in Re Commitment of Barry Scott Cleaveland

• Court: Court of Appeals of Texas
• Decided: September 4, 2014
• Docket: 09-12-00428-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00428-CV ____________________

IN RE COMMITMENT OF BARRY SCOTT CLEAVELAND

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-01-00209 CV ________________________________________________________ _____________

MEMORANDUM OPINION

Barry Scott Cleaveland appeals from an order of commitment, rendered by

the trial court based on a jury’s finding that Cleaveland is a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2013). In four issues,1 Cleaveland challenges (1) whether legally sufficient

evidence supports the judgment; (2) whether factually sufficient evidence supports

1 After Cleaveland’s brief was filed, counsel for Cleaveland notified the Court that Cleaveland had decided to abandon his fifth issue. Cleaveland’s fifth issue asserts the trial court erred by refusing two of the questions that Cleaveland asked the trial court to submit to the jury. 1 the judgment; (3) whether the trial court erred by granting the State’s motion for

directed verdict, which asserted that it had conclusively proven that Cleaveland

had previously been convicted of more than one sexually violent offense; and (4)

whether the trial court erred by excluding some of the testimony of his expert

witness, a psychologist. Because the trial court did not err in rendering judgment

based on the evidence and did not err by excluding the opinions of Cleaveland’s

expert, we affirm the trial court’s judgment.

Motion for Directed Verdict

Background

First, we address issue three of Cleaveland’s appeal because it is dispositive

of Cleaveland’s first three issues. In issue three, Cleaveland contends the trial court

should have denied the State’s motion for directed verdict on the question of

whether he had previously been convicted of more than one sexually violent

offense. Under the SVP statute, “[a] person is a repeat sexually violent offender for

the purposes of [the SVP statute] if the person is convicted of more than one

sexually violent offense and a sentence is imposed for at least one of the

offenses[.]” Tex. Health & Safety Code Ann. § 841.003(b) (West Supp. 2013). As

defined by the SVP statute, the term “repeat sexually violent offender” requires the

State to show that the person it is seeking to commit for treatment is a repeat

2 sexually violent offender, and that the person suffers “from a behavioral

abnormality that makes the person likely to engage in a predatory act of sexual

violence.” Id. § 841.003(a) (West Supp. 2013).

According to the State, the evidence admitted during Cleaveland’s trial

conclusively established he had previously been convicted of two “sexually violent

offenses” under the SVP statute. The State relies on evidence admitted during the

trial concerning Cleaveland’s conviction for criminal sexual contact of a minor, an

offense that Cleaveland committed in 1987 in New Mexico. The State also relies

on the evidence admitted during the trial concerning Cleaveland’s conviction for

indecency with a child (by contact), an offense that Cleaveland committed in 1997

in Texas. After Cleaveland rested, and relying on the evidence related to these two

convictions, the State moved for a directed verdict on the issue of whether the

evidence admitted during trial showed that Cleaveland had previously committed

more than one “sexually violent offense.” It is undisputed that each of

Cleaveland’s offenses involved a crime that Cleaveland committed against a child.

In his appeal, Cleaveland does not complain that his 1997 offense for

indecency with a child, by contact, is not a sexually violent offense for the

purposes of the SVP statute. Instead, Cleaveland challenges whether his 1987 New

Mexico offense is a “sexually violent offense” for the purposes of the SVP statute.

3 See Tex. Health & Safety Code Ann. § 841.002(8)(G) (West Supp. 2013) (defining

“sexually violent offense” to include “an offense under the law of another state,

federal law, or the Uniform Code of Military Justice that contains elements

substantially similar to the elements of an offense listed in Paragraph (A), (B), (C),

(D), or (E)”).

The question of whether the New Mexico offense is a “sexually violent

offense” requires that we determine whether the New Mexico statute authorizing a

conviction for criminal sexual contact of a minor is substantially similar to a Texas

offense that constitutes a “sexually violent offense” under the SVP statute. Id.

Based on the facts that led to his New Mexico conviction for criminal sexual

contact of a minor, Cleaveland argues that the offense is not substantially similar to

indecency with a child by contact, an offense that he agrees is a “sexually violent

offense” for SVP purposes.

The factual circumstances in the record regarding Cleaveland’s conviction

for criminal sexual contact in New Mexico were limited. Based on Cleaveland’s

response in the SVP case to a request for admission, the record shows that during

Cleaveland’s 1987 offense he “bit the child on the buttocks.” Given the limited

development of the circumstances that led to his 1987 conviction, Cleaveland

argues that his conviction for having bitten a child on the buttocks does not qualify

4 under the SVP statute as a “sexually violent offense.” According to Cleaveland,

had such conduct occurred in Texas, it would only allow him to be convicted of

injuring a child, an offense that Cleaveland argues is not a “sexually violent

offense” under the SVP statute. See id. § 841.002(8) (West Supp. 2013) (defining

“sexually violent offense” to include offenses other than injury to a child); Tex.

Penal Code Ann. § 22.04 (West Supp. 2013) (injury to a child). Cleaveland further

notes that a conviction under Texas law for indecency with a child by contact, a

qualifying “sexually violent offense” under the SVP statute, requires proof that the

defendant touched the child’s anus, breast, or any part of the child’s genitals, or

that the defendant touched any part of the body of a child with his anus, breast, or

any part of his genitals. See Tex. Penal Code Ann. § 21.11(a)(1), (c) (West 2011).

Comparing the evidence required to convict under the elements of the New Mexico

statute and the evidence required to convict under the elements of the Texas injury

to a child statute, and given the evidence at trial regarding the circumstances that

led to his conviction of criminal sexual contact of a minor under New Mexico law,

Cleaveland concludes that the State failed to show that he is a repeat sexually

violent offender under the SVP statute. See Tex. Health & Safety Code Ann. §

841.003(b).

5 Standard of Review

Cleaveland’s third issue challenges the trial court’s decision to grant the

State’s motion for directed verdict. Under Texas law, a directed verdict is proper

when no evidence of probative force raises a fact issue on a material question at

issue under the moving party’s pleadings. Szczepanik v. First S. Trust Co., 883

S.W.2d 648, 649 (Tex. 1994). On appeal, a ruling on a motion for directed verdict

is reviewed using a legal sufficiency standard. City of Keller v. Wilson, 168 S.W.3d

802, 823 (Tex. 2005).

The dispute between the State and Cleaveland concerns whether the

Legislature intended for an offense of the type Cleaveland committed in New

Mexico to qualify as a predicate “sexually violent offense” for purposes of

commitment proceedings brought by the State under the SVP statute. As an issue

of statutory construction, the matters Cleaveland raises in his third issue present

legal questions that appellate courts review using a de novo standard. See Tex. W.

Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); see also MCI Sales

& Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010); Ex parte White, 211

S.W.3d 316, 318 (Tex. Crim. App. 2007).

In determining legislative intent, we presume “that: (1) compliance with the

constitutions of this state and the United States is intended; (2) the entire statute is

6 intended to be effective; (3) a just and reasonable result is intended; (4) a result

feasible of execution is intended; and (5) public interest is favored over any private

interest.” Tex. Gov’t Code Ann. § 311.021 (West 2013). The words and phrases

found in a statute “shall be read in context and construed according to the rules of

grammar and common usage[,]” and those “that have acquired a technical or

particular meaning, whether by legislative definition or otherwise, shall be

construed accordingly.” Id. § 311.011 (West 2013). In construing a statute, we

consider the “(1) object sought to be attained; (2) circumstances under which the

statute was enacted; (3) legislative history; (4) common law or former statutory

provisions, including laws on the same or similar subjects; (5) consequences of a

particular construction; (6) administrative construction of the statute; and (7) title

(caption), preamble, and emergency provision.” Id. § 311.023 (West 2013).

In construing a statute, a court’s primary objective “is to determine and give

effect to the Legislature’s intent.” Tex. Dep’t of Ins. v. Am. Nat’l Ins. Co., 410

S.W.3d 843, 853 (Tex. 2012). An unambiguous statute is interpreted according to

its plain meaning when read as a whole. State ex rel. State Dep’t of Highways &

Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When the Legislature

decides to enact a particular statute, we also presume that it did so “with

7 knowledge of the background law and with reference to it.” City of Round Rock v.

Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013).

Analysis

The SVP statute requires that a person, before being civilly committed, be

shown to have committed more than one sexually violent offense. See Tex. Health

& Safety Code Ann. § 841.003(a), (b). The statutory definition of “sexually violent

offense” includes “(A) an offense under Section . . . 21.11(a)(1), . . . Penal Code;”

and “(G) an offense under the law of another state . . . that contains elements

substantially similar to the elements of an offense listed in [Section

841.002(8)(A).]” Id. § 841.002(8).

In analyzing whether the statutes on which the parties rely are substantially

similar, Cleaveland and the State rely on cases from the Court of Criminal Appeals

evaluating similarities and differences between certain Texas statutes and the

statutes of other states where out-of-state convictions were used to enhance the

defendant’s sentence. Under those circumstances, a court evaluating a substantial

similarity issue is to compare the elements of the law in the other state to a Texas

statute that describes a similar offense to determine whether the elements that are

described by the two statutes display a high degree of likeness. Prudholm v. State,

333 S.W.3d 590, 592-93, 596, 599 (Tex. Crim. App. 2011) (comparing sexual

8 battery under California law to aggravated kidnapping and sexual assault under

Texas law). However, in analyzing statutes used to enhance a defendant’s

sentence, the elements of the respective statutes may be less than identical and

need not parallel one another precisely to support the conclusion that the two

statutes describe substantially similar offenses. Anderson v. State, 394 S.W.3d 531,

535 (Tex. Crim. App. 2013).

Generally, in evaluating similarity, a Texas court evaluating whether a

conviction from another state is based on a substantially similar statute is to

consider the elements of the offense, not the specific conduct the defendant is

alleged to have committed when he violated the statute. Id. at 536. In this type of

comparative analysis, two statutes may display a high degree of likeness even if an

element of the out-of-state offense can be proven by a fact that would be

insufficient to prove the respective element under the Texas statute. Outland v.

State, 389 S.W.3d 346, 347 (Tex. Crim. App. 2012). The statutes must also be

substantially similar regarding the individual or public interests protected and the

impact of the elements on the seriousness of the offenses. Prudholm, 333 S.W.3d

at 595. If the statute’s purpose is to prevent a similar danger to society, a court then

evaluates whether the two offenses are substantially similar in class, in degree, and

9 with regard to the punishment ranges the two statutes allow. Anderson, 394 S.W.3d

at 536.

With respect to the New Mexico statute at issue,2 Cleaveland attached the

text of the New Mexico penal statute for “Criminal sexual contact of a minor” to

his brief. See Tex. R. Evid. 202. Section 30-9-13 defines “Criminal sexual contact

of a minor” as “the unlawful and intentional touching of or applying force to the

intimate parts of a minor or the unlawful and intentional causing of a minor to

touch one’s intimate parts.” See N.M. Stat. Ann. § 30-9-13(A) (LexisNexis 2012).

“For the purposes of this section, ‘intimate parts’ means the primary genital area,

groin, buttocks, anus or breast.” Id.

Although the parties reach opposite conclusions regarding whether the

statutes at issue are similar, the briefs the parties filed compare section 30-9-13 of

New Mexico’s criminal laws with the provisions of section 21.11 of the Texas

Penal Code, which contains the elements for the offense of indecency with a child

(by contact). Under the Texas Penal Code, a person commits the offense of 2 We have utilized the text of the 2012 version of the New Mexico Statute, section 30-9-13, as that is the version of the statute that Cleaveland attached to his appendix to support the arguments he advances in his brief. Although section 30-9- 13 was amended after 1987, he has not argued that the elements of the offense materially changed from the date that he violated the statute. According to the State, as enacted in 1975, section 30-9-13 included the requirement that the improper contact with the minor be shown to have been committed by a person “other than one’s spouse[.]” 10 “indecency with a child by contact” “if, with a child younger than 17 years of age,

whether the child is of the same or opposite sex, the person . . . engages in sexual

contact with the child or causes the child to engage in sexual contact[.]” See Tex.

Penal Code Ann. § 21.11(a)(1). Section 21.11(c) defines “‘sexual contact’” to

mean “any touching by a person, including touching through clothing, of the anus,

breast, or any part of the genitals of a child[] or [] any touching of any part of the

body of a child, including touching through clothing, with the anus, breast, or any

part of the genitals of a person[,]” “if committed with the intent to arouse or gratify

the sexual desire of any person[.]” Id. § 21.11(c).

Cleaveland argues these two statutes are dissimilar because the New Mexico

statute includes parts of the body that the Texas statute does not. We note,

however, that both section 30-9-13 and section 21.11 criminalize touching a child’s

anus, breast, or genitals. See id. Nevertheless, the New Mexico statute provides a

somewhat larger zone of intimacy, as it criminalizes touching a child’s groin or

buttocks, while section 21.11 of the Texas Penal Code does not. Compare N.M.

Stat. Ann. § 30-9-13, with Tex. Penal Code Ann. § 21.11. While New Mexico’s

Legislature has chosen to protect a somewhat larger zone of intimacy than the zone

11 protected by section 21.11, under both statutes the victim must be a child. 3 Thus,

although the statutes protect somewhat different intimate parts and differ in the age

of the class of persons protected, these differences are not substantial. Both statutes

criminalize touching various intimate parts of a child’s body for sexual purposes.

Cleaveland also argues that the statutes are dissimilar because they differ

regarding the mens rea the State is required to prove to gain a conviction.

According to Cleaveland, section 21.11 is a specific intent statute, which requires

the actor to commit the prohibited conduct with the intent to gratify a sexual desire,

while section 30-9-13 is a general intent statute, which does not require the State to

show that the actor intended to gratify a sexual desire. Compare N.M. Stat. Ann. §

30-9-13, with Tex. Penal Code Ann. § 21.11(c).

We disagree that New Mexico has interpreted section 30-9-13’s intent

requirement in the way that Cleaveland describes. See State of New Mexico v.

Osborne, 808 P.2d 624, 630 (N.M. 1991). Under section 30-9-13, the actor’s

conduct must be shown to be “unlawful” and “intentional[.]” N.M. Stat. Ann. § 30-

9-13(A). Based on the requirement that the actor’s conduct must be “unlawful,”

New Mexico juries are instructed they must find that “the defendant acted in a

manner calculated to arouse or gratify sexual desire, or which otherwise intruded 3 Under the two statutes, there are also slight differences regarding the age a person is considered to be a child. 12 upon the child’s bodily integrity or personal safety.” Osborne, 808 P.2d at 630.

The Osborne Court suggested that trial courts utilize the following instruction for

that purpose:

In addition to the other elements of Criminal Sexual Contact of a Minor, the State must prove beyond a reasonable doubt that the behavior was unlawful. For the behavior to have been unlawful it must have been done in a manner calculated to arouse or gratify sexual desire, or otherwise to intrude upon the bodily integrity or personal safety of [the victim]. Criminal Sexual Contact of a Minor does not include a touching for purposes of [reasonable medical treatment or] nonabusive [parental or] custodial child care.

Id. at 631. With respect to mens rea, we conclude that the respective statutes the

parties have compared are substantially similar. Compare N.M. Stat. Ann. § 30-9-

13, with Tex. Penal Code Ann. § 21.11.

Based on the differences already discussed, Cleaveland suggests that the

public interests protected by the respective statutes are dissimilar. Citing Tex. Dept.

of Public Safety v. Anonymous Adult Tex. Resident, Cleaveland argues that section

30-9-13 encompasses a markedly different range of conduct than Texas Penal

Code section 21.11(a)(1). See 382 S.W.3d 531, 538 (Tex. App.—Austin 2012, no

pet.). While the body parts where touching is prohibited under section 30-9-13 is

slightly broader than Texas Penal Code section 21.11, both statutes encompass

similar ranges of conduct that involve intimate contact with a minor, and both

protect children from sexual contact by adults. The New Mexico and Texas statutes 13 are directed at the same individual and public interests, protecting the public from

such conduct and protecting the child’s interest in his or her personal security. See

Outland, 389 S.W.3d at 347-49 (noting that Utah’s sexual exploitation of a minor

statute and Texas’s child pornography statute are directed at the same individual

and public interests, protecting children from sexual exploitation and the public

from the dissemination of child pornography).

Cleaveland also argues that the conduct he admitted to committing in his

New Mexico case, biting a child on the buttocks, would not be considered a sexual

offense had he committed that same conduct in Texas. According to Cleaveland, a

complaint that a person bit a child on the buttocks could result in several possible

charges under Texas law, all for non-sexual offenses, such as injury to a child,

assault, or aggravated assault. See Tex. Penal Code Ann. §§ 22.01, 22.04(a) (West

Supp. 2013), § 22.02 (West 2011). However, although Cleaveland argues that we

should focus on his admitted conduct of biting the child on the buttocks, the

substantial similarity analysis used in criminal cases generally requires that a court

consider the elements of the respective offenses, not the specific conduct the

defendant is alleged to have committed. See Anderson, 394 S.W.3d at 536.

Relying on Tex. Dept. of Public Safety v. Garcia, Cleaveland suggests that

courts do not always focus on the elements of an offense in determining whether

14 two statutes are substantially similar. 327 S.W.3d 898, 906-07 (Tex. App.—Austin

2010, pet. denied). He notes that in some cases, courts have looked to the

defendant’s specific conduct in analyzing whether two statutes are substantially

similar. Id. In Garcia, the Austin Court of Appeals noted that the Oregon statutory-

rape statute was substantially similar to the corresponding Texas statute, except

that the Oregon statute applied to consensual sex with persons under eighteen

while the Texas statute applied only to consensual sex with persons under

seventeen. Id. In Garcia, it was undisputed that Garcia’s girlfriend was seventeen

and the charged conduct would not be criminal under Texas law. Id. Under those

facts, the Austin Court of Appeals concluded that the two statutes were not

substantially similar for purposes of determining whether Garcia had a duty to

register under the sex offender registration statute. Id.; see Lawrence v. Texas, 539

U.S. 558, 578 (2003) (distinguishing the State’s interest in protecting children from

the lack of legitimate state interest in regulating sexual conduct between

consenting adults).

We conclude that the exception discussed in Garcia does not apply to

Cleaveland’s case. Unlike the circumstances in Garcia, Cleaveland’s conduct—

biting a child on the buttocks—is a crime in both states. And, in Cleaveland’s case,

the question is whether the Legislature intended to include the type of conduct

15 Cleaveland was convicted of committing in New Mexico available to be used to

show that the person has a behavioral abnormality that he has repeatedly

demonstrated an inability to control.4 In contrast, the issue in Garcia concerned

whether the Legislature intended to allow the State to use Garcia’s conviction in

Utah based on conduct that Texas treats as legal to enhance Garcia’s sentence for

another crime he committed in Texas.

When reviewing sentence enhancements in criminal cases, courts comparing

statutes for substantial similarity also consider similarities and differences in the

respective statutes as they relate to the classes of defendants the two statutes

include, the degree of the severity of the crimes the statutes describe, and the

punishment ranges for the crimes under the statutes being compared. Anderson,

394 S.W.3d 537. In Texas, Indecency with a Child by Contact is a second degree

felony, an offense that carries a punishment range of two to twenty years of

imprisonment. See Tex. Penal Code Ann. § 21.11(a)(1), (d); see also id. § 12.33 4 As we discuss in addressing issue four, there is evidence in the trial record that the incident that resulted in Cleaveland’s conviction for criminal sexual contact of a minor included contact by Cleaveland with the child’s genitals. The New Mexico indictment was neither in evidence nor was it read to the jury, but during Cleaveland’s offer of proof, Dr. Marisa Mauro indicated that the indictment alleged that Cleaveland unlawfully and intentionally touched or applied force to the intimate parts of a three-year-old child, but she did not specify the manner and means of that contact. Because it is not necessary to our resolution of issue three, we need not decide whether Cleaveland’s New Mexico conviction was based on the mouth-to-genital contact or mouth-to-buttocks contact. 16 (West 2011). When committed on a child under age thirteen, as was Cleaveland’s

New Mexico victim, an offense under section 30-9-13 is either a second or third

degree felony. See N.M. Stat. Ann. § 30-9-13(B)(1), (C)(1).5 Under New Mexico’s

laws, if the criminal sexual contact occurred on a part of the child’s body that was

unclothed, the offense is a second degree felony, but if the contact occurred on a

part of the child’s body that was clothed, the offense is a third degree felony. Id.

An offender convicted of criminal sexual contact of a minor in New Mexico

receives a six year or a fifteen year sentence, depending upon whether the child

was clothed or unclothed, while an offender convicted of indecency with a child

(by contact) in Texas receives a punishment that may range from two to twenty

years, as determined by the finder-of-fact. Compare N.M. Stat. Ann. § 31-18-

15(5), (8), with Tex. Penal Code Ann. § 12.33(a).

5 Neither Cleaveland nor the State compares the classification and punishment ranges for the Texas and New Mexico offenses to determine whether they are substantially similar. Anderson, 394 S.W.3d at 536. Because Cleaveland asked this Court to take judicial notice of the current version of the New Mexico offense and he did not provide the Court copies of any prior versions of section 30- 9-13, we consider the version of the statute that he provided in his brief. However, he did not provide the Court with information regarding the punishment ranges available in New Mexico. Section 31-18-15(A)(5) requires a fifteen year term of imprisonment for a second degree felony for a sexual offense against a child. See N.M. Stat. Ann. § 31-18-15(A)(5) (LexisNexis 2013); see also id. § 30-9-13(B)(1). Section 31-18-15(A)(8) requires a six year term of imprisonment for a third degree felony for a sexual offense against a child. See N.M. Stat. Ann. § 31-18-15(A)(8) (LexisNexis 2013); see also id. § 30-9-13(C)(1). 17 While the punishment schemes that relate to the statutes at issue are not

identical, the dissimilarities in punishment are not significant given the object of

the SVP statute, the circumstances under which it was enacted, and the statute’s

legislative history. 6 See Tex. Gov’t Code Ann. § 311.023. The SVP statute serves

dual interests: (1) the State’s power of parens patriae, which allows it to care for

its citizens who, due to emotional disorders, are unable to adequately care for

themselves; and (2) the State’s police power, which allows the State to protect the

community from the dangerous tendencies of those who lack volitional control

over certain dangerous behaviors. See In re Commitment of Fisher, 164 S.W.3d

637, 651 (Tex. 2005). Through long-term supervision and treatment, the SVP

statute addresses the risk of repeated predatory behavior by persons suffering from

behavioral abnormalities not amenable to traditional mental illness treatment

modalities. See Tex. Health & Safety Code Ann. § 841.001 (West 2010). The

Legislature intended, through the SVP statute, to prevent repeated predatory 6 Before the Legislature enacted the SVP statute, there were no prior statutes or common law provisions that authorized the State to seek the civil commitment of an otherwise mentally competent individual who had committed more than one prior sexually violent crime. See generally In re Commitment of Fisher, 164 S.W.3d 637, 641-42 (Tex. 2005). Additionally, the parties have not relied on any consequences of a particular construction, any administrative provisions that relate to the SVP statute’s reference to substantially similar out-of-state statutes, or any relevant provisions that relate to the SVP’s title, preamble, or emergency provisions as such may relate to the construction of this part of the statute. See Tex. Gov’t Code Ann. § 311.023 (West 2013). 18 behavior by providing sex offender treatment to persons who are afflicted with

such a difficulty in controlling their behaviors that they are predisposed to sexual

violence, and thereby represent a menace to the health and safety of others. See id.

§ 841.002(2) (West Supp. 2013). While the terms of the sentences available under

the respective statutes are not highly similar, the differences are not sufficiently

dissimilar to cause us to conclude that the Legislature did not intend to include the

crime that Cleaveland was convicted of committing in New Mexico from serving

as a prior conviction of a sexually violent crime under the SVP statute.

Concerning the public interests that are at stake, the Legislatures in both

New Mexico and Texas treat convictions under the respective statutes as

convictions that require the defendant to thereafter register as a “sex offender.” See

N.M. Stat. Ann. §§ 19-11A-1; 29-11A-3(I)(3); 31-21-10.1(I)(3) (LexisNexis

2013); Tex. Code Crim. Proc. Ann. arts. 62.001(5)(A), (6)(A); 62.101(a)(1) (West

Supp. 2013). For the purpose of gaining meritorious deductions on a sentence,

New Mexico considers the offense of criminal sexual contact of a minor to be a

“‘serious violent offense[.]’” See N.M. Stat. Ann. § 33-2-34(L)(4)(g) (LexisNexis

2013). When a person is sentenced in a New Mexico court to prison for criminal

sexual contact of a minor in the second or third degree, the court must include in

the judgment a provision requiring the offender to serve an indeterminate period of

19 supervised parole for a period of not less than five years and up to the natural life

of the sex offender. See id. § 31-21-10.1(A)(2). In New Mexico, the parole board

may order a sex offender to participate in an outpatient or inpatient sex offender

treatment program. Id. § 31-21-10.1(D)(2). Under New Mexico law, the board

must require electronic real-time monitoring for the entire time the sex offender is

on parole. Id. § 31-21-10.1(E).7 We conclude that New Mexico considers the crime

of criminal sexual contact of a minor to be a serious sexual offense.

Despite the differences between the respective statutes, we conclude that the

New Mexico offense of criminal sexual contact of a minor is substantially similar

to the Texas offense of indecency with a child by contact for the purposes of

serving as a prior conviction of a sexually violent offense under the SVP statute.

Because the evidence at trial conclusively established that Cleaveland had

committed more than one prior sexually violent offense, we further conclude the

trial court did not err when it granted the State’s motion for directed verdict

regarding Cleaveland’s status as a repeat sexually violent offender. Additionally,

Cleaveland’s legal and factual sufficiency claims in issues one and two are based

on his assertion that the evidence of his New Mexico conviction is insufficient to 7 Texas also imposes intensive parole supervision on sex offenders. See Tex. Dep’t of Criminal Justice, Policies – Parole Division, available at http://www.tdcj. state.tx.us/policy/pol_parole.html. (last visited July 18, 2014).

20 show that it was for a prior sexually violent crime, the same argument that we

rejected in issue three. Because the trial court’s judgment is based on sufficient

evidence, we overrule Cleaveland’s first three issues.

Exclusion of Evidence

In his fourth issue, Cleaveland contends the trial court erroneously excluded

one of the opinions of his psychological expert, Dr. Marisa Mauro, who suggested

that Cleaveland’s offense against his New Mexico victim was motivated primarily

by his anger and inability to control his anger, rather than to gratify his sexual

desire. During direct examination, counsel asked Dr. Mauro if she had “an opinion

about what his motivation was for that offense[.]” The State objected to the

question, suggesting that Cleaveland’s motivation for the offense had been

established as a matter of law. The trial court sustained the State’s objection.

We review the exclusion of expert testimony for abuse of discretion. In re

Commitment of Day, 342 S.W.3d 193, 218 (Tex. App.—Beaumont 2011, pet.

denied). “Excluding or admitting evidence is likely harmless if the evidence was

cumulative or the rest of the evidence was so one-sided that the error likely made

no difference in the judgment.” In re Commitment of Weissinger, No. 09-12-

00486-CV, 2013 WL 3355758, at *8 (Tex. App.—Beaumont June 27, 2013, pet.

denied) (mem. op.).

21 The record reflects that during Cleaveland’s trial, the jury heard Dr. Mauro

explain why, in her opinion, Cleaveland does not suffer from a behavioral

abnormality that makes him likely to commit a sexually violent offense. With

respect to Cleaveland’s offense in New Mexico, Dr. Mauro explained that

Cleaveland was “very angry and became very abusive and that maybe the biting

occurred -- of the buttocks occurred as a result of that anger.” On the question of

whether Cleaveland has a behavioral abnormality, Dr. Mauro testified that

Cleaveland “does not have a behavioral abnormality,” and she explained that she

did not diagnose Cleaveland with pedophilia, although she acknowledged that

other doctors had done so. During her testimony, Dr. Mauro also explained that in

her opinion, Cleaveland’s New Mexico offense arose from his antisocial

personality and drug use. She further explained that Cleaveland’s “primary sexual

focus is not children[.]” During her testimony, Dr. Mauro acknowledged that the

witnesses’ statements in the record regarding the circumstances of Cleaveland’s

New Mexico offense indicate that he was babysitting a three-year old girl when he

became angry, put the child under a mattress and sat on her, grabbed her head and

hit her against a wall, chained her with a dog chain, punched her in the head,

kicked her, pulled her pants down, bit her on the buttocks, put his mouth on her

genitals, took her outside and threw her in a swimming pool, flipped the pool over

22 her and punched her through the pool, put her on top of a shed, and rubbed a puppy

on her face in an attempt to induce the dog to bite her. Dr. Mauro further explained

that in her opinion, Cleaveland’s criminal sexual contact “seemed to occur in the

course of him being violent with her and hitting her and spanking her.”

Cleaveland’s behavior, according to Dr. Mauro, is more consistent with his

antisocial personality disorder than with pedophilia. Dr. Mauro also explained that

a person’s antisocial personality disorder does not correlate to an increased risk

that the person will commit another sexually violent offense. Dr. Mauro stated that

Cleaveland’s New Mexico offense “seemed to be perpetuated more by the anger,

the inability to control himself, the outburst, the impulsivity,” which she explained

were components of an antisocial personality disorder. Dr. Mauro also testified

that, in her opinion, Cleaveland has not ever been a pedophile.

Cleaveland made an informal bill of exceptions regarding the excluded

testimony. See Tex. R. Evid. 103(b). In the bill of review, Dr. Mauro attributed

Cleaveland’s motivation for his New Mexico offense to anger and to Cleaveland’s

inability to control that anger. As part of the bill, Dr. Mauro explained that

Cleaveland’s indictment for the New Mexico offense did not allege that

Cleaveland committed the offense with the intent to gratify his sexual desire. Dr.

23 Mauro did not discuss the language found in Cleaveland’s New Mexico indictment

during her testimony before the jury.

On appeal, Cleaveland argues that by excluding the testimony offered in the

informal bill, the trial court “effectively hamstrung [Cleaveland’s] efforts to

persuade the jury to find that he is not a repeat sexually violent offender.” We

disagree. As we have explained, the record conclusively established that

Cleaveland was convicted in New Mexico of the offense of criminal sexual contact

of a minor. Under New Mexico’s law, the contact must be unlawful, meaning that

it was committed to gratify a sexual desire. See Osborne, 808 P.2d at 630-31.

Therefore, Dr. Mauro’s testimony regarding Cleaveland’s motivation conflicts

with facts that were established conclusively by virtue of his conviction—that he

committed that offense to arouse or gratify his sexual desire. Given that Dr.

Mauro’s opinion conflicted with the existing evidence that was conclusive

regarding whether his motivation related to gratifying his own sexual desire, the

trial court could have reasonably excluded the conflicting parts of her testimony.

We hold the trial court’s ruling to exclude the testimony at issue was not an abuse

of discretion.

Moreover, even if the trial court erred by refusing to admit the testimony at

issue, Dr. Mauro’s opinions about Cleaveland’s motivation that led to his New

24 Mexico conviction were largely cumulative of her other testimony that was before

the jury. Therefore, the trial court’s decision to exclude Dr. Mauro’s additional

opinions on the subject was not harmful. See Tex. R. App. P. 44.1(a)(1). We

overrule issue four and affirm the trial court’s judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on March 4, 2014 Opinion Delivered September 4, 2014

Before McKeithen, C.J., Horton and Johnson, JJ.