in Re Commitment of Steven Weatherread

• Court: Court of Appeals of Texas
• Decided: November 29, 2012
• Docket: 09-11-00269-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00269-CV _________________

IN RE COMMITMENT OF STEVEN WEATHERREAD

________________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 10-07-07536-CV ________________________________________________________________________

MEMORANDUM OPINION

Steven Weatherread appeals, challenging a civil commitment that the trial court

ordered after a jury found him to be a sexually violent predator. See Tex. Health & Safety

Code Ann. §§ 841.001–.151 (West 2010 & Supp. 2012) (SVP statute). In two issues,

Weatherread challenges the trial court’s decision to admit portions of the testimony of the

State’s experts. We affirm the trial court’s judgment.

In issue one, Weatherread argues the trial court erred by admitting the testimony

of the State’s experts, Dr. Michael Arambula and Dr. Timothy Proctor, because their

testimonies were conclusory, unreliable, and lacked probative value. In issue two,

1 Weatherread asserts the trial court erred by admitting the testimony of Dr. Proctor

because he utilized a definition of the term “likely” that varied from the meaning the

Legislature intended that it have.

In issue one, Weatherread argues that analytical gaps exist between the data

reviewed by Dr. Arambula and by Dr. Proctor and their opinions, and that the gaps are so

great that their opinions are unreliable and conclusory. However, during the trial,

Weatherread did not object to the admission of the testimony of Dr. Arambula or of Dr.

Proctor on the basis that analytical gaps made either of their testimonies conclusory or

unreliable. We conclude that Weatherread has waived his right to our review of the trial

court’s decision to admit the testimony of Dr. Arambula and of Dr. Proctor based on an

argument first presented in his appellate brief. See Tex. R. Evid. 103(a)(1) (requiring a

timely objection to erroneous admission of evidence); Tex. R. App. P. 33.1 (requiring

that rules of error preservation be followed in order to present a complaint for appellate

review). Issue one is overruled.

Nevertheless, Weatherread’s issue one argument might be read to have been

intended to advance a claim that the evidence is insufficient to support the trial court’s

judgment. An appellant can preserve error by arguing a matter that has not been

specifically listed as an issue in the brief. See Weeks Marine, Inc. v. Garza, 371 S.W.3d

157, 162 (Tex. 2012). While Weatherread did not separately and specifically present an

issue challenging the legal sufficiency of the evidence supporting the jury’s findings,

2 issue one includes an argument that the experts’ conclusory opinions are insufficient

evidence to support a judgment.1 We construe Weatherread’s brief to include a challenge

that the evidence is legally insufficient to support the trial court’s judgment.

When reviewing the legal sufficiency of the evidence supporting an SVP

commitment, 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). In explaining how the

evidence is insufficient in Weatherread’s case, Weatherread faults Dr. Arambula for

failing to take blood tests and magnetic resonance imaging studies, and for failing to

conduct a collateral investigation or to consult with colleagues. However, the record does

not show that these types of tests and investigations are components of psychiatric

evaluations for SVP commitments.

The record reflects that Dr. Arambula reviewed the types of information generally

relevant to a determination of whether a person is a sexually violent predator. He

interviewed Weatherread and examined Weatherread’s records, which included

evaluations conducted by mental health professionals. Dr. Arambula used the DSM-IV to

diagnose Weatherread with paraphilia disorder not otherwise specified with features of

Weatherread also argued that Dr. Proctor’s and Dr. Arambula’s testimony 1

amounted to legally insufficient evidence in his motion for new trial, which supports the inference that he may have intended to raise a legal sufficiency challenge on appeal.

3 pedophilia, which Dr. Arambula explained is a chronic, lifelong condition. Dr. Arambula

also diagnosed Weatherread with “personality disorder not otherwise specified with

feature of antisocial.” According to Dr. Arambula, a personality disorder is a permanent

condition that allows Weatherread to believe that society is against him and that he has

not done anything wrong. Dr. Arambula testified that such tendencies lead people with

this problem to place themselves in high-risk situations. In Dr. Arambula’s opinion,

Weatherread has a behavioral abnormality that makes him likely to engage in a predatory

act of sexual violence.

Using evidence-based support, Dr. Arambula presented a professional opinion

expressing “a reasoned judgment based upon established research and techniques for his

profession and not the mere ipse dixit of a credentialed witness.” See In re Commitment

of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011, pet. denied). On this record,

we cannot say that Dr. Arambula’s testimony lacks probative value. See Coastal Transp.

Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).

Weatherread lodges a similar argument regarding Dr. Proctor’s testimony,

although he notes that Dr. Proctor placed more reliance on Weatherread’s actuarial

testing than Dr. Arambula did when forming his opinions. Dr. Proctor stated that

Weatherread’s score of 2 on the Static-99R falls in the low, moderate range, while his

score of 8 on the MnSOST-R falls in the high range, which is the second highest of four

levels of risk on that scale. Dr. Proctor testified that he considered Weatherread’s history,

4 which tends to show that Weatherread has had a sexual interest in minors, had been

convicted of sexual offenses both before and after receiving sex offender treatment, had

committed offenses while on community supervision, had a poor history of having

complied with sex offense-related supervision requirements, had committed sexual

offenses against people who were not related to him, had used force during the sexual

offenses, had been sued for sexual harassment, and that he tended to be antisocial and

tended to engage in minimization and to use denial.

In reaching his conclusions, Dr. Proctor also considered a number of factors that

would tend to decrease a person’s risk of reoffending. Nevertheless, Dr. Proctor testified

that Weatherread’s risk factors outweighed the factors that were favorable with respect to

whether he would commit another sexually related offense. Dr. Proctor diagnosed

Weatherread with “paraphilia not otherwise specified with a rule-out consideration of

pedophilia attracted to females nonexclusive type[]” and “personality disorder not

otherwise specified that includes antisocial personality traits.” According to Dr. Proctor,

Weatherread’s risk factors, together with his classifications under the DSM, support his

conclusion that Weatherread has a behavioral abnormality that makes him likely to

commit a sexually violent offense.

Weatherread argues that Dr. Proctor manipulated the result of the actuarial testing.

However, the record reflects that Dr. Proctor explained that actuarial measures of

recidivism, such as the Static-99R, use research-based risk factors that provide a level of

5 risk, and that he considered these measures in assessing Weatherread’s risk of recidivism.

Dr. Proctor explained that he also considers risk factors and protective factors that may

not be reflected in the Static-99R. In summary, the record reflects that Dr. Proctor

described the factors he considered, and explained why he felt these factors significant.

Weatherread’s claim that Dr. Proctor’s testimony amounts to no evidence because it

contains significant analytical gaps is not supported by the record. We overrule issue one.

In issue two, Weatherread complains that Dr. Proctor utilized an improper

definition of the term “likely” in formulating his opinions,2 which served to lower the

State’s burden of proof. Before Dr. Proctor testified, Weatherread objected on the basis

that Dr. Proctor had utilized an improper definition of the term “likely” in forming his

opinions. The trial court overruled Weatherread’s objection. See Tex. R. Evid. 103(a)(1)

(“When the court hears objections to offered evidence out of the presence of the jury and

rules that such evidence be admitted, such objections shall be deemed to apply to such

evidence when it is admitted before the jury without the necessity of repeating those

objections.”).

In describing the risk that a person will re-offend, Dr. Proctor told the jury that to

him the word “likely” means “probable[]” and “that something that is probable is beyond 2 The term “likely” is not defined in the SVP statute. See Tex. Health & Safety Code Ann. § 841.002 (West Supp. 2012) (Definitions). However, the SVP statute uses the term “likely” in describing one of the conditions that is required for a person to be considered to be a sexually violent predator, as the statute requires that the person be one who “suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Id. § 841.003(a)(2) (West 2010) (Sexually Violent Predator). 6 a mere possibility for potential for harm.” On cross-examination, Dr. Proctor admitted

that the word “likely” is not defined in the SVP statute and that the ultimate issue of

whether a person has a behavioral abnormality cannot be measured empirically.

“‘When words are not specifically defined by the Legislature, they are to be

understood as ordinary usage allows, and jurors may freely read the statutory language to

have any meaning which is acceptable in common speech.’” In re Commitment of Kirsch,

No. 09-08-00004-CV, 2009 WL 2045238, at *6 (Tex. App.—Beaumont July 16, 2009,

pet. denied) (mem. op.) (quoting Teer v. State, 923 S.W.2d 11, 19 (Tex. Crim. App.

1996)). Bryan Garner provides this explanation of the term:

[L]ikely has different shades of meaning. Most often it indicates a degree of probability greater than five on a scale of one to ten. The probability is, of course, greater when the word is preceded by a qualifier such as quite, very, or extremely. But it may also refer to a degree of possibility that is less than five on that same scale.

BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 530 (2d ed. 1995).

Webster’s definition of the term “likely” indicates that it includes, among others, these

meanings:

1: of such a nature or so circumstanced as to make something probable [examples omitted] 2a: seeming to justify belief or expectation [examples omitted] b: having a better chance of existing or occurring than not : having the character of a probability [examples omitted].

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1310 (2002). The Texas Supreme

Court has explained that “the import of predisposition and likelihood is exactly the same:

7 increased risk.” In re Bohannan, No. 10-0605, 2012 Tex. LEXIS 734, at *16 (Tex. Aug.

31, 2012).

Dr. Proctor’s explanation of the term “likely” is consistent with how dictionaries

commonly define that term and with the Bohannan Court’s construction of the statute;

therefore, the trial court could reasonably determine that Dr. Proctor’s opinion

concerning Weatherread’s risk of recidivism was admissible as relevant evidence. See

Tex. R. Evid. 402 (“All relevant evidence is admissible, except as otherwise provided by

Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory

authority.”).

We conclude the trial court did not abuse its discretion in overruling

Weatherread’s objection to the admission of Dr. Proctor’s testimony. We overrule issue

two, and we affirm the trial court’s judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on September 28, 2012 Opinion Delivered November 29, 2012 Before Gaultney, Kreger, and Horton, JJ.