In Re the Commitment of George Dyer v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-22-00221-CV
IN RE COMMITMENT OF § Appeal from the
GEORGE DYER, § 147th District Court
Appellant. § of Travis County, Texas
§ (TC# D-1-GN-20-007813)
OPINION
BACKGROUND
Appellant George Dyer was found to be a sexually violent predator and was civilly
committed as such in accordance with the Texas Health and Safety Code. 1 See TEX. HEALTH &
SAFETY CODE ANN. §§ 841.003, 841.081. In two issues, Appellant challenges his civil
commitment. We affirm.
Factual Background
Before the filing of the petition to civilly commit Appellant, he was convicted and
sentenced as follows:
1
This case was transferred from our sister court in Travis County, Texas pursuant to the Texas Supreme
Court’s docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the
Third Court of Appeals to the extent it might conflict with our own. See TEX. R. APP. P. 41.3.
• January 12, 1993, in the 33rd District Court of San Saba County, Texas, Sitting as a
Juvenile Court, in Cause No. 191, for the offense of Delinquent Conduct, committed on or
about November 29, 1992, December 4, 1992, and December 9, 1992, and sentenced to 1
year probation.
• October 27, 1994, in the 147th Judicial District Court of Travis County, Texas, in Cause
No. 0943857, for the offense of Aggravated Sexual Assault of a Child, committed on or
about May 26, 1994, and sentenced to 40 years’ confinement in the Texas Department of
Criminal Justice Institutional Division.
• October 27, 1994, in the 147th Judicial District Court of Travis County, Texas, in Cause
No. 0945567, for the offense of Aggravated Sexual Assault of a Child, committed on or
about June 1, 1994, and sentenced to 40 years’ confinement in the Texas Department of
Criminal Justice Institutional Division.
On December 31, 2020, a petition was filed to civilly commit Appellant as a sexually violent
predator and a jury trial was thereafter held.
At trial, the State called two witnesses to testify: Dr. Antoinette McGarrahan and
Appellant. Dr. McGarrahan is a psychologist who specializes in forensic psychology and
neuropsychology. She has conducted around 450 behavioral abnormality evaluations and was
retained by the Texas Department of Criminal Justice (TDCJ) to conduct a behavioral abnormality
evaluation of Appellant. Dr. McGarrahan determined Appellant is a sexually violent predator.
In addition, the State offered the deposition transcript of Geralyn Ann Engman, which was
admitted over Appellant’s objections that the reading of the deposition to the jury was cumulative
evidence, and Ms. Engman was not qualified as an expert. The trial court overruled the objections,
qualified Ms. Engman as an expert, and the deposition transcript was read to the jury. Ms. Engman
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is a licensed psychological associate and was retained by the Special Prosecution Unit to evaluate
Appellant and recommend whether he suffers from a behavioral abnormality. Ms. Engman
determined Appellant is a sexually violent predator.
Procedural Background
The jury unanimously found, beyond a reasonable doubt, that Appellant is a sexually
violent predator, and Appellant was civilly committed. Appellant filed a motion for new trial. This
appeal followed.
DISCUSSION
In Issue One, Appellant challenges the legal sufficiency of the evidence to support beyond
a reasonable doubt that he has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. In Issue Two, Appellant argues the trial court abused its discretion
in admitting the deposition transcript and allowing it to be read to the jury.
LEGAL SUFFICIENCY
Standard of Review
We review sexually violent predator civil commitment proceedings for legal sufficiency of
the evidence using the appellate standard of review applied in criminal cases. In re Commitment
of Short, 521 S.W.3d 908, 911 (Tex. App.—Fort Worth 2017, no pet.). Under the Due Process
Clause of the U.S. Constitution, the State is required to prove every element of the crime charged
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The critical inquiry
in a legal sufficiency challenge is whether the evidence in the record could reasonably support a
conviction of guilt beyond a reasonable doubt. Id. at 319; Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
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When reviewing the legal sufficiency of the evidence, we must view all the evidence in the
light most favorable to the verdict to determine whether any rational juror could have found the
defendant guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v.
State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). A lack of direct evidence is not dispositive
on the issue of the defendant’s guilt; guilt may be established by circumstantial evidence alone.
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We measure the evidence by the
elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State, 303
S.W.3d 331, 333 (Tex. App.—El Paso 2009, no pet.) (citing Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). A hypothetically correct charge accurately sets out the law, is authorized
by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately
describes the offense for which the defendant was tried. Malik, 953 S.W.2d at 240. We bear in
mind the trier of fact is the sole judge of the weight and credibility of the evidence, and we must
presume the factfinder resolved any conflicting inferences in favor of the verdict and we defer to
that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citing Jackson, 443
U.S. at 319). A reviewing court may not reevaluate the weight and credibility of the evidence or
substitute its judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). Our only task under this standard is to determine whether, based on the
evidence and reasonable inferences drawn therefrom, a rational juror could have found the
essential elements of the crime beyond a reasonable doubt. Id.Appellant claims he objected to the admissibility of Dr. McGarrahan’s testimony both pre-
trial and after the close of evidence; however, our review of the record shows no such objection.2
2
Appellant provides the following record citation wherein he claims he objected to Dr. McGarrahan’s testimony:
“(3 R.R. 3-29, 265-267).” However, we find no such objection in the provided page range; moreover, pages 265-267
do not exist in the record. In any case, we have conducted a thorough review of the entire record and did not find an
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Accordingly, we are tasked to disregard the testimony for the first time on appeal as part of the
legal sufficiency review. In re Commitment of King, 657 S.W.3d 16, 27 (Tex. App.—El Paso 2022,
pet. denied). We recognize “that bare, baseless opinions” cannot support a judgment even if no
objection is made to their admission in evidence. City of San Antonio v. Pollock, 284 S.W.3d 809,
816 (Tex. 2009). As such, a challenge to an expert’s conclusion that is conclusory or speculative
may be made for the first time on appeal. See Coastal Transportation Co., Inc. v. Crown Central
Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004). However, when a non-conclusory scientific
opinion is challenged as unreliable, a party must have objected at trial that the evidence is legally
insufficient to support the judgment. Pollock, 284 S.W.3d at 816-17.
Applicable Law
To establish Appellant as a sexually violent predator, the State had to prove he is a repeat
sexually violent offender and has a “behavioral abnormality” that makes him “likely to engage in
a predatory act of sexual violence.” See TEX. HEALTH & SAFETY CODE ANN. § 841.003(a). The
State bears the burden to prove both elements beyond a reasonable doubt. Id. § 841.062(a). As to
the first element, an offender is a repeat sexually violent predator if convicted of more than one
sexually violent offense and a sentence is imposed for at least one of the offenses. Id. § 841.003(b).
Appellant does not challenge this element on appeal.
As to the second element, which Appellant does challenge on appeal, a behavioral
abnormality is defined as “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.
objection to either the admissibility of Dr. McGarrahan’s testimony in general, or to her testimony itself being
misleading, conclusory, speculative, or unreliable.
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§ 841.002(2). A predatory act is defined as “an act directed toward individuals, including family
members, for the primary purpose of victimization.” Id. § 841.002(5).
Analysis
Appellant argues the evidence is legally insufficient to support his civil commitment
because without the testimony of Dr. McGarrahan, no rational factfinder could have found, beyond
a reasonable doubt, that he has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. According to Appellant, Dr. McGarrahan’s testimony was
misleading, conclusory, speculative, and thus, unreliable. More specifically, Appellant mainly
argues Dr. McGarrahan unreliably applied principles and methodologies of forensic science
because her opinion was not based on data that supports her conclusions. Because Appellant did
not object to the reliability of Dr. McGarrahan’s opinion at trial, “we restrict our review of a legal
sufficiency challenge on this ground to determine only whether there is some basis to support the
expert’s opinion, such that the opinion at issue was not conclusory.” King, 657 S.W.3d at 27. We
find Dr. McGarrahan’s opinion that Appellant has a behavioral abnormality was sufficiently
supported and was not conclusory.
Dr. McGarrahan’s resume was admitted into evidence, and she testified she relied on
principles of forensic psychology in her evaluation of Appellant. Dr. McGarrahan defined
behavioral abnormality and explained associated medical terms she used. She stated she has
conducted around 450 behavioral abnormality evaluations over the course of her 20 years of
experience. She then described her methodology of conducting behavioral abnormality
evaluations. In conducting an evaluation, Dr. McGarrahan explained she receives a packet of
records, reviews those records, then conducts an in-person evaluation of the individual. As part of
that evaluation, she conducts a clinical interview and asks the individual about their social
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background—where they grew up, whether they were abused, and their educational background.
She also conducts a mental status examination, in which she asks psychiatric-specific questions
about mental health conditions, while simultaneously making observations of the individual.
Regarding her evaluation of Appellant, Dr. McGarrahan stated she reviewed records,
which included police reports of Appellant’s sexual offenses and non-sexual offenses, judgments
and sentences of Appellant’s prior convictions, witness statements, TDCJ classification records
and disciplinary history, medical history, and Ms. Engman’s deposition. She explained this
information is considered collateral information and is very critical because the individuals at issue
in these types of evaluations may not be completely motivated to present an accurate image of
themselves and she therefore must rely upon the facts and data within the records provided, which
is objective information. Dr. McGarrahan interviewed Appellant for approximately three hours
and she confirmed her evaluation of him was in accordance with her training and the accepted
standards in the field of forensic psychology.
Dr. McGarrahan employed the Static 99R, a sexual risk forensic assessment, and the Hare,
a psychopathy checklist. She explained that these provide information as to the level of risk, what
risk factors are present, what protective factors are present, and how that corresponds to an
individual’s risk in the future, collectively referred to as “risk factors”. According to
Dr. McGarrahan, research has proven that risk factors, if present, raise an individual’s risk to
reengage in the future, which is why she utilizes risk factors in her assessment.
Dr. McGarrahan applied risk factors to Appellant in determining he suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
When asked what top factors led to her conclusion, Dr. McGarrahan answered his sexual deviancy
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and antisocial characteristics. She then went into the facts and details of Appellant’s sexual
offenses.
According to Appellant, the record shows that “much of Dr. McGarrahan’s opinion was
not based on statistical evidence scientifically supporting her recidivism opinion, but in fact
distorted the available research.” For example, Appellant maintains that when asked for the
differences between Appellant and other inmates who, like Appellant, had committed sexual
offenses at a young age and remained in prison for decades, Dr. McGarrahan responded:
Those other individuals matured, they developed insight, they developed remorse,
they took many classes to prepare them for job skills back in the free world, they
held numerous jobs and were stable within the prison system, they received
treatment and understood victim empathy, those sorts of things. Those are not
present for Mr. Dyer. He has repeatedly not shown up to work, failed to obey orders.
He’s not taken -- he has taken his GED test, which is a positive thing, but he’s not
taken any vocational trades to prepare him for the free world. He had no jobs prior
to coming to prison. So those sorts of things are different in the -- and, additionally,
he has not developed victim empathy or understood why he offended or really how
to prevent that in the future.
Appellant complains Dr. McGarrahan did not thereafter support her opinion with research, argues
her “comment on what separates the other sex offenders from Mr. Dyer seems to indicate that this
is her main quibble with him[,]” claims it “makes little sense that the perceived lack of things
learned in treatment supports assigning risk to” Appellant, and Dr. McGarrahan “made it sound as
if [Appellant] was unwilling to work at all.” We disagree.
Appellant seemingly argues that every statement made by an expert must be accompanied
by vocalized supporting research, or a vocalized assertion that research supports the statement.
Dr. McGarrahan reviewed the records before she met with Appellant via TeleMed, evaluated
Appellant for approximately three hours, and observed him throughout. She was free to opine on
Appellant’s personality characteristics and his stability in the prison system based on her
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evaluation and the records she had before her. Dr. McGarrahan thoroughly explained the
methodology she employs in behavioral abnormality evaluations and offered her expert opinion,
based on the methodology she applied, which she confirmed was in accordance with her training
and the accepted standards in the field of forensic psychology. We do not find her comment
conclusory.
Appellant also complains that Dr. McGarrahan’s assessment of his attitude toward his
offenses and victims was based upon an interview that occurred before he successfully completed
a nine-month treatment program. There is also a complaint by Appellant as to Dr. McGarrahan
opining that Appellant had regular treatment as a teenager and despite “receiving treatment to help
him understand victim empathy and to make sure that there are no victims in the future,” he
continued to reoffend. According to Appellant, he denied receiving treatment as a teenager and
Dr. McGarrahan wrongfully relied on information provided by Appellant’s relative that he had
been sent to treatment, which was included in the records she reviewed. 3 Appellant maintains
Dr. McGarrahan’s opinion does not address curriculum and thus, is a “conclusory statement and
condemnation” of Appellant. We disagree.
Appellant began sexually offending when he was around nine or ten years old. Appellant
raped two seven-year-old females, and Dr. McGarrahan testified this was the first indication of
sexual deviancy. Appellant was sixteen when he was caught and punished for committing another
3
The State: And was there anything in the record regarding any kind of counseling at this point?
Dr. McGarrahan: There was a reference that Mr. Dyer’s aunt had indicated that Mr. Dyer -- they sent
him for treatment for this, quote, unquote problem.
The State: And did he then go on to re-offend again after that punishment and counseling?
Dr. McGarrahan: He did.
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sexual offense. Dr. McGarrahan explained this is relevant to the question of behavioral
abnormality because he went on to commit other sexual offenses after being caught and punished;
he raped two seven-year-old siblings—a male and female. Dr. McGarrahan described the field
refers to this as persistence after punishment, which “tends to be a fairly large risk factor. . . despite
the fact that he’s been caught and had negative consequences, he still persisted in engaging in this
behavior again.” He received a year of probation for this. Then, when Appellant was seventeen,
he reoffended again against a three and a five-year-old—the three-year-old was a male whom
Appellant anally raped, and the five-year-old was a female whom Appellant raped vaginally and
anally. As to all these offenses, Dr. McGarrahan testified Appellant denied and minimized his
actions, and referenced the five-year-old girl’s chest by a rather derogatory term. According to
Dr. McGarrahan, this is the objectification of victims, which allows Appellant to see the five-year-
old as more of an equivalent, or an adult, and to him, makes it okay to engage in these behaviors.
Dr. McGarrahan explained this allows the perpetuation of sexual abuse when someone, like
Appellant, does not have the appropriate victim empathy and understanding of the risk to reoffend.
Whether Appellant had successfully completed a nine-month treatment program at the time
Dr. McGarrahan evaluated him does not make her statement conclusory, nor does her reliance on
the record she had before her at the time of her evaluation. Dr. McGarrahan testified Appellant
persisted after punishment, which is an undisputed fact. See King, 657 S.W.3d at 27 (“The opinion
that Appellant had the requisite behavioral abnormality, combined with the undisputed fact that
Appellant had been convicted of multiple sexually violent offenses and was therefore a repeat
violent sexual offender, constitutes legally sufficient evidence to prove beyond a reasonable doubt
that Appellant is an SVP.”). We recognize that expert testimony may not be admitted when “there
is simply too great an analytical gap between the data and the opinion proffered.” In re
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Commitment of Bohannan, 388 S.W.3d 296, 305 (Tex. 2012). We do not find that to be the case
here.
After considering the above information, and in forming her opinion, Dr. McGarrahan
relied on her education, training, experience, the records she reviewed, Appellant’s criminal
history, her examination of Appellant, and applied risk factors and protective factors, diagnoses,
and psychological testing instruments that are the standard in the field, in reaching her conclusion.
We find the record supports some basis for Dr. McGarrahan’s opinion and her opinion is not
conclusory. See King, 657 S.W.3d at 27.
For these reasons, we find Dr. McGarrahan’s opinion legally sufficient to support the jury’s
finding. Issue One is overruled.
EVIDENTIARY CHALLENGE
Standard of Review
We review the trial court’s evidentiary rulings for an abuse of discretion. In re Commitment
of Hull, No. 13-17-00378-CV, 2019 WL 3241883, at *8 (Tex. App.—Corpus Christi July 18,
2019, pet. denied). An abuse of discretion occurs when a trial court fails to follow guiding rules
and principles. Id. Reversal is warranted only if the error probably caused the rendition of an
improper judgment. Id. In making this determination, we evaluate the entire case, considering the
role the evidence played in the context of the trial. Id.Applicable Law
A diagnosis is not required to commit a person as a sexually violent predator. In re
Commitment of Cordova, 618 S.W.3d 904, 911 (Tex. App.—El Paso 2021, no pet.). The Texas
Civil Commitment of Sexually Violent Predators Act (the Act), does not prescribe the
qualifications an expert must have to opine on whether an individual is a sexually violent predator.
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In re Commitment of Bohannan, 388 S.W.3d at 303. Medical and psychiatric testimony, a
constitutional prerequisite for committing a person of unsound mind, is not required in sexually
violent predator proceedings. Id. at 304. Accordingly, the Texas Constitution does not prohibit
evidence from an expert who is not a physician in a sexually violent predator commitment
proceeding. Id. As the Texas Supreme Court has articulated, “[a]bsent more specific statutory
direction, we apply the general rule, which is that an expert must be qualified ‘by knowledge, skill,
experience, training, or education’ to ‘assist the trier of fact to understand the evidence or to
determine a fact in issue.’” Id.
Analysis
Appellant argues the trial court abused its discretion in admitting the deposition transcript
of Ms. Engman. More specifically, Appellant maintains the trial court erred in admitting the
deposition transcript because Ms. Engman had not been qualified in the deposition as an expert,
which according to Appellant, is required. Appellant does not provide authority in support of his
contentions, nor are we aware of any. We find the trial court did not abuse its discretion in
admitting the deposition transcript of Ms. Engman.
According to Appellant, “[s]ince, in a civil case, testimony by deposition is always
admissible, regardless of the witnesses’ availability, the idea that all civil litigants can avoid
qualifying their experts by admitting only questioning by the opposing party is ludicrous.” The
State intended to offer Ms. Engman, but offered her deposition transcript instead due to her being
ill and thus unavailable to testify the morning of trial. Her unavailability as a witness is not a
requirement for admissibility. See TEX. R. EVID. 801(3). In any case, Ms. Engman’s resume
provides she has a bachelor’s degree in psychology and a master’s degree in clinical psychology.
She is a licensed psychological associate, sex offender treatment provider, and professional
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counselor. Ms. Engman has over twenty years of experience in treating and evaluating sex
offenders. In the TDCJ, she managed the sex offender treatment program, assisted in the civil
commitment review process, and has also provided court testimony in civil commitment hearings.
She also has experience supervising and training clinical staff.
The deposition at issue is about fifty pages long. In the deposition, Ms. Engman stated
about “99 percent” of her work is comprised of working with sex offenders, and most of her
evaluations are for the purposes of treatment and risk assessment, and a small percentage of work
focuses on forensic evaluations. Her clinical work involves treating sex offenders and sexual
disorders. Ms. Engman was among the first in the field to conduct behavioral abnormality
evaluations.
Regarding Appellant, Ms. Engman was retained by the Special Prosecution Unit to
evaluate him and recommend her opinion as to whether he has a behavioral abnormality.
Ms. Engman reviewed over 600 pages of records and employed the Static-99R, the Hare, utilized
risk factors as part of her methodology, and evaluated Appellant herself via the TeleMed system.
These are all the same methods Dr. McGarrahan employed. Ms. Engman identified several risk
factors that Dr. McGarrahan also identified in Appellant: lack of concern for others, intimacy
deficits, deviant sexual interests, impulsive acts, poor coping mechanisms/poor cognitive problem
solving, callousness, and poor self-regulation. Throughout her deposition, Ms. Engman thoroughly
defined and explained the associated medical terms she used in her assessment of Appellant.
Ms. Engman made clear she did not diagnose Appellant, but rather, made diagnostic
recommendations; what she does is review, then provides recommendations for the physician to
help consider in their review and determination. She hypothesized that Appellant has pedophilic
disorder and an antisocial personality disorder, and she explained the requirements for each and
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why she recommended the diagnoses. She believed Appellant is at a high risk to sexually reoffend
against children and has a high level of psychopathic traits that contribute to his likelihood of
reoffending. Ms. Engman ultimately concluded Appellant suffers from a behavioral abnormality
that makes him likely to engage in predatory acts of sexual violence.
At trial, the State sought to admit and read into evidence the deposition transcript of
Ms. Engman. Appellant objected that the reading of the deposition was cumulative evidence, and
Ms. Engman was not qualified as an expert. The State responded it is a consideration of one’s
knowledge, training, and experience that allows for expert qualification, not the type of license
one holds. The State then informed the trial court of Ms. Engman’s experience and qualifications.
The trial court asked whether the facts as to her experience and qualifications was within the
deposition transcript. The State confirmed it was and relayed what was contained in the deposition
transcript as to Ms. Engman’s experience and qualification, and argued the defense had the
opportunity to qualify and cross examine her as it was the defense who noticed and deposed her.
The State emphasized to the trial court that Ms. Engman’s resume was one of the exhibits admitted
at her deposition and is the same resume the State sought to admit at trial to qualify Ms. Engman
as an expert. The trial court confirmed this. The State then walked the trial court through the
deposition transcript, confirming that in her deposition, Ms. Engman discussed her qualifications,
education, and experience. The trial court ultimately overruled the objections, qualified
Ms. Engman as an expert, and the deposition transcript was read to the jury.
The Texas Supreme Court has clarified, “[t]he test is whether the offering party [has]
establish[ed] that the expert has knowledge, skill, experience, training, or education regarding the
specific issue before the court which would qualify the expert to give an opinion on that particular
subject.” Id. (internal quotation marks omitted). As the offering party, the State established
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Ms. Engman’s knowledge, skill, experience, and training. Moreover, the deposition transcript
itself also establishes Ms. Engman’s knowledge, skill, experience, and training. Ms. Engman’s
opinion assisted the trier of fact to determine the fact at issue—whether to civilly commit Appellant
because he suffers from a behavioral abnormality that makes him likely to engage in a predatory
act of sexual violence.
Accordingly, we hold the trial court did not abuse its discretion in admitting the deposition
transcript of Ms. Engman and allowing it to be read to the jury. Issue Two is overruled.
CONCLUSION
For these reasons, we affirm.
YVONNE T. RODRIGUEZ, Chief Justice
June 23, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
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