In The
Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-14-00156-CV ________________
IN RE COMMITMENT OF RANDY LEE CARR __________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-08-09025-CV __________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to commit appellant Randy Lee Carr as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2014). A jury found that Carr is a sexually violent predator,
and the trial court signed a final judgment and an order of civil commitment. In
four appellate issues, Carr challenges the legal and factual sufficiency of the
evidence supporting the finding that he has a behavioral abnormality, the trial
court’s admission of certain expert testimony, and the constitutionality of Chapter
841 of the Texas Health and Safety Code. We affirm the trial court’s judgment and
order of civil commitment. 1 ISSUES ONE AND TWO
In issue one, Carr challenges the legal sufficiency of the evidence that he
suffers from a behavioral abnormality. In issue two, Carr challenges the factual
sufficiency of the evidence that he suffers from a behavioral abnormality. We
address issues one and two together.
When reviewing the legal sufficiency of the evidence, we assess all of 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 a 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 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).
Under the SVP statute, 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. Tex. Health &
2 Safety Code Ann. § 841.003(a) (West Supp. 2014). 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).
During the trial, the jury heard Carr’s admissions that he has a conviction for
indecency with a child and multiple convictions for sexual contact with a child.
The jury also heard Carr’s admissions that he had engaged in sexual contact with
three prepubescent children and that he was sexually attracted to prepubescent
children. In addition, the jury heard testimony from forensic psychiatrist Dr. Lisa
Clayton that Carr has a behavioral abnormality that makes him likely to engage in
predatory acts of sexual violence. Clayton explained that Carr suffers from
pedophilia and antisocial personality disorder, has had both male and female
victims, minimizes his offenses, reoffended after being incarcerated, and Carr
admitted during his interview with Clayton that he still has deviant sexual
fantasies. Clayton also testified that Carr completed a nine-month sex offender
treatment program, but she opined that Carr needs more intensive treatment and is
at high risk to reoffend.
3 Carr testified at trial. When asked why he offended against one of his
victims, Carr testified, “I had stuff wrong with my thinking. I had things wrong
with me, and I know now that I didn’t know how to deal with them.” Carr testified
that he completed a nine-month sex offender treatment program and that he had
never received treatment prior to that program. Carr denied currently being
attracted to prepubescent children and stated that he currently has no sexual urges.
Carr explained that he no longer considers himself to be a sex offender. Aveliah
Funderburk, the licensed professional counselor who worked with Carr in the sex
offender treatment program at TDCJ, testified that Carr successfully completed the
program and “also was able to demonstrate, not just the knowledge, . . . but
demonstrate his ability to use what he had learned.” Funderburk opined that Carr
has learned to have empathy for his victims, has insight into his offenses, and has
not minimized his offenses. Funderburk testified that Carr has “the tools and the
ability” to control his sexual urges.
As sole judge of the weight and credibility of the evidence, the jury could
reasonably conclude that Carr suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. See In re Commitment of
Lowe, No. 09-14-00098-CV, 2014 WL 4363624, at *2 (Tex. App.—Beaumont
Sept. 4, 2014, no pet.) (mem. op.); see also Mullens, 92 S.W.3d at 887. Viewing
4 the evidence in the light most favorable to the verdict, a rational jury could have
found, beyond a reasonable doubt, that Carr has a behavioral abnormality;
therefore, the evidence is legally sufficient. See Tex. Health & Safety Code Ann.
§§ 841.002(2), 841.003(a); see also Kansas v. Crane, 534 U.S. 407, 413 (2002);
Mullens, 92 S.W.3d at 885. In addition, 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 one and two.
ISSUE THREE
In his third issue, Carr argues that the trial court erred by permitting Clayton
to testify that Dr. Christine Reed, a non-testifying psychologist, had determined
that Carr has pedophilia and suffers from a behavioral abnormality. Carr argues
that because Clayton did not rely upon Reed’s written report, but instead simply
reviewed it, the report “could not have been properly admitted as ‘basis’ evidence
and . . . could only have been admitted for its truth to show that another
psychologist also said that Mr. Carr has a behavioral abnormality.” Carr contends
evidence concerning Reed’s report “should have been excluded as inadmissible
hearsay[,]” and that its admission probably caused the rendition of an improper
judgment.
5 At trial, Clayton responded affirmatively when asked whether Reed wrote a
report that Clayton reviewed as a part of Carr’s case, and she also testified that all
of the records she reviewed are the type of records relied upon by other experts in
her field. Carr’s counsel objected to Clayton’s testimony about Reed’s report and
requested a limiting instruction, which the trial court gave and to which defense
counsel did not object. Carr’s counsel also objected that the evidence was “unduly
prejudicial” and “offered to prove the truth of the matter asserted.” The trial court
overruled Carr’s objections. Clayton then testified that Reed determined that Carr
suffers from a behavioral abnormality.
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In The
Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-14-00156-CV ________________
IN RE COMMITMENT OF RANDY LEE CARR __________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-08-09025-CV __________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to commit appellant Randy Lee Carr as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2014). A jury found that Carr is a sexually violent predator,
and the trial court signed a final judgment and an order of civil commitment. In
four appellate issues, Carr challenges the legal and factual sufficiency of the
evidence supporting the finding that he has a behavioral abnormality, the trial
court’s admission of certain expert testimony, and the constitutionality of Chapter
841 of the Texas Health and Safety Code. We affirm the trial court’s judgment and
order of civil commitment. 1 ISSUES ONE AND TWO
In issue one, Carr challenges the legal sufficiency of the evidence that he
suffers from a behavioral abnormality. In issue two, Carr challenges the factual
sufficiency of the evidence that he suffers from a behavioral abnormality. We
address issues one and two together.
When reviewing the legal sufficiency of the evidence, we assess all of 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 a 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 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).
Under the SVP statute, 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. Tex. Health &
2 Safety Code Ann. § 841.003(a) (West Supp. 2014). 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).
During the trial, the jury heard Carr’s admissions that he has a conviction for
indecency with a child and multiple convictions for sexual contact with a child.
The jury also heard Carr’s admissions that he had engaged in sexual contact with
three prepubescent children and that he was sexually attracted to prepubescent
children. In addition, the jury heard testimony from forensic psychiatrist Dr. Lisa
Clayton that Carr has a behavioral abnormality that makes him likely to engage in
predatory acts of sexual violence. Clayton explained that Carr suffers from
pedophilia and antisocial personality disorder, has had both male and female
victims, minimizes his offenses, reoffended after being incarcerated, and Carr
admitted during his interview with Clayton that he still has deviant sexual
fantasies. Clayton also testified that Carr completed a nine-month sex offender
treatment program, but she opined that Carr needs more intensive treatment and is
at high risk to reoffend.
3 Carr testified at trial. When asked why he offended against one of his
victims, Carr testified, “I had stuff wrong with my thinking. I had things wrong
with me, and I know now that I didn’t know how to deal with them.” Carr testified
that he completed a nine-month sex offender treatment program and that he had
never received treatment prior to that program. Carr denied currently being
attracted to prepubescent children and stated that he currently has no sexual urges.
Carr explained that he no longer considers himself to be a sex offender. Aveliah
Funderburk, the licensed professional counselor who worked with Carr in the sex
offender treatment program at TDCJ, testified that Carr successfully completed the
program and “also was able to demonstrate, not just the knowledge, . . . but
demonstrate his ability to use what he had learned.” Funderburk opined that Carr
has learned to have empathy for his victims, has insight into his offenses, and has
not minimized his offenses. Funderburk testified that Carr has “the tools and the
ability” to control his sexual urges.
As sole judge of the weight and credibility of the evidence, the jury could
reasonably conclude that Carr suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. See In re Commitment of
Lowe, No. 09-14-00098-CV, 2014 WL 4363624, at *2 (Tex. App.—Beaumont
Sept. 4, 2014, no pet.) (mem. op.); see also Mullens, 92 S.W.3d at 887. Viewing
4 the evidence in the light most favorable to the verdict, a rational jury could have
found, beyond a reasonable doubt, that Carr has a behavioral abnormality;
therefore, the evidence is legally sufficient. See Tex. Health & Safety Code Ann.
§§ 841.002(2), 841.003(a); see also Kansas v. Crane, 534 U.S. 407, 413 (2002);
Mullens, 92 S.W.3d at 885. In addition, 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 one and two.
ISSUE THREE
In his third issue, Carr argues that the trial court erred by permitting Clayton
to testify that Dr. Christine Reed, a non-testifying psychologist, had determined
that Carr has pedophilia and suffers from a behavioral abnormality. Carr argues
that because Clayton did not rely upon Reed’s written report, but instead simply
reviewed it, the report “could not have been properly admitted as ‘basis’ evidence
and . . . could only have been admitted for its truth to show that another
psychologist also said that Mr. Carr has a behavioral abnormality.” Carr contends
evidence concerning Reed’s report “should have been excluded as inadmissible
hearsay[,]” and that its admission probably caused the rendition of an improper
judgment.
5 At trial, Clayton responded affirmatively when asked whether Reed wrote a
report that Clayton reviewed as a part of Carr’s case, and she also testified that all
of the records she reviewed are the type of records relied upon by other experts in
her field. Carr’s counsel objected to Clayton’s testimony about Reed’s report and
requested a limiting instruction, which the trial court gave and to which defense
counsel did not object. Carr’s counsel also objected that the evidence was “unduly
prejudicial” and “offered to prove the truth of the matter asserted.” The trial court
overruled Carr’s objections. Clayton then testified that Reed determined that Carr
suffers from a behavioral abnormality. Clayton also testified regarding the actuarial
instruments Reed had scored pertaining to Carr.
Rule 705 of the Texas Rules of Evidence provides that an expert may
disclose on direct examination, or be required to disclose on cross-examination, the
underlying facts or data on which the expert bases an opinion. Tex. R. Evid.
705(a); In re Commitment of McCarty, No. 09-12-00083-CV, 2013 WL 3354556,
at *3 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.). If an expert
relies upon hearsay in forming her opinion, and that hearsay evidence is of a type
reasonably relied upon by such experts, such evidence is admissible. McCarty,
2013 WL 3354556, at *3. Hearsay evidence that might otherwise be permissible
under Rule 705(a) may be excluded if the danger that it will be used for a purpose
6 other than explaining or supporting the expert’s opinion outweighs its probative
value or if it is unfairly prejudicial. Id. (citing Tex. R. Evid. 705(d) and In re
Commitment of Wilson, No. 09-08-00043-CV, 2009 WL 2616921, at *9 (Tex.
App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.)). We conclude that the
evidence was properly admitted under Rule 705(a) and was not unfairly
prejudicial. Therefore, the trial court did not err by permitting Clayton to testify
regarding Reed’s report. See McCarty, 2013 WL 3354556, at *3; see also Tex. R.
Evid. 705(a). We therefore overrule issue three.
ISSUE FOUR
In his fourth issue, Carr contends that this Court’s decision in In re
Commitment of Richard1 renders Chapter 841 unconstitutional. We have
previously addressed and rejected this argument. See In re Commitment of Lucero,
No. 09-14-00157-CV, 2015 WL 474604, at **9-10 (Tex. App.—Beaumont Feb. 5,
2015, no pet. h.) (mem. op.). For the same reasons outlined in Lucero, we reject
Carr’s constitutional arguments. See id. Accordingly, we overrule issue four and
affirm the trial court’s judgment and order of civil commitment.
1 In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852 (Tex. App.—Beaumont June 26, 2014, pet. denied) petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 10, 2015) (mem. op.). 7 AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on February 20, 2015 Opinion Delivered April 9, 2015
Before McKeithen, C.J., Kreger, and Johnson, JJ.