in Re Commitment of Gary Lee Cardenas

• Court: Court of Appeals of Texas
• Decided: June 12, 2014
• Docket: 09-13-00484-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-13-00484-CV ____________________

IN RE COMMITMENT OF GARY LEE CARDENAS _________________________________ ______________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-12-13067 CV ____________________________________________ ____________

MEMORANDUM OPINION

The State of Texas filed a petition to commit Gary Lee Cardenas as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2013). A jury found that Cardenas is a sexually violent

predator and the trial court rendered a final judgment and an order of civil

commitment. In four appellate issues, Cardenas challenges: (1) the denial of his

request to have an attorney present during the State’s post-petition expert

examination; (2) the admission of certain evidence; and (3) the legal and factual

sufficiency of the evidence to support the jury’s verdict. We affirm the trial court’s

judgment and order of civil commitment.

1 Sufficiency of the Evidence

In issues three and four, Cardenas contends that the evidence is legally and

factually insufficient to support a finding that he is a sexually violent predator.

Under legal sufficiency review, we assess all the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could find,

beyond a reasonable doubt, the elements required for commitment under the SVP

statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont

2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in

the testimony, weigh the evidence, and draw reasonable inferences from basic facts

to ultimate facts. Id. at 887. Under factual sufficiency review, we weigh the

evidence to determine “whether a verdict that is supported by legally sufficient

evidence nevertheless reflects a risk of injustice that would compel ordering a new

trial.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied).

In an SVP case, the State must prove, beyond a reasonable doubt, that a

person is a sexually violent predator. Tex. Health & Safety Code Ann. §

841.062(a) (West 2010). A person is a “sexually violent predator” if he is a repeat

sexually violent offender and suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. Id. § 841.003(a) (West

2 Supp. 2013). A “behavioral abnormality” is “a congenital or acquired condition

that, by affecting a person’s emotional or volitional capacity, predisposes the

person to commit a sexually violent offense, to the extent that the person becomes

a menace to the health and safety of another person.” Id. § 841.002(2). “A

condition which affects either emotional capacity or volitional capacity to the

extent a person is predisposed to threaten the health and safety of others with acts

of sexual violence is an abnormality which causes serious difficulty in behavior

control.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—

Beaumont 2003, pet. denied).

During trial, the jury heard Cardenas’s admissions to previous convictions

for sexual assault and attempted sexual assault, as well as numerous prison

disciplinary cases, including three cases for sexual misconduct. The jury also heard

evidence regarding Cardenas’s criminal history, including his sexual offenses and

prison disciplinary cases. Cardenas testified that he is now more mature and has

more knowledge and education to apply in the future. He testified that he has

completed substance abuse treatment and is participating in sex offender treatment.

Cardenas admitted that he is a recovering drug addict and a sex offender, but he

gave inconsistent opinions as to whether he needs sex offender treatment. He

explained that he does not want to waste his opportunity in the free world.

3 Dr. Stephen Thorne, a psychologist, and Dr. Sheri Gaines, a medical doctor

specializing in psychiatry, both concluded that Cardenas suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

Thorne and Gaines diagnosed Cardenas with antisocial personality disorder, which

Thorne explained is a condition that has affected Cardenas’s emotional and

volitional capacity. Gaines also diagnosed Cardenas with paraphilia not otherwise

specified and polysubstance dependence in remission in a controlled environment.

Thorne performed the Hare Psychopathy Checklist on which Cardenas scored a

twenty-six, meaning that he has more psychopathic traits than the average person.

Thorne testified that Cardenas scored a five on the Static-99R, which places

Cardenas in the moderate to high range of sexual re-offense. Thorne and Gaines

identified the following factors that increase Cardenas’s risk of reoffending: sexual

deviancy, extra-familial victim, stranger victim, sexual misconduct while

incarcerated, use of force, substance abuse, offenses in a public setting, antisocial

behavior, criminal offenses and behavior, offenses while under supervision,

persistence after punishment, failure to successfully complete sex offender

treatment, relationship history, victim blame, unstable lifestyle, and poor

institutional adjustment.

4 Dr. Marisa Mauro, a psychologist, testified for the defense. It was her

opinion that Cardenas does not have a behavioral abnormality. Mauro diagnosed

Cardenas with antisocial personality disorder and cannabis use disorder. She

conducted the Hare Psychopathy Checklist, on which Cardenas scored twenty-

seven, placing him in the range of “mixed psychopathic features.” Mauro

performed the Static-99R actuarial test on which Cardenas scored a five, a

moderate to high risk of re-offense. She testified that Cardenas scored a six on the

Static-2002R, i.e., the moderate range of re-offense. She identified the following

risk factors: substance abuse, antisocial personality disorder, and factors

encompassed by the actuarial tests. Mauro also identified protective factors: no

male victims, no child victims, successful relationships, age, gang renouncement,

sobriety, and participation in sex offender treatment. She admitted that a

personality disorder is a congenital or acquired condition that can affect a person’s

emotional or volitional capacity and Cardenas’s antisocial personality disorder

could have played a role in his sexual offending. However, Mauro did not believe

that Cardenas has serious difficulty controlling his behavior or has a condition that

affects his emotional or volitional capacity.

On appeal, Cardenas contends that Thorne and Gaines relied on incorrect

legal standards. Thorne testified that sexual deviancy and antisocial behavior, such

5 as rule violations, criminal activity, and inability to control behavior, are primary

considerations and that Cardenas’s criminal and disciplinary history shows that his

volitional capacity has been affected. Gaines testified that it is significant when a

person is receiving sex offender treatment and is under supervision, yet reoffends,

as this shows a lack of emotional or volitional control. Cardenas contends that this

testimony improperly suggests that all repeat sex offenders have serious inability

controlling their behavior.

Whether a person suffers from an emotional or volitional defect so grave as

to cause behavior that makes him a menace is included in the determination of

whether he has serious difficulty in controlling behavior. Almaguer, 117 S.W.3d at

505-06. The jury could infer serious difficulty controlling behavior not only from

the expert testimony, but also from Cardenas’s past behavior and testimony. See In

re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at

*13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); see also In re

Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at

*20 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem. op.). Accordingly, we

cannot say that the evidence is insufficient as a result of the experts’ testimony

regarding volitional capacity.

6 Additionally, Cardenas complains of the experts’ definitions of the word

“likely.” Thorne defined “likely” to mean “[p]robable.” Gaines defined “likely” as

“inclined to, tending to, likely to.” The term “likely” does not have a “precise

definition of the type associated with any certain assigned percentage of risk.” In

re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—Beaumont 2012, pet.

denied). An expert’s testimony is not insufficient merely because the term “likely”

is not defined by the statute or case law. In re Commitment of Kirsch, No. 09-08-

00004-CV, 2009 Tex. App. LEXIS 5436, at *17 (Tex. App.—Beaumont July 16,

2009, pet. denied) (mem. op.). Nor does an expert’s explanation of the term

“likely,” alone, render the evidence insufficient to support the jury’s finding that a

person suffers from a behavioral abnormality. Id. at *19. Thorne’s and Gaines’s

definitions of “likely” merely go to the weight that the jury might give their

testimony. See id.

As sole judge of the weight and credibility of the evidence, the jury could

reasonably conclude that Cardenas suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. See In re

Commitment of Bernard, No. 09-10-00462-CV, 2012 Tex. App. LEXIS 4681, at

**6-7 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see also

Mullens, 92 S.W.3d at 887; Almaguer, 117 S.W.3d at 505-506; Burnett, 2009 Tex.

7 App. LEXIS 9930, at *13; Grinstead, 2009 Tex. App. LEXIS 228, at *16. That

Cardenas has serious difficulty controlling his behavior and is likely to commit

predatory acts of sexual violence directed toward individuals for the primary

purpose of victimization are implicit in this finding. See In re Commitment of

Bailey, No. 09-09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex.

App.—Beaumont Aug. 19, 2010, no pet.) (mem. op.); see also Grinstead, 2009

Tex. App. LEXIS 228, at *16. Viewing the evidence in the light most favorable to

the verdict, a rational jury could have found, beyond a reasonable doubt, that

Cardenas is a sexually violent predator; thus, the evidence is legally sufficient. See

Tex. Health & Safety Code Ann. § 841.062(a); see also Kansas v. Crane, 534 U.S.

407, 413 (2002); Mullens, 92 S.W.3d at 885. Weighing all of the evidence, the

verdict does not reflect a risk of injustice that would compel ordering a new trial.

See Day, 342 S.W.3d at 213. We overrule issues three and four.

Right to Counsel

In issue one, Cardenas complains of the denial of his request to have an

attorney present at the pre-trial expert examination. We have held that neither the

SVP statute nor the Fourteenth Amendment requires that counsel be present during

a psychiatrist’s post-petition examination. See In re Commitment of Smith, 422

S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet. denied). Cardenas argues that

8 Smith was based solely on a concession by Smith that the SVP statute defines a

civil commitment proceeding as a “trial or hearing” and does not appear to

encompass a pre-trial psychiatric examination. See id. at 806. In Smith, we merely

noted that Smith made this concession and we did not base our holding on that

concession alone. Id. at 804-07. Additionally, we have upheld our ruling in other

cases. See In re Commitment of Speed, No. 09-13-00488-CV, 2014 Tex. App.

LEXIS 4444, at *2 (Tex. App.—Beaumont Apr. 24, 2014, pet. filed) (mem. op.);

see also In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 Tex. App.

LEXIS 3888, at **1-2 (Tex. App.—Beaumont Apr. 10, 2014, no pet. h.) (mem.

op.). We decline to revisit our ruling in Smith and, for the reasons discussed in

Smith, we overrule Cardenas’s first issue.

Admission of Evidence

In issue two, Cardenas challenges the admission of evidence regarding the

details of his sexually violent offenses. “We review a trial court’s evidentiary

rulings for abuse of discretion.” Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 906 (Tex. 2000); see In re Commitment of Salazar, No. 09-07-345

CV, 2008 Tex. App. LEXIS 8856, at *19 (Tex. App.—Beaumont Nov. 26, 2008,

pet. denied) (mem. op.). We will not reverse unless the error probably caused the

rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1).

9 “[A]n expert may disclose on direct examination, or be required to disclose

on cross-examination, the underlying facts or data on which he bases his opinion.”

In re Commitment of Jackson, No. 09-12-00291-CV, 2013 Tex. App. LEXIS

13507, at *9 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op); see Day,

342 S.W.3d at 197-98. The trial court “shall exclude the underlying facts or data if

the danger that they will be used for a purpose other than as explanation or support

for the expert’s opinion outweighs their value as explanation or support or are

unfairly prejudicial.” Tex. R. Evid. 705(d). “If otherwise inadmissible facts or data

are disclosed before the jury, a limiting instruction by the court shall be given upon

request.” Id. Even relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.

Cardenas did not object to the trial court’s limiting instructions given during

trial, request a different or additional instruction, or object to the limiting

instruction contained in the jury charge. We presume the jury followed the trial

court’s limiting instructions. See Day, 342 S.W.3d at 199. Additionally, Cardenas

himself testified to the details of his sexual offenses. The trial court could

reasonably conclude that the facts and details related to Cardenas’s underlying

offenses would be helpful to the jury to explain how Thorne and Gaines formed

their opinions that Cardenas suffers from a behavioral abnormality. Given the

10 purpose for admitting this evidence, its cumulative nature, and the trial court’s

limiting instructions, the trial court’s conclusion that the evidence was not unfairly

prejudicial was reasonable. See Jackson, 2013 Tex. App. LEXIS 13507, at *10; see

also In re Commitment of King, No. 09-13-00255-CV, 2014 Tex. App. LEXIS 724,

at **7-8; (Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.); Day, 342

S.W.3d at 199. The admission of Thorne’s and Gaines’s testimony was not an

abuse of discretion and did not cause the rendition of an improper judgment. See

Tex. R. App. P. 44.1(a)(1). We overrule issue two and affirm the trial court’s

AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on May 22, 2014 Opinion Delivered June 12, 2014

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