere in another act of similar nature, and we may
give the same meaning to language that has been used in similar statutes unless
something indicates that a different meaning was intended. See Robertson v.
Odom, 296 S.W.3d 151, 157 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Although the commitment, sex-offender registration, and punishment enhancement
statutes serve different functions, the provisions regarding substantial similarity of
offenses serve a similar goal of providing comity to non-Texas convictions for
sexual offenses. Thus, we see no reason to deviate from the interpretation of the
Court of Criminal Appeals and this court in similar contexts. We will apply the
test announced by the high court in Fisk and applied by this court in Fowle.
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C. Analysis
Appellant does not dispute that before he was convicted in Texas of sexually
assaulting a child—a sexually violent offense—he was convicted in Oregon of
three counts of sexual abuse in the third degree under a former version of Section
163.415 of the Oregon Revised Statutes. Appellant does not dispute that if one of
those Oregon offenses is substantially similar to the Texas offense of indecency
with a child by contact—a sexually violent offense—then the trial court could
direct a verdict that appellant was a “repeat sexually violent offender” as a matter
of law. Appellant contends that none of the Oregon convictions was for an offense
substantially similar to indecency with a child by contact.
We begin by comparing the relevant statutes:
Oregon Law Texas Law
(1) A person commits the crime of (a) A person commits an offense if,
sexual abuse in the third degree if the with a child younger than 17 years of
person subjects another person to age, whether the child is of the same or
sexual contact and: opposite sex and regardless of whether
(a) The victim does not consent to the the person knows the age of the child at
sexual contact; or the time of the offense, the person:
(b) The victim is incapable of consent (1) engages in sexual contact with the
by reason of being under 18 years of child or causes the child to engage in
age. sexual contact[.]
Act of July 18, 1995, 68th Leg., R.S., . . .
ch. 671, § 9, 1995 Or. Laws ch. 671 (c) In this section, “sexual contact”
(Westlaw) (codified as amended at Or. means the following acts, if committed
Rev. Stat. § 163.415). with the intent to arouse or gratify the
“Sexual Contact” means any touching sexual desire of any person:
of the sexual or other intimate parts of (1) any touching by a person,
a person or causing such person to including touching through clothing,
touch the sexual or other intimate parts of the anus, breast or any part of the
of the actor for the purpose of arousing genitals of a child; or
or gratifying the sexual desire of either (2) any touching of any part of the
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party. body of a child, including touching
Act of Aug. 16, 1999, 70th Leg., R.S., through clothing, with the anus,
ch. 949, § 1, 1999 Or. Laws ch. 949 breast, or any part of the genitals of a
(Westlaw) (codified as amended at Or. person.
Rev. Stat. § 163.305(6)).1 Tex. Penal Code § 21.11.
Here, the charging instrument admitted as an exhibit alleged that, for one of
the three counts under which appellant was convicted, appellant knowingly
subjected A.B., “a person under the age of 18 years, to sexual contact by touching
her genitalia, a sexual or intimate part of [A.B.]” Appellant testified at trial that
A.B. was his girlfriend when she was fourteen years old and he was eighteen years
old, and that he rubbed his hands on A.B.’s vagina.
Appellant contends that this court should not consider the specific conduct
appellant committed under the Oregon statutes, citing Anderson, 394 S.W.3d at
536. Although the Anderson court noted generally that the substantial-similarity
test does not focus on “the specific conduct that was alleged,” the court
acknowledged that “sometimes, the specific conduct, as well as the elements, must
be considered.” Id. at 536 n.21. The Fisk court distinguished Anderson on the
ground that there was no evidence in the Anderson record to prove the elements of
the prior conviction. Fisk, 574 S.W.3d at 920 (considering testimony and
documentary evidence to determine substantial similarity).
When, as here, the State has proven the nature of the previous conviction,
we do not analyze the entirety of the other state’s statutory scheme for substantial
1
Under Oregon case law, “sexual or other intimate parts” includes genitalia, breasts, and
“whatever anatomical areas the trier of fact deems ‘intimate’ in the particular cases which arise.”
State v. Woodley, 760 P.2d 884, 886 (Or. 1988) (quotation omitted). To be “intimate” a body
part “must be subjectively intimate to the person touched, and either known by the accused to be
so or to be an area of the anatomy that would be objectively known to be intimate by any
reasonable person.” Id. at 887.
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similarity. Id. at 922. “That kind of analysis is necessary only if the record fails to
prove the nature of the previous conviction.” Id. (concluding that that the non-
Texas statute’s criminalization of bestiality and sodomy between consenting adults
was “irrelevant” because the record showed that the defendant’s prior conviction
was for the sodomy of a child under the age of sixteen, which was substantially
similar to Texas’s offense of sexual assault). Thus, we reject appellant’s
contention that the offenses were not substantially similar because the Oregon
statute also criminalizes non-consensual sexual contact with adult victims, or
because the Oregon courts have applied a broad definition of “intimate parts”
compared to the specific body parts identified in Section 21.11 of the Penal Code
(i.e., anus, breast, or genitals). Moreover, the one-year age difference between the
Oregon statute (eighteen) and Texas statute (seventeen), does not defeat substantial
similarity in this case. See id. at 923.
Considering the testimony and documentary evidence in this case, one of
appellant’s Oregon convictions for sexual abuse required proof that appellant
touched the genitals of a child with the intent to arouse or gratify the sexual desire
of any person. The elements of this offense, as alleged and proven in this record,
display a high degree of likeness to the elements of the Texas offense of indecency
with a child by contact. Thus, the offenses are substantially similar for purposes of
Chapter 841. Cf. Castle v. State, 402 S.W.3d 895, 902–03, 906–08 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (reasoning that Louisiana’s sexual battery
statute, which criminalized non-consensual touching of the genitals of an adult as
well as “consensual” touching of the genitals of a child under the age of fifteen,
displayed a high degree of likeness to Texas’s indecency with a child statute; but
reversing the judgment because there was no evidence in the record that the
allegations underlying the Louisiana conviction involved a child under the age of
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fifteen, so the court could not conclude that the offense for which the defendant
was convicted contained elements substantially similar to indecency with a child).
Appellant has not identified any probative evidence raising a fact issue on
whether he is a “repeat sexually violent offender” under Chapter 841.
Accordingly, the trial court did not err by directing a verdict for the State on this
issue.
Appellant’s first issue is overruled.
II. EXCLUSION OF EVIDENCE
In his second issue, appellant contends that the trial court erred by excluding
his cross-examination of the State’s forensic psychologist concerning “peripheral
facts” underlying his Texas conviction for sexual assault of a fourteen-year-old
girl. Appellant sought to attack the psychologist’s opinion that appellant had a
behavioral abnormality that made appellant likely to engage in a predatory act of
sexual violence. Appellant made an offer of proof through the psychologist to
establish that (1) the complainant had brought appellant alcohol on at least one
occasion; and (2) a Brazoria County assistant district attorney recorded in their
notes that the complainant “looked much older than she was” and “was very well-
developed.” The trial court sustained the State’s objection that the evidence would
mislead the jury, confuse them, and be an impermissible collateral attack on the
judgment of conviction.
We assume without deciding that the trial court erred. See In re
Commitment of Dunsmore, 562 S.W.3d 732, 739–40, 742–43 (Tex. App.—
Houston [1st Dist.] 2018, no pet.) (trial court abused its discretion by preventing
the defendant from adducing facts underlying the conviction to challenge the
expert’s opinion that the defendant suffered from a behavioral abnormality that
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made him likely to engage in a predatory act of sexual violence). We will evaluate
the alleged error for harm.
A. Legal Principles for Harmless Error
“The exclusion of evidence is reversible error if the complaining party
shows that the trial court committed error that probably caused the rendition of an
improper judgment.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 812 (Tex.
2010); see also Tex. R. App. P. 44.1(a). In making this determination, we review
the entire record. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870
(Tex. 2009). The role that the excluded evidence played in the context of the trial
is important. Id. If the excluded evidence was crucial to a key issue, the error is
likely harmful. Id. But if the evidence was cumulative or the rest of the evidence
at trial was so one-sided that the error likely made no difference in the judgment,
then the error is likely harmless. Id.
B. The Record Evidence
Through the State’s expert, a forensic psychologist, the jury heard evidence
of appellant’s long history of sexual conduct with young girls. The psychologist
testified that he reviewed records indicating that a thirteen-year-old appellant
touched a six-year-old girl’s bare vaginal area with his hand. The girl tried to stop
appellant, and he said, “I don’t have to,” and persisted. A police report indicated
that appellant confessed. In an Oregon juvenile court, appellant admitted to an
allegation of sexual harassment; the court dismissed an allegation of sexual abuse.
Although appellant told the forensic psychologist that “it didn’t happen,” appellant
told another doctor that the touching was accidental while appellant roughhoused
with the girl. Appellant told the doctor that appellant wanted to have sex with the
girl.
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Appellant was placed on juvenile probation. He violated probation by
missing sex offender treatment appointments, being dishonest with staff, and
threatening family members. His probation was extended until he was eighteen
years old. During his sex offender treatment, he admitted to fondling ten other
thirteen- and fourteen-year-old girls. The psychologist testified, “[O]n multiple
occasions with each of them, him putting his hands on them, on their buttocks or
on their breasts and doing so without their permission or them agreeing.”
Appellant later told the psychologist that he did not do it and that he was coached
into confessing.
Appellant’s juvenile probation was terminated when he turned eighteen
years old; he never completed the sex offender treatment. Within a year, appellant
pleaded guilty to the three counts of sexual abuse discussed above. The three
counts alleged that appellant touched the breasts and buttocks of one girl (C.E.)
and the genitalia of A.B. Appellant was eighteen years old at the time; both girls
were fourteen years old. As part of appellant’s plea, the court dismissed four other
counts of sexual abuse, which alleged that appellant touched the genitalia of A.B.,
the buttocks and breasts of another fifteen-year-old girl, and the buttocks of
another fourteen-year-old girl. The psychologist reviewed records indicating that
that two additional girls alleged sexual offenses against appellant, but no charges
were filed.
Appellant testified that A.B. was his girlfriend at the time, and he admitted
to rubbing her vagina. Although the psychologist reviewed documents in which
appellant admitted to penetrating A.B.’s vagina with his finger and having A.B.
touch his penis, appellant denied the conduct to the psychologist. The psychologist
reviewed records indicating that appellant touched C.E.’s breast under her bra and
her buttocks about forty times. He told her, “I’ll do what I want.” When appellant
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was interviewed in the prison system in Texas, he denied touching C.E. sexually
but also said that they engaged in horseplay and that “he liked her and that he was
pushing things to see how far it would go sexually.” For example, appellant would
tell C.E. that he liked her and he would gauge her reaction; he told C.E. that he
wouldn’t mind being with her sexually.
For the sexual abuse convictions, appellant was placed on five years’
probation. While on probation in Oregon, appellant was sanctioned for multiple
violations of congregating with minors. He was found with a sixteen-year-old
runaway. He was found to be baby-sitting minors and living with minors. There
were allegations that he had made children smoke marijuana and threatened to kill
them if they would not do it. Ultimately, he failed to appear for court, and a
warrant was issued for his arrest. He was never arrested, however, because he
absconded from Oregon and moved to Texas.
Appellant continued to violate the law in Texas. He was arrested for public
intoxication and convicted of felony and misdemeanor thefts. When appellant was
twenty-five years old, he sexually assaulted a fourteen-year-old girl (L.B., no
relation to A.B.) in Brazoria County. At the time, he had been dating L.B.’s forty-
eight-year-old aunt. The psychologist reviewed records indicating that appellant
had L.B. perform oral sex on him, he performed oral sex on her, and he “had
vaginal intercourse with her, including reaching orgasm while inside her vagina.”
He pleaded guilty and was placed on deferred adjudication probation. Appellant’s
probation was revoked after he failed to do his community service, pay fees, and
complete a sex offender evaluation; and he was charged with possession of a
firearm by a felon and family-violence assault. Appellant was convicted of the
family-violence assault. At trial, he admitted to squeezing his girlfriend’s neck
with his hands. Appellant’s guilt was adjudicated for the sexual assault, and he
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was sentenced to six years’ confinement in prison. He was in prison at the time of
this commitment trial.
Appellant had told the psychologist that “nothing sexual happened” with
L.B. At trial, appellant denied sexually assaulting L.B. He felt like he did not do
“anything wrong” to L.B.
The psychologist testified that appellant had not taken responsibility for any
of the sexual offenses for which he had been convicted, except for admitting to at
least some sexual contact with A.B. Some of appellant’s conduct would be
classified as “sexually deviant” because not only did appellant offend against
children who could not legally consent, but some of appellant’s sexual acts were
performed without the children’s permission.
Based in part on appellant’s criminal history and appellant’s failure to take
responsibility for most of his sexual offenses, the psychologist diagnosed appellant
with antisocial personality disorder at the level of psychopathic personality. The
psychologist explained, “[M]ost people would say that he is a psychopath.” The
psychologist acknowledged that when appellant was eighteen years old, other
psychologists had compared him to an age equivalence of about fifteen.2 The
psychologist opined that appellant’s emotional and volitional capacity have been
affected by a behavioral abnormality. The psychologist testified that appellant had
serious difficulties controlling his behavior because of his personality.
The psychologist noted that appellant had an increased risk for reoffending
sexually. One of the strongest indicators for recidivism is when a person like
appellant is caught, convicted, and punished, and then reoffends.
2
Nothing in the record indicates appellant’s “age equivalence” at the time of trial or
when he sexually assaulted L.B.
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C. Analysis
Although the psychologist’s opinion of appellant’s behavioral abnormality
was a key issue at trial, the excluded evidence was not “crucial” to a key issue.
Nothing at trial suggested that the psychologist’s opinion of appellant’s behavioral
abnormality would change if L.B. looked and acted older than fourteen. Appellant
had a long history of sexual conduct with young girls, some of it without the girls’
permission. The psychologist’s opinion of appellant’s behavioral abnormality was
based not only on the fact that appellant committed multiple sexual offenses
against children, but also that appellant failed to take responsibility for his conduct.
With L.B., for example, appellant denied doing anything sexual, despite his
conviction for sexually assaulting her.3
The psychologist relied on an abundance of information to form the opinion
that appellant suffered from a behavioral abnormality, including records detailing
multiple convictions and allegations involving sexual conduct with young girls,
appellant’s deposition, another doctor’s evaluation of appellant, and the
psychologist’s own evaluation of appellant. See In re Commitment of Dunsmore,
562 S.W.3d 732, 739, 743 (Tex. App.—Houston [1st Dist.] 2018, no pet.)
(harmless error from the exclusion of the defendant’s testimony that he only
pleaded guilty because he had been “roughed up” by police and that one of the
victims had made a false allegation about finding pornography on his computer;
noting the substantial evidence supporting the psychologist’s opinion that the
defendant suffered from a behavioral abnormality).
3
Moreover, appellant’s denial of sexual conduct with L.B. was inconsistent with the
defensive theory that appellant sought to further with evidence that L.B. was “well developed”—
that appellant had sex with L.B. because L.B. appeared and acted like she was of legal age.
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Considering the entire record, the exclusion of evidence that one of
appellant’s victims acted and appeared older than her age did not probably cause
the rendition of an improper judgment. The error, if any, was harmless. See id.
Appellant’s second issue is overruled.
III. JURY CHARGE
In his third issue, appellant contends that the trial court erred by overruling
his request to instruct the jury that it could find appellant was not a sexually violent
predator by a vote of 10-2 and by not providing such a verdict form.
The Supreme Court of Texas resolved this issue while this appeal was
pending. Although a unanimous verdict is required to find that a person is a
sexually violent predator, only ten votes are necessary to reach a verdict declining
to find that a person is a sexually violent predator. In re Commitment of Jones, No.
19-0260, 2020 WL 3393468, at *3 (Tex. June 19, 2020) (per curiam). Thus, the
trial court erred. See id.
However, because the jury unanimously found that appellant was a sexually
violent predator, the error did not probably cause the rendition of an improper
judgment. See id. at *5. The error was harmless. See id.
Appellant’s third issue is overruled.
IV. CONCLUSION
All of appellant’s issues are overruled. The trial court’s judgment is
affirmed.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Wise, and Zimmerer.
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