in Re Commitment of Gilbert B. Tolbert Jr.

• Court: Court of Appeals of Texas
• Decided: February 16, 2023
• Docket: 09-22-00130-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00130-CV __________________

IN RE COMMITMENT OF GILBERT B. TOLBERT JR.

__________________________________________________________________

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 21-06-08819-CV __________________________________________________________________

MEMORANDUM OPINION

The State of Texas filed a petition to commit Gilbert B. Tolbert Jr. as a

sexually violent predator. See Tex. Health & Safety Code Ann. § 841.001–.153.

(SVP statute). A jury found that Tolbert is a sexually violent predator. The trial court

rendered a final judgment and order of civil commitment, and Tolbert appealed. In

two issues, Tolbert challenges the legal and factual sufficiency of the evidence

supporting the jury’s finding. As discussed below, we affirm the trial court’s

judgment and order of civil commitment.

1 THE EVIDENCE

Dr. Sheri Gaines, a board-certified psychiatrist who has specialized training

in forensic psychiatry, testified that she evaluated Tolbert and relied upon principles

of psychiatry in doing so. Dr. Gaines explained that the standard methodology

involves face-to-face interviews, as well as reviewing police and prison records,

victim statements, and depositions. Dr. Gaines testified that she interviewed Tolbert

for approximately two hours, reviewed the records, and conducted a risk assessment.

Dr. Gaines opined that, based on her education, training, experience, and

methodology, Tolbert suffers from a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence.

Dr. Gaines explained that the facts and data surrounding Tolbert’s sexual

convictions and nonsexual criminal history constitute risk factors and helped her to

formulate her opinion about whether Tolbert is likely to reoffend. Dr. Gaines

testified that Tolbert’s first offense with an element of a sexual nature involved

forcing a victim in his car at gunpoint and telling the victim he was going to have

sex with her, and Tolbert admitted that he tried to force the victim to have sex. Dr.

Gaines testified that Tolbert was convicted of false imprisonment or terroristic

threat. Dr. Gaines testified that Tolbert was also convicted of rape and placed on

probation for ten years, and he claimed the encounter was consensual. Dr. Gaines

explained that while on probation, Tolbert was convicted of attempted sexual assault

2 and burglary of a habitation with the intent to commit kidnapping, which involved a

sexual assault that was dismissed in a plea deal. Dr. Gaines testified that Tolbert

committed another sexual assault after he was released on parole. Dr. Gaines

explained that Tolbert is sexually deviant, and sexual deviance is a condition that

affects his emotional and volitional control and makes him a menace to society. Dr.

Gaines testified that other risk factors included that Tolbert has repeatedly engaged

in sexually deviant behavior, the fact that Tolbert reoffended while on probation and

parole, persistence after punishment, offending in public places, unrelated victims,

violence during a sexual offense, denial, lack of insight, lack of understanding, lack

of remorse, and use of substances during an offense.

Dr. Gaines diagnosed Tolbert with sexual sadism disorder and other specified

personality disorder with antisocial features. Dr. Gaines also testified that Tolbert

received approximately thirty disciplinaries for sexual offenses in prison, including

for public masturbation toward female correctional officers, which further evidenced

his sexual deviance and antisocial personality. Dr. Gaines explained that Tolbert has

not had sex offender treatment, and his denial of offending and lack of remorse and

responsibility elevates his risk for reoffending. Dr. Gaines testified the evidence

shows Tolbert has a congenital or acquired condition that has affected his emotional

or volitional capacity. Dr. Gaines identified positive factors that might decrease

Tolbert’s risk of reoffending, including his age, family support, education level,

3 participation in prison programs, participation in a sex offender education program,

and employment history, but Dr. Gaines explained those factors do not change her

opinion that Tolbert suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

Tolbert testified that he is currently incarcerated for sexual assault and serving

sixty years. Tolbert testified that he committed his first sexual offense in 1982, and

he admitted that he had a gun and drove the victim out in the country against her will

and told her he wanted to have sex, but he claimed he did not plan on having sex

with the victim against her will. Tolbert explained the victim escaped and he was

only charged with a misdemeanor. Tolbert testified that in 1983 he was charged with

rape, and he pled guilty and was placed on probation but claimed it was consensual.

Tolbert further testified that while on probation he was charged with attempted

sexual assault and pled guilty, but he claimed the victim lied. Tolbert explained that

he was also charged with sexual assault while on probation, and he agreed that

records showed the charge was dropped because he was convicted of burglary with

intent to kidnap. Tolbert testified that after he got out of prison, he was charged with

committing another sexual assault while on parole and a jury found him guilty, but

Tolbert claimed the victim lied.

Tolbert admitted that while in prison, he had received over thirty disciplinary

cases that involved sexual misconduct. Tolbert testified that during his incarceration,

4 he received disciplinary cases for masturbating in public. Tolbert testified that he

completed a sex offender education program, but he never participated in sex

offender treatment because he did not believe he was a sex offender or had any

mental health problems. Tolbert denied that he sexually victimized anyone, but he

also admitted to sexually assaulting one of his victims while on parole and claimed

he did not know he was sexually victimizing the victim.

ANALYSIS

In two appellate issues, Tolbert argues that the evidence is legally and

factually insufficient to support the jury’s finding that he has a behavioral

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

Tolbert argued that Dr. Gaines’s opinion cannot support the verdict, because her

opinion is unreliable, conclusory, and speculative.

In an SVP civil commitment proceeding, the State bears the burden to prove

beyond a reasonable doubt that the respondent is a sexually violent predator. See

Tex. Health & Safety Code Ann. § 841.062; In re Commitment of Morales, 98

S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied). A person is a sexually

violent predator if the person “is a repeat sexually violent offender[] and []suffers

from a behavioral abnormality that makes the person likely to engage in a predatory

act of sexual violence.” Tex. Health & Safety Code Ann. § 841.003(a). A behavioral

abnormality is “a congenital or acquired condition that, by affecting a person’s

5 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).

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

favorable to the verdict to determine whether a 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 resolve conflicts in the

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

ultimate facts. See id. at 887. Under a 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).

To the extent Tolbert argues on appeal that Dr. Gaines’s methodology or

underlying data on which she relied is unreliable, Tolbert failed to properly preserve

these arguments. An objection to reliability must be timely made at trial. Tex. R.

App. P. 33.1(a)(1) (providing that to preserve error, a defendant’s challenge, whether

by request, objection, or motion must be timely); In re Commitment of Grunsfeld,

No. 09-09-00279-CV, 2011 WL 662923, at *6 (Tex. App.—Beaumont Feb. 24,

6 2011, pet. denied) (mem. op.) (stating the defendant must timely object to the

reliability of an expert’s methodology). At trial, Tolbert did not challenge the

reliability of Dr. Gaines’s methodology or the underlying data on which she relied

at trial. In Tolbert’s motion for new trial, Tolbert alleged that the trial court erred by

allowing Dr. Gaines to testify regarding the likelihood about his risk to reoffend

because the SVP statute does not properly define the term “likely” and the term’s

meaning should be held as void and unconstitutional. Tolbert has not shown that he

challenged the reliability of Dr. Gaines’s testimony when a challenge could have

allowed the trial court to analyze the expert’s underlying methodology. See

Grunsfeld, 2011 WL 662923, at *6; In re Commitment of Hood, No. 09-16-00012-

CV, 2016 WL 4247961, at *4 (Tex. App.—Beaumont Aug. 11, 2016, no pet.) (mem.

op.).

Under Texas law, wholly conclusory and speculative opinion testimony does

not constitute legally sufficient evidence to support a verdict because such testimony

“does not tend to make the existence of a material fact ‘more or less probable.’” City

of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Coastal

Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)).

Therefore, “[b]are, baseless opinions will not support a judgment even if there is no

objection to their admission in evidence.” Id. Tolbert argues that Dr. Gaines reached

her opinions without data that supports her conclusions. Dr. Gaines testified she is

7 board certified in and has specialized training in forensic psychiatry. In reaching her

conclusions, Dr. Gaines testified that she applied her training and experience related

to evaluating whether a person has a behavioral abnormality, as well as the

information she reviewed in Tolbert’s case in forming her opinions. The testimony

shows that Dr. Gaines interviewed Tolbert, reviewed records that are relevant to

Tolbert’s criminal history, and she reviewed the details of Tolbert’s offenses

involving sexually violent crimes. The records Dr. Gaines reviewed are the types of

records that experts in Dr. Gaines’s field rely on in forming opinions. Dr. Gaines

also explained that she performed her assessment of Tolbert in a manner that is

consistent with the methodology that experts in her field follow and the accepted

standards in the field of forensic psychiatry.

After Dr. Gaines explained her methodology and how she applied that

methodology to Tolbert, Gaines testified that in her professional opinion Tolbert has

a behavioral abnormality that makes Tolbert likely to engage in predatory acts of

sexual violence. The jury heard evidence of Tolbert’s risk factors, sexual offenses,

and diagnoses. The jury also heard Dr. Gaines’s testimony that Tolbert is sexually

deviant and that his sexual deviance affects his emotional and volitional control and

makes him a menace to society. The jury also considered Dr. Gaines’s testimony

that Tolbert continued to engage in sexual offenses while on probation and parole

and in prison and that his risk of reoffending was elevated due to his lack of remorse

8 and responsibility and failure to participate in sex offender treatment. The jury also

heard Tolbert testify about his criminal history and considered his testimony that he

did not believe he had sexually victimized any of his victims or that he was a sex

offender.

We conclude that Dr. Gaines’s testimony was not baseless nor was it too

conclusory to support a finding that Tolbert suffers from a behavioral abnormality.

Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found, beyond a reasonable doubt, that Tolbert is a sexually

violent predator, and the evidence is legally sufficient to support the jury’s finding.

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

U.S. 407, 412 (2002); Mullens, 92 S.W.3d at 885. Tolbert argues that portions of Dr.

Gaines’s testimony were misleading. However, it was up to the jury to decide these

issues as the sole judge of the weight and credibility of the evidence. See Mullens,

92 S.W.3d at 887. On this record, the evidence allowed the jury to draw reasonable

inferences from basic facts to determine ultimate issues. See In re Commitment of

Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *4(Tex. App.—Beaumont

Dec. 31, 2009, no pet.) (mem. op.) (citation omitted); see also Hood, 2016 WL

4247961, at *5. The jury may resolve conflicts and contradictions in the evidence by

believing all, part, or none of the testimony. Mullens, 92 S.W.3d at 887. We further

conclude that, as the sole judge of the credibility of the evidence, the jury could

9 reasonably conclude that Tolbert suffers from a behavioral abnormality that makes

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

Muzzy, No. 09-13-00496-CV, 2014 WL 1778254, at *3(Tex. App.—Beaumont May

1, 2014, pet. denied) (mem. op.); see also Mullens, 92 S.W.3d at 887; Hood, 2016

WL 4247961, at *5. Weighing all the evidence, we conclude the verdict does not

reflect a risk of injustice that compels ordering a new trial. See Day, 342 S.W.3d at

213. We overrule both issues raised by Tolbert, and we affirm the trial court’s

judgment and order to civil commitment.

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on December 27, 2022 Opinion Delivered February 16, 2023

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