In The
Court of Appeals Ninth District of Texas at Beaumont _________________
NO. 09-11-00658-CV _________________
IN RE COMMITMENT OF WILLIAM ERNEST WASHINGTON
________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-05-05226-CV ________________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit William Earnest
Washington as a sexually violent predator under the Sexually Violent Predator Act.
See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012)
(SVP statute). A jury found Washington suffers from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence. Id. §
841.003. The trial court entered a final judgment and an order of civil commitment
under the Act. We affirm the judgment of the trial court.
1 Washington raises four issues on appeal. Washington argues that the Texas
Supreme Court‟s recent construction of the SVP statute renders the statute facially
unconstitutional under the Fourteenth Amendment, the trial court erred by allowing
testimony regarding the details of the underlying offenses in violation of Texas
Rule of Evidence 705(d), and the evidence is legally and factually insufficient to
support the judgment.
I. CONSTITUTIONAL CHALLENGE
In his first issue, Washington contends that in In re Commitment of
Bohannan the Texas Supreme Court construed the SVP statute in a manner that
“eliminated the requirement of a mental illness[.]” See generally In re
Commitment of Bohannan, 388 S.W.3d 296, 306 (Tex. 2012) (addressing the
relevance of a “medical diagnosis” in determining whether a person is a sexually
violent predator under the statute). Washington argues that the Supreme Court‟s
construction of the SVP statute renders the statute “facially unconstitutional” under
the Fourteenth Amendment‟s due process clause. We disagree with Washington‟s
reading of the Texas Supreme Court‟s decision in Bohannan. In In re Commitment
of Anderson, we recently stated “[w]e do not read the Bohannan opinion as
eliminating a statutory requirement, or as altering the proof required under the
statute to find that a person is a sexually violent predator.” In re Commitment of
2 Anderson, 392 S.W.3d 878, 886 (Tex. App.—Beaumont 2013, pet. denied). We
recognized that the Supreme Court in Bohannan did not “change the statute or
render it unconstitutional.” Id. at 885. We overrule Washington‟s first issue.
II. ADMISSION OF EVIDENCE
In his second issue, Washington argues that the trial court erred in allowing
testimony regarding the details of Washington‟s underlying offenses to be admitted
into evidence. Washington contends that the facts regarding his past offenses do
not have “any bearing on whether [he] suffers from a behavioral abnormality[,]”
and were used instead to inflame the jury.
The admission of evidence is reviewed under an abuse of discretion
standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998); In re Commitment of Salazar, No. 09-07-345 CV, 2008 WL 4998273, at *2
(Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A trial court
abuses its discretion when it acts without reference to any guiding rules or
principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558
(Tex. 1995). A judgment will not be reversed based on the admission of evidence
unless the appellant establishes that the trial court‟s ruling was in error and that the
error was reasonably calculated to cause and probably did cause the rendition of an
3 improper judgment. Salazar, 2008 WL 4998273, at *2; see also Tex. R. App. P.
44.1 (a).
Under Rule 705 of the Rules of Evidence, an 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. Tex. R. Evid. 705(a); In re Commitment of
Yaw, No. 09-08-042 CV, 2008 WL 5096511, at *1 (Tex. App.—Beaumont Dec. 4,
2008, no pet.) (mem. op.). Rule 705(d) provides as follows:
When the underlying facts or data would be inadmissible in evidence, the 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. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Tex. R. Evid. 705(d). “When an expert relies upon hearsay in forming his opinion,
and it is of a type reasonably relied upon by such experts, the jury is generally
permitted to hear it.” Salazar, 2008 WL 4998273, at *4.
Dr. Antoinette McGarrahan, a forensic psychologist, testified for the State.
Dr. McGarrahan explained that the facts related to Washington‟s past offenses
were relevant to her determination of whether Washington has a behavioral
abnormality. She stated that information contained in the records relating to past
behavior is generally relied upon by experts in her field in making these types of
4 determinations. Dr. McGarrahan testified regarding Washington‟s criminal history
and the facts related to his sexual and non-sexual offenses. She considered the
details of Washington‟s offenses as part of a “behavior pattern” that was relevant
to her determination of whether he has a behavioral abnormality.
The State‟s forensic psychiatrist, Dr. David Self, briefly testified to the facts
related to Washington‟s offenses. Like Dr. McGarrahan, Dr. Self testified that
historical information, such as the information found in Washington‟s records, is
important in determining how a behavioral issue has presented itself over the
course of a lifetime, across different environments. Dr. Self considered
Washington‟s past criminal history, including both convictions and non-conviction
offenses, in reaching his opinion. Dr. Self testified regarding facts related to
Washington‟s sexual offenses that he found relevant in his analysis and explained
that these facts showed a “stark pattern,” such as the fact that all the victims were
adolescent girls approximately fifteen years of age, that Washington frequented
school grounds and places where there were adolescent children, and that he had a
habit of portraying himself as an adolescent even into his mid-twenties.
Washington objected to the introduction of any testimony from the records
as hearsay, and argued that the prejudicial nature of that evidence substantially
outweighed its probative value. At Washington‟s request, the trial court gave the
5 jury a limiting instruction during Dr. McGarrahan‟s testimony. The trial court
instructed the jury that “hearsay is normally not admissible. However, certain
information obtained in records and reviewed by experts is allowed into evidence
through the expert‟s testimony[,]” and “is admitted for the purpose of showing the
basis of the expert‟s opinion.” The trial court provided a virtually identical
limiting instruction during Dr. Self‟s testimony. The trial court provided an
additional limiting instruction in the jury charge, wherein the court stated that
hearsay information contained in the records reviewed by the experts and admitted
before the jury “was admitted only for the purpose of showing the basis of the
experts‟ opinion[s] and cannot be considered as evidence to prove the truth of the
matter asserted.”
Trial courts have the discretion to admit the underlying facts or data on
which the expert has based his opinion. See Tex. R. Evid. 705(d); Boswell v.
Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 602 (Tex. App.—Fort Worth
1995, writ denied). Washington did not object to the trial court‟s limiting
instructions, nor did he request different or additional instructions at the time the
limiting instructions were given. Further, Washington did not object to the limiting
instruction contained in the jury charge.
6 We conclude the trial court properly applied Rule 705(d) by providing the
jury with limiting instructions. See Tex. R. Evid. 705(d). We presume the jury
followed the court‟s limiting instructions. See Day, 342 S.W.3d at 199; Yaw, 2008
WL 5096511, at *3 (citing Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642
S.W.2d 160, 167 (Tex. 1982)). Additionally, the trial court could have reasonably
concluded that the evidence at issue would help the jury understand how the
State‟s experts formed their opinions that Washington suffers from a behavioral
abnormality. Both experts explained the facts they considered in forming their
opinions and how those facts influenced their opinions. Considering the purpose
for which the facts related to Washington‟s offenses were admitted into evidence,
the trial court could have reasonably concluded that this evidence was not unfairly
prejudicial. See In re Commitment of Ford, No. 09-11-00425-CV, 2012 WL
983323, at *2 (Tex. App.—Beaumont Mar. 22, 2012, no pet.) (mem. op.); Day,
342 S.W.3d at 199. We overrule Washington‟s second issue.
III. SUFFFICIENCY OF THE EVIDENCE
In issues three and four, Washington argues that the evidence is legally and
factually insufficient to support a finding that Washington suffers from a
behavioral abnormality.
7 A. Applicable Law
Under the SVP statute, the State must prove beyond a reasonable doubt that
“the person is a sexually violent predator.” Tex. Health & Safety Code Ann. §
841.062(a). 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. § 841.003(a). The statute defines “„behavioral 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).
Because the SVP statute employs a beyond-a-reasonable-doubt burden of
proof, when reviewing the legal sufficiency of the evidence, we must assess all the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could find, beyond a reasonable doubt, the elements required
for commitment under the statute. In re Commitment of Mullens, 92 S.W.3d 881,
885 (Tex. App.—Beaumont 2002, pet. denied); In re Commitment of Myers, 350
S.W.3d 122, 130 (Tex. App.—Beaumont 2011, pet. denied). It is the responsibility
of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
8 evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Mullens, 92 S.W.3d at 887; Myers, 350 S.W.3d at 130. In reviewing the factual
sufficiency of the evidence in an SVP commitment case, we must weigh the
evidence to determine whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that compels ordering a new trial.
Day, 342 S.W.3d at 213; Myers, 350 S.W.3d at 130.
B. The Testimony
Dr. McGarrahan testified that in addition to reviewing over 1800 pages of
records, she met with Washington for approximately two and a half hours. Dr.
McGarrahan stated that her evaluation and interview were conducted in accordance
with her training as a psychologist and accepted standards in the field of
psychology. She testified regarding Washington‟s lengthy criminal history and
sexual offenses he committed against four different girls when each girl was
approximately fifteen years old.
Dr. McGarrahan told the jury that the record contained evidence that when
Washington was twenty-four years old he impregnated a fifteen-year-old girl after
engaging in a sexual relationship with her for several months. Washington was not
prosecuted for this offense. Later Washington was charged with sexual assault of a
child, indecency with a child, and injury to a child for an incident that occurred
9 with another fifteen-year-old girl. Though he was twenty-five years old at the
time, Washington told the victim he was nineteen. Washington was on probation
for credit card abuse at the time of this offense. Washington pled guilty to injury
to a child, and the other counts were dismissed. He was sentenced to two years in
prison but received shock probation. He served six months and was released on
probation. While on probation for credit card abuse, Washington was also charged
with aggravated robbery. However this charge was dismissed in lieu of his
conviction for injury to a child.
At age twenty-seven, Washington was charged with four counts of sexual
assault against a third victim, another fifteen-year-old girl. He was on probation at
that time for his prior conviction of injury to a child. The records related to this
offense indicate that Washington picked up the victim and a friend and offered to
take them to McDonalds. Instead Washington took the girls to his house where
“he made them drink several shots of alcohol” and sexually assaulted one of them.
Dr. McGarrahan testified that according to the records the girls alleged that “the
door was locked on the inside with a key[,]” which prevented them from leaving
until Washington fell asleep and they were able to locate the key. The third
victim‟s mother did not bring charges against Washington until he was arrested for
sexual assault against a fourth fifteen-year-old girl. The fourth victim alleged that
10 Washington gave her alcohol and prescription pills and then raped her.
Washington pled guilty to one count of sexual assault and was sentenced to ten
years confinement. Washington also pled guilty to one count of sexual assault of a
child for the offense committed against his third victim and was also sentenced to
ten years confinement in that case. Dr. McGarrahan further testified that the
records indicated there were four additional high school girls who made sexual
assault complaints against Washington; however, these complaints did not result in
convictions. Dr. McGarrahan testified that the evidence in the record established
that Washington “was perusing the five local high schools to pick up these young
girls.”
Dr. McGarrahan also testified regarding Washington‟s behavior problems in
prison. Dr. McGarrahan discussed disciplinaries Washington received in prison,
and explained that Washington received several for attempting to establish
inappropriate relationships with female guards and two for sexual misconduct. Dr.
McGarrahan explained that this is evidence of Washington‟s “difficulty
establishing boundaries.” In addition to reviewing records and meeting with
Washington, Dr. McGarrahan performed actuarial tests on Washington. She
testified that actuarial tests look “at characteristics of the individual that [have]
been proven to be risk factors” for re-offense. On the Static-99, Washington
11 scored a six, which puts him in a high risk category for engaging in sexual violent
offenses in the future. On the Minnesota Sex Offender Screening Tool-Revised,
Washington scored a ten, which also corresponds to a high level of risk for
engaging in a sexually violent offense after release. On the HARE psychology
checklist, Washington scored a 31, which indicates a very high level of
psychopathic characteristics.
According to Dr. McGarrahan, Washington “has a great deal of sexual
deviancy[,]” and a “significant degree of psychopathy . . . that allows him to
violate the rights of others easily and not feel bad about it.” Dr. McGarrahan stated
that Washington‟s sexual deviancy and psychopathy is untreated. Dr. McGarrahan
noted that just a few months before trial Washington was disciplined for following
around a female officer, trying to talk to her. She testified that Washington has
difficulty controlling his impulses, difficulty making good decisions, and that he
has not learned from the consequences of his actions. Dr. McGarrahan told the
jury that Washington‟s sexual deviancy, combined with his psychopathic
characteristics, put Washington at a high risk to engage in sexually-violent
behavior after his release. Dr. McGarrahan testified that using the definition of
behavioral abnormality as defined by the statute, it is her opinion that Washington
12 has a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence when he is released.
Like Dr. McGarrahan, Dr. Self also testified that the records indicated that
Washington frequented school grounds and other places where young girls
gathered, and that he had a habit of portraying himself as an adolescent even into
his mid-twenties. All of Washington‟s victims were young adolescent girls,
approximately fifteen years of age, and he exhibited a pattern of trying to seduce
them by intoxication. Dr. Self discussed Washington‟s psychopathic characteristics
and his poor institutional adjustment. Like Dr. McGarrahan, Dr. Self
acknowledged that Washington‟s disciplinary cases for attempting to establish
inappropriate relationships with female officers show a continuing problem with
boundaries. Dr. Self also testified that committing offenses while on supervised
release evidences a low level of self control.
Dr. Self testified that he diagnosed Washington with paraphilia not
otherwise specified with antisocial, narcissistic, and psychopathic traits. Dr. Self
explained these diagnoses to the jury and agreed that these conditions do not
“spontaneously [go] away.” Dr. Self testified that Washington is “in a group that‟s
at a pretty high risk” to reoffend. Dr. Self also testified that in his opinion,
13 Washington has a behavioral abnormality as defined by the Texas Health and
Safety Code.
The State also called Washington as a witness at trial. Washington told the
jury that he does not need sex offender treatment and that he has been treating
himself for the last nine and a half years.
C. Analysis
“[P]roof of serious difficulty in controlling behavior” is required in order to
civilly commit a defendant under a 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. Washington asserts that “[t]he only evidence the State presented at trial that
[he] currently has either a „condition‟ or serious difficulty controlling his behavior
was conclusory expert testimony.” Washington further contends the State‟s experts
did not offer a basis supporting their opinions that Washington currently has a
“condition” or serious difficulty controlling his behavior. We disagree.
Serious difficulty controlling behavior can be inferred from an individual‟s
past behavior, his own testimony, and the experts‟ testimony. In re Commitment of
14 Mosqueda, No. 09-10-00540-CV, 2011 WL 5988361, at *1 (Tex. App.—
Beaumont Dec. 1, 2011, no pet.) (mem. op.); see also In re Commitment of
Martinez, No. 09-05-493-CV, 2006 WL 2439752, at *4 (Tex. App.—Beaumont
Aug. 24, 2006, no pet.) (mem. op.). The record contains evidence that Washington
sexually assaulted at least four adolescent girls, and there are potentially four other
adolescent victims. Many of Washington‟s offenses were committed while he was
under supervision while on probation for prior offenses. Both experts testified that
Washington exhibited a pattern in the commission of his offenses. Both experts
discussed Washington‟s sexual deviancy and psychopathic characteristics. Dr.
McGarrahan specifically testified that Washington‟s “sexual deviancy remains
current, that his psychopathy or psychopathic characteristics remain current, that
he hasn‟t learned from negative consequences that come about from [his]
behaviors[.]” Dr. Self testified that he diagnosed Washington with paraphilia not
otherwise specified, non-consenting adolescents, and personality disorder, not
otherwise specified with antisocial, narcissistic, and psychopathic traits. Dr. Self
opined that Washington‟s sexual deviancy was “not going to go away,” and, at
most, with treatment Washington could “learn to avoid the circumstances that
make it likely for him to offend and given him strategies to avoid it.”
15 In addition, both experts testified regarding the disciplinaries Washington
received in prison for attempting to establish inappropriate relationships, as well as
his sexual misconduct. The jury heard testimony concerning Washington‟s risk
factors, actuarial test scores, criminal history, diagnoses, repeated sexual offenses,
and his continued issues recognizing and establishing appropriate boundaries while
in prison. The record established that Washington has never undergone sex
offender treatment, nor does he believe he needs treatment. Both experts testified
in their opinion, Washington has a behavioral abnormality that affects his
emotional or volitional capacity.
We conclude that both experts presented evidence-based support for their
opinions. See Day, 342 S.W.3d at 206. In addition, the State submitted proof
during the trial that Washington has serious difficulty controlling his behavior.
Viewing the evidence in the light most favorable to the jury‟s verdict, a rational
jury could have found beyond a reasonable doubt that Washington has a behavioral
abnormality that makes him likely to commit a predatory act of sexual violence.
See Mullens, 92 S.W.3d at 887. In addition, weighing all 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. Accordingly, we overrule issues three and four.
16 Having overruled all of Washington‟s appellate issues, we affirm the
judgment of the trial court.
AFFIRMED.
___________________________ CHARLES KREGER Justice
Submitted on November 26, 2012 Opinion Delivered June 13, 2013
Before McKeithen, C.J., Gaultney and Kreger, JJ.