in Re Commitment of Brent Jozefkowicz

• Court: Court of Appeals of Texas
• Decided: September 24, 2009
• Docket: 09-08-00555-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-08-00555-CV

_____________________

IN RE COMMITMENT OF BRENT JOZEFKOWICZ

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause No. 08-02-01765 CV

MEMORANDUM OPINION

The State filed a petition seeking to involuntarily civilly commit Brent Jozefkowicz. See Tex. Health & Safety Code Ann. § 841.001-.150 (Vernon 2003 & Supp. 2008). The jury found he is a sexually violent predator. See id. § 841.003 (Vernon 2003). Jozefkowicz appeals from the trial court's final judgment and order of civil commitment.

The SVP statute defines "sexually violent predator" as a person who "(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. § 841.002(9) (Vernon Supp. 2008); § 841.003. The Act defines "[b]ehavioral abnormality" 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. § 841.002(2) (Vernon Supp. 2008). In two issues, Jozefkowicz argues the evidence is legally and factually insufficient to support the jury's finding that he currently has a behavioral abnormality as defined by the Act.

Chapter 841 requires that the State prove beyond a reasonable doubt that a person to be committed under the Act is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062(a) (Vernon 2003). As a result, although this is a civil case, we review the legal sufficiency issue by the standard of review applied in criminal cases for legal sufficiency. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.--Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.2781, 61 L.Ed.2d 560 (1979)). We review the evidence at trial to decide if a rational jury could have found beyond a reasonable doubt that Jozefkowicz suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See id. at 887. We also apply the factual sufficiency standard applied in criminal cases with respect to our factual sufficiency review in this case. In re Commitment of Gollihar, 224 S.W.3d 843, 846 (Tex. App.--Beaumont 2007, no pet.). Viewing the evidence in a neutral light, we will determine whether a jury was rationally justified in its verdict beyond a reasonable doubt. See id. "To reverse a case on a factual sufficiency challenge, we must be able to say that the great weight and preponderance of the evidence contradicts the jury's verdict or that the verdict is clearly wrong or manifestly unjust." Id. (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)).

In asserting legal and factual sufficiency challenges to the evidence supporting the jury's finding that he suffers from a behavioral abnormality, Jozefkowicz argues that the State's expert witnesses' opinions lacked probative value because the opinions are speculative and conclusory. He further states the experts based their conclusions on outdated data.

The Supreme Court has explained that "conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony." City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (citing Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)). If there is no basis offered for the expert's opinion or if the basis offered provides no support, the opinion is considered conclusory and not probative evidence. Id. at 818. If the opinion has a supporting basis, but there is a reliability challenge that requires the court to evaluate the underlying methodology, technique, or foundational data, an objection "must be timely made so that the trial court has the opportunity to conduct this analysis." Id. at 817 (quoting Coastal Transp. Co., 136 S.W.3d at 233). In this case, there was no objection to the testimony of either witness on grounds of unreliability.

Dr. Jason Dunham, a forensic psychologist, testified he reviewed records normally relied on by experts in the field to arrive at his opinion. He also interviewed Jozefkowicz.

Jozefkowicz pled guilty to the offenses of indecency with a child committed in 1984 and sexual assault committed in 1990. He received seven years deferred adjudication probation for the sexual assault. His probation was revoked in 1993 after he was charged with sexual battery. He has been incarcerated since the 1993 conviction.

On the actuarial tests, which assist in ascertaining certain risk factors for reoffending, Dunham scored Jozefkowicz in the high range on the Static-99 test. On the Mn-SOST-R, Dunham scored him in the high risk group. On the Hare Psychopathy Checklist, Dunham ultimately scored Jozefkowicz at 33.7, indicative of very high psychopathy.

Based on the testing, the interview, and a review of the various records, Dunham diagnosed Jozefkowicz as having a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. He also diagnosed Jozefkowicz with antisocial personality disorder and psychopathy. Dunham testified that Jozefkowicz's statement that he had six hundred sexual partners, his admitted involvement in prostitution, the fact that some of his victims were significantly younger than him at the time of the offenses, and his possession of pornography while incarcerated demonstrate Jozefkowicz's sexual deviance. Dunham identified several risk factors in regards to Jozefkowicz's risk of reoffending: (1) he had five arrests, charges, or convictions for sexual offenses; (2) all of the offenses involved some degree of force; (3) the offenses occurred in four different states; (4) he was offending from the age of seventeen until he was incarcerated at age twenty-five; (5) he offended while on probation; (6) his victim's ages varied widely; (7) his offenses were against strangers and women he knew; (8) he failed to accept responsibility for the offenses, or show remorse, and he blamed his victims; and (9) he has a history of dishonesty. Dunham testified Jozefkowicz's history of violence and history of impulsivity regarding his employment and relationships were significant. He stated that while Jozefkowicz has participated in sex offender treatment, it is Dunham's opinion that Jozefkowicz had not progressed to the point where the risks would be mitigated.

Dr. Sheri Gaines, board certified in psychiatry, testified she performed a psychological evaluation of Jozefkowicz and interviewed him. Like Dunham, Gaines reviewed records for Jozefkowicz including his convictions, and she also interviewed at least one of his victims. Based on her review of this information, Gaines diagnosed Jozefkowicz with bipolar disorder, polysubstance dependence in remission due to his incarceration, antisocial personality disorder, and sexual sadism. In her opinion, he has a behavioral abnormality that predisposes him to future acts of sexual violence.

Gaines explained that Jozefkowicz's ability to manipulate his victims, the use of force in committing his offenses, his placing blame on the victims and lack of remorse and empathy, his impulsive behavior, lack of stability and support system, as well as his committing offenses while on parole, all are risk factors when considering his risk of re-offending. She testified he is likely to reoffend.

Dunham and Gaines explained, from their review of the records and their interviews with Jozefkowicz, that the characteristics and conduct of Jozefkowicz demonstrate his behavioral abnormality, as defined in the Act. They explained in detail the risk factors that make him likely to engage in a predatory act of sexual violence. The opinions they expressed had a reliable basis in the record, and their testimony was probative to establish beyond a reasonable doubt that Jozefkowicz has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Their testimony was not conclusory or speculative.

Jozefkowicz testified that in the past he has had difficulty controlling his sexual urges. He also admitted to being a former drug addict and stated he has attempted suicide "probably eight" times. While in TDCJ, he participated in the Changes and Cognitive Intervention programs twice, participated in twenty-six different spiritual courses, and attended classes in anger management, behavioral health management, depression management, rational behavior therapy, and dialectical behavioral health. He conceded that anyone who is a sex offender is always at risk to reoffend.

Linda Tanner, associate psychologist with TDCJ Sex Offender Treatment Rehabilitation Program, testified on Jozefkowicz's behalf. She stated he had completed Phase I of the program and at the time of her testimony, he was currently participating in Phase II of the program. Although at one point he wanted to quit the program, he continued treatment and even held a leadership position with the program for about three months. She believes that during the program he has accepted responsibility for his offenses, shown remorse, and expressed empathy for his victims.

The jury determines the credibility of the witnesses and the weight to be given their testimony. In re Commitment of Mullens, 92 S.W.3d at 887 (citing Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994)). Conflicts and contradictions in the evidence are resolved by the jury; all, part, or none of a witness's testimony may be believed by the jury. Id. (citing Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)). The jury may draw reasonable inferences from the evidence. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000).

"[P]roof of serious difficulty in controlling behavior" is required in order to civilly commit a defendant under the SVP statute. See Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). The inability to control behavior "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Id. Dunham and Gaines testified to Jozefkowicz's risk factors, and Gaines testified he is likely to reoffend. A lack of volitional control could reasonably be inferred from the evidence, including his past behavior, his history of violating probation conditions, and his testimony. We conclude a rational jury could have found beyond a reasonable doubt that Jozefkowicz has serious difficulty in controlling his behavior and suffers from a behavioral abnormality that makes him likely to commit future acts of sexual violence.

Appellant's issues are overruled. We affirm the judgment and order of civil commitment.

AFFIRMED.

DAVID GAULTNEY

Justice

Submitted on September 18, 2009

Opinion Delivered September 24, 2009

Before McKeithen, C.J., Gaultney and Kreger, JJ.