Opinion issued November 21, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00682-CV ——————————— IN RE COMMITMENT OF WILLIAM KENNETH ROY
On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 113967-CV
MEMORANDUM OPINION
This is a civil commitment action under the Texas Civil Commitment of
Sexually Violent Predators Act (the SVP Act). See TEX. HEALTH & SAFETY CODE
§§ 841.001–.153. After the parties agreed to a bench trial, the trial court found,
beyond a reasonable doubt, that appellant William Kenneth Roy is a sexually violent
predator. The trial court signed a final judgment and commitment order committing Roy to involuntary treatment and supervision upon his release from prison on parole.
In two issues, Roy contends that the evidence is legally and factually insufficient to
support the “behavioral abnormality” element of the State’s case.
We affirm the trial court’s judgment and order of civil commitment.
Background
In January 2016, after a plea of guilty, the trial court convicted Roy of five
counts of sexual assault of a child and imposed five concurrent ten-year sentences
in the Texas Department of Criminal Justice.
In August 2021, after Roy had served over seven years of his sentence1 and
prior to his release on parole, the State petitioned to have him deemed a sexually
violent predator (SVP) subject to civil commitment under the SVP Act. See id. §
841.081. The case proceeded to a bench trial and the trial court heard from two
witnesses: Roy and the State’s expert, Dr. Christine Reed.
A. Roy
At the time of the commitment proceeding, Roy was twenty-eight years old
and had served roughly nine-and-a-half years of his ten-year sentence. He testified
that he “started acting out sexually” from an early age. Roy stated that in November
2005, at the age of twelve, Roy committed a sexual offense against his half-sister,
1 At the time of his conviction, Roy received credit for almost three years of time served. 2 who was seven at the time. Roy testified that he forced his mouth to her vagina,
stating that he was not sexually attracted to her but “curious.” He acknowledged that
he had been watching pornography around the time of the offense. Though he could
not recall the exact age, Roy testified that he was “pretty young” when his cousin
introduced him to pornography.
Roy testified that a few months after the assault of his half-sister, he had
sexual contact with his half-brother, aged three. Roy stated that he had asked his
half-sister if he could put his mouth on her vagina again, and when she refused, he
turned to his half-brother. Roy denied any sexual attraction to his half-brother but
admitted that he knew his conduct with his siblings was wrong and that he was
sexually aroused during both offenses. After the assault of his half-brother, his half-
brother and half-sister made outcries to his stepmother (their mother), who reported
the incidents to law enforcement.
Eventually, the charges relating to Roy’s half-sister were reduced to injury to
a child, and the charges concerning his half-brother were dropped. The trial court
determined that Roy engaged in delinquent conduct, namely, bodily injury to his
half-sister, and placed him on probation for four years, subject to various conditions.
Roy testified that even though he understood the probation requirements and the risk
that he could be sent to Texas Youth Commission (TYC) if he violated those terms,
he violated those conditions “several times.” Roy testified that he “had two
3 violations for watching pornography,” “one for tardies at school,” and “one for
fighting at school.” When questioned at trial, Roy denied that he was suspended from
school for touching a female student inappropriately. He testified that he became
involved with a gang during his probation period and engaged in criminal activity as
part of the gang. In total, Roy acknowledged nine probation violations but testified
that he never failed a drug test or violated his curfew. Roy stated that his probation
was extended for an additional eighteen months because of his probation violations.
Roy lived with several different family members, including his father, mother,
grandmother, and grandfather, during his probation. Roy admitted getting into
trouble for downloading pornography at his grandmother’s house and testified that
he was ordered to live at Pegasus Schools and attend sex offender treatment at that
facility. Roy stated that he remained at Pegasus for approximately a year and a half,
but “did not like being there” and “[had] problems” with participation in therapy and
talking back to staff.
Roy testified that although he made disclosures concerning sexual fantasies
about his half-sister and half-brother during his time at Pegasus, he fabricated these
fantasies after failing a polygraph wherein he was asked to disclose all his sexual
offenses and sexual fantasies. Roy testified that he was told if he did not pass the
polygraph, he would be sent to TYC. He also testified that he made additional untrue
reports while at Pegasus, including one concerning a sexual fantasy involving
4 putting a shock collar on his grandmother and sexually assaulting her, and another
about “having sex with dead females.” Roy admitted that, during his treatment at
Pegasus, he also reported engaging in sexual activity with two of his cousins, one
male and one female, from the ages of seven to twelve. He did not claim these reports
were false. Roy testified that he was unsuccessfully discharged from Pegasus for
“failing a polygraph” and that he was written up for stealing from a staff member.
After his initial discharge from Pegasus, Roy lived with his grandfather. Roy
testified that he violated his probation by watching pornography at his grandfather’s
house. Following a motion to revoke, the Court extended Roy’s probation until his
eighteenth birthday and ordered him to return to Pegasus. At trial, Roy denied that
he reported the sexual fantasies concerning his grandmother, half-sister, and half-
brother a second time when he returned to Pegasus. He testified that he was released
six to nine months later but was still on probation at that time.
Roy stated that his probation was then revoked for “tardies” at school. He also
acknowledged that another condition of his probation prevented him from being
around other children without adult supervision and that he violated this condition
with his girlfriend, though he disputed her age.2 In January 2011, the court revoked
Roy’s probation and committed him to TYC until he turned nineteen.
2 Roy testified that the condition prevented him from being alone with someone under eighteen but that he believed his girlfriend was eighteen. However, the order
5 Roy testified that he was in TYC for approximately one year. During that time,
he participated in voluntary sex offender treatment, not because he had a problem
with “sexual issues,” but because he “just felt like there was more that [he] could
learn.” Though Roy got into a fight and had some “referrals” for disrespecting staff
at TYC, he did not engage in any sexual misconduct during his time there and was
released early on parole. Later, in July 2012, Roy was discharged from parole after
completing his sentence. He testified that at that point, he knew what he did to his
siblings in 2005 was wrong but he denied any ongoing problem.
In total, Roy spent approximately six years in sex offender treatment. He
testified that the treatment was helpful because it gave him “a more in-depth way of
seeing things,” taught him about everyday life, and how to be a positive person.
Roy testified that after his release from TYC, he lived with his girlfriend. His
girlfriend regularly babysat a four-year-old girl at the couple’s home. Though Roy
denied ever being alone with the girl, or any sexual attraction to her, he pleaded
guilty to five counts of sexual assault against her and received a sentence of ten
years’ confinement. Specifically, on January 15, 2016, the trial court convicted Roy
of the following: (1) intentionally and knowingly causing the penetration of the
revoking Roy’s probation was admitted as an exhibit during the commitment proceedings and stated that as a condition of his probation, Roy was to refrain from contact with a minor under the age of fifteen. The order found that Roy violated this condition. 6 child’s vagina with Roy’s finger; (2) intentionally and knowingly causing the
penetration of the child’s vagina with his penis; (3) intentionally and knowingly
causing the penetration of the child’s anus with an unknown object; (4) intentionally
and knowingly causing the penetration of the child’s vagina with a pen; and (5)
intentionally and knowingly causing the child’s vagina to contact Roy’s mouth.
During the hearing, Roy denied having committed any of these offenses.3
At the time of the commitment hearing, Roy remained incarcerated for the
offenses against the four-year-old. He testified that he had been written up for rule
violations and received “disciplinaries” for refusing to work, refusing orders, tattoos,
and tattoo paraphernalia, though none for sexual misconduct. Roy admitted that
several of his new tattoos were gang related but denied any ongoing involvement
with a gang, explaining that the tattoos were his way to remember his time in the
gang. He testified that he received a disciplinary in December 2019 for threatening
an officer. He noted that he did not receive any citations relating to drugs or alcohol
while in prison.
Regarding any further sex offender treatment, Roy testified that “if somebody
that has a higher education than [him] that studies this feels like [he needs it], then
[he] need[s] it.” However, Roy denied having any “sexual issues” that he needed to
3 Dr. Reed testified that during their interview, Roy told her that he pleaded guilty because he was facing life in prison and his mother asked him to accept the plea. 7 work on in sex offender treatment. Roy testified that in his treatment, he learned
about triggers that could lead to sexual offending. Roy stated that his triggers
included unstable environments. He testified that he was not at risk for reoffending,
but he needed to stay away from children to avoid being falsely accused. Roy stated
that he would be willing to continue sex offender treatment following his release but
also testified that he did not need it. He testified that if he could, he would tell his
half-brother and half-sister: “I apologize.” Roy ultimately admitted that what
happened was “totally [his] fault.” He claimed he would not reoffend because “it’s
not in [him]” and “that’s not who [he is].”
Roy testified that while in prison, he completed a six-month culinary arts
program and would like to pursue employment in that area upon release. He also
participated in a class called “CHANGES,” which he described as helping to identify
risk factors, learning new ways of thinking, and identifying “what led you down the
wrong path and how to prevent it from happening again.” Roy stated that following
his release, he planned to reside with his mother.
B. Dr. Christine Reed
Dr. Reed, a clinical and forensic psychologist, evaluated Roy and testified that
in her opinion, Roy suffers from a behavioral abnormality.
Dr. Reed has a bachelor’s degree in psychology and a doctorate in clinical
psychology. She completed a postdoctoral fellowship in forensic psychology. Since
8 that time, she has been in private practice, conducting forensic assessments. These
include determinations as to whether a person is competent to stand trial, insanity
evaluations, risk assessments for general criminal recidivism, and sex offender risk
assessments. She has been conducting behavioral abnormality evaluations since
2011.4 She is licensed in Texas and California.
In conducting a behavioral abnormality evaluation, Dr. Reed’s methodology
includes a review of the relevant records (documentation of past offenses, juvenile
history, mental health and treatment records, and jail or prison records) and a clinical
interview, either in person or via teleconference, followed by completion of a sexual
history questionnaire and other testing. Dr. Reed then compiles this information to
form her opinion as to whether an individual has a behavioral abnormality. In this
case, Dr. Reed reviewed over 3,000 pages of records and conducted a three-and-a-
half-hour interview. She also reviewed the report of Dr. Turner, another psychologist
who evaluated Roy prior to her involvement, and determined that Roy suffered from
a behavioral abnormality.
4 The trial court’s findings of fact state that Dr. Reed “has been conducting behavioral abnormality evaluations since 2012”: however, Dr. Reed testified that she has been conducting these evaluations “since around 2011.” 9 1. Risk Factors
According to Dr. Reed, the two main risk factors for sexual recidivism, or
reoffending sexually, are sexual deviance and an antisocial orientation. Dr. Reed
identified both risk factors in Roy.
Sexual deviance means sexual behaviors, including urges and fantasies, that
deviate from what is considered normal. She testified that the most extreme example
is pedophilia, which society considers deviant and abnormal. It is significant here
that Roy has been convicted of sexually violent offenses against a child.
Dr. Reed diagnosed Roy with antisocial personality disorder. She explained
that this is a long-standing pattern of violation of the rights of others or engaging in
acts that are potentially illegal or criminal. This may also be shown by
aggressiveness, a lack of remorse, deceitfulness, and impulsivity. In Roy’s case, the
records reflect a history, beginning at an early age, of sexual offenses, theft,
supervision problems, and difficulty following the rules. She also identified his
involvement in a gang, probation violations, and other violations while at TYC as
supporting a diagnosis of antisocial personality disorder.
2. Sexual Offending History
According to the records, Roy began committing sexual offenses as a juvenile.
In 2005, at the age of twelve, Roy assaulted his seven-year-old half-sister. His half-
10 sister reported that even though she told him “no,” Roy placed his mouth on her
vagina, touched her breasts, and kissed her neck while their parents were asleep.
Roy’s half-brother reported that Roy put his penis in his half-brother’s mouth
and penetrated his half-brother’s anus with his penis on more than one occasion.
Roy’s half-brother was three at the time. Reports indicate Roy also performed oral
sex on his half-brother on one occasion and had his half-brother perform oral sex on
him twice. Roy admitted to some, but not all, of these sexual assaults against his
half-sister and half-brother. Dr. Reed testified that she found it significant that Roy
minimized or denied the acts during her interview, because he previously admitted
to some of the acts in the records she reviewed. Dr. Reed classified these offenses as
sexually deviant because Roy committed them against his siblings and because of
the relatively young ages of Roy and his siblings. Dr. Reed testified that even though
the charges related to Roy’s half-brother were dropped, and the charges pertaining
to his half-sister were reduced, she still considered all the available information in
forming her opinions because what is important is what actually occurred, not the
ultimate charge or disposition.
3. Protective Factors
Dr. Reed testified that protective factors are considerations that reduce the risk
of reoffending. In Roy’s case, she pointed to his participation in sex offender
treatment (although she noted he was discharged unsuccessfully three times prior to
11 completion). Dr. Reed also identified his lack of substance abuse problems and his
support system within the community, particularly his mother, as protective factors.
However, she explained that these protective factors did not outweigh his risk
factors, particularly in the case of his sex offender treatment, because he reoffended
after completing treatment.
4. Diagnoses
Based on her assessment, Dr. Reed diagnosed Roy with pedophilic disorder
and antisocial personality disorder. She testified that pedophilic disorder means that
the individual commits acts or has urges and fantasies involving prepubescent
children. Here, Roy was convicted on five counts of sexual assault of a four-year-
old girl when he was nineteen. Dr. Reed testified that pedophilic disorder is a
congenital or acquired condition that can affect a person’s emotional or volitional
capacity and is chronic in nature. She explained that even though Roy had not
committed a sexual offense against a child in the ten years following his conviction,
this did not mean he was cured of his pedophilia because he has not been in treatment
in prison and did not have access to potential underage victims in prison.
As to the antisocial personality disorder, Dr. Reed testified that it includes a
long-standing pattern of violations of the rights of others and engaging in acts that
are potentially illegal or criminal. Regarding Roy, Dr. Reed noted his early history
of sexual offenses, theft, problems with supervision, gang involvement, and
12 probation violations. She described antisocial personality disorder as a congenital or
acquired condition that affects someone’s emotional or volitional capacity. To meet
the criteria, one has to have a longstanding pattern of behavior, so the condition tends
to be chronic, although it can diminish with age.
Dr. Reed also concluded that Roy had a “rule out” for paraphilic disorder. She
explained that a “rule out” meant that she did not have enough information for a
specific diagnosis of the disorder, but it was a consideration based on the information
available. Dr. Reed testified that a paraphilic disorder is a “catchall” diagnosis given
when there is not enough information to make a more specific diagnosis, but
indications of another diagnosis are present. For example, in Roy’s case, Dr. Reed
noted instances of bestiality and references to fantasies about sexual acts with dead
people, as well as violent elements of raping and wanting to inflict harm, that
appeared sadistic in nature. However, she did not have sufficient information to
support a diagnosis of zoophilia or necrophilia.
5. Test Results
Dr. Reed evaluated Roy using the Psychopathy Checklist-Revised (PCL-R),
which she explained is a measure of psychopathy or psychopathic traits. The
maximum score on the PCL-R is 40, and a score of 30 and above is considered a
psychopath. Dr. Reed gave Roy a score of 27, which she testified is considered
“high” in traits of psychopathy.
13 Dr. Reed also scored Roy on the Static-99R, which is a measure of the risk of
reoffending. One of the factors considered by the Static-99R is the individual’s age.
Dr. Reed testified that Mr. Roy’s age of twenty-eight (twenty-nine at the time of
release) places him in the highest risk category, because research suggests that as a
person ages, their risk of reoffending declines. Dr. Reed testified that she initially
scored Roy as a 4 out of possible 13, but after learning additional information about
his victims, she would give him a 5. Dr. Reed explained that either a 4 or a 5 would
put Roy in the above-average risk category for reoffending. A score of 6 is needed
to place an individual in the highest risk category.
Dr. Reed also evaluated Roy using the Risk of Sexual Violence Protocol
(RSVP), which she described as a “list of other risk factors for reoffending.” Dr.
Reed outlined the risk factors she identified in Roy from this checklist, including:
(1) chronicity of sexual violence; (2) escalation of sexual violence; (3) physical
coercion in sexual violence; (4) psychology coercion in sexual violence; (5) extreme
minimization and denial of sexual offenses; (6) problems with self-awareness; (7)
sexual deviance; (8) major mental illness5; (9) problems with intimate relationships;
(10) problems with employment; (11) problems with planning; (12) problems with
treatment; and (13) problems with supervision.
5 Dr. Reed testified that, based on the records she reviewed, Roy had a “long history” of major depressive disorder, bipolar disorder, and anxiety disorder. She stated that Roy was being treated with an antidepressant for depression and anxiety. 14 6. Sex Offender Treatment
Dr. Reed testified that Roy’s most recent parole case summary indicated he
had a “high” need for sex offender treatment. In her opinion, Roy does not have a
good understanding of what he learned from his prior sex offender treatment. While
Roy could use some of the phrases he learned in treatment, he struggled to explain
what those phrases mean. Further, Roy testified to having difficulty in treatment and
being unsuccessfully discharged.
Dr. Reed explained that although Roy acknowledged his high-risk situations
are those where he felt he lacked control or felt trapped, he could not explain or
understand how this played a role in his prior offenses. For example, when she asked
Roy about the offense with his younger half-sister, he said he committed the offense
because he was “just curious.” This concerned Reed because, despite his years of
treatment, he still did not appreciate what caused his behavior or how to prevent it
from happening. She further testified that Roy could not explain his “relapse
prevention plan,” which she noted was a “[p]retty standard term from sex offender
treatment.” Regarding the “CHANGES” program, Dr. Reed testified that this was
not sex offender treatment. Dr. Reed opined that Roy did not have the tools or insight
necessary to manage and control his sexual deviance or prevent future offenses.
15 7. Behavioral Abnormality
Dr. Reed opined that Roy suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. She testified that this
abnormality derives from his antisocial orientation, his psychopathic traits that allow
him to violate the rights of others, his displayed lack of empathy or remorse, and his
demonstrated sexual deviance or sexually deviant thoughts.
Sufficiency of the Evidence
In his first and second issues, Roy contends that the evidence is legally and
factually insufficient to support the “behavior abnormality” element of the State’s
case.
A. Standard of Review and Applicable Law
A commitment proceeding under the SVP Act is a civil proceeding that
incorporates the “beyond a reasonable doubt” standard of proof typically reserved
for criminal cases. In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020)
(explaining that SVP proceeding is “rare civil case in which the burden of proof is
beyond a reasonable doubt”). Thus, in reviewing verdicts in SVP cases for legal
sufficiency of the evidence, we use the appellate standard of review applied in
criminal cases. Id.; see also In re Commitment of Summers, No. 01-19-00738-CV,
2021 WL 3776751, at *11 (Tex. App.—Houston [1st Dist.] Aug. 26, 2021, no pet.)
(mem. op.).
16 Applying the legal sufficiency standard in criminal cases in the context of an
SVP commitment proceeding, we assess 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 Act. See In
re Commitment of Stoddard, 619 S.W.3d at 675; see also In re Commitment of
Summers, 2021 WL 3776751, at *11. “It is the fact finder’s responsibility to fairly
resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences from basic to ultimate facts.” In re Commitment of Summers, 2021 WL
3776751, at *11 (quoting In re Commitment of Stuteville, 463 S.W.3d at 551); In re
Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet.
denied) (stating fact finder may resolve conflicts and contradictions in evidence “by
believing all, part, or none of the witnesses’ testimony”).
In evaluating a factual sufficiency challenge to the evidence, we must
“determine whether, on the entire record, a reasonable factfinder could find beyond
a reasonable doubt that the defendant is [a sexually violent predator].” In re
Commitment of Stoddard, 619 S.W.3d at 668. The assumption that the factfinder
resolved disputed evidence in favor of the finding if a reasonable factfinder could do
so remains. Id. at 674. However, rather than “disregard” disputed evidence that a
reasonable factfinder could not have credited in favor of the finding, the court must
determine whether, in light of the entire record, that evidence “is so significant that
17 a factfinder could not reasonably have formed a firm belief or conviction” that the
finding was true. Id. In an SVP case where the burden of proof is beyond a
reasonable doubt, the evidence is factually insufficient if, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited in favor
of the SVP finding, along with the undisputed facts that do not support the finding,
is so significant that the factfinder could not have found beyond a reasonable doubt
that the statutory elements were met. Id. at 675.
In an SVP civil commitment case, the State must prove beyond a reasonable
doubt that a person is a sexually violent predator. See TEX. HEALTH & SAFETY CODE
§ 841.062(a). 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.6 Id. § 841.003(a). 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).
6 On appeal, Roy challenges only the sufficiency of the evidence to support the “behavioral abnormality” element of the SVP determination; he does not contest that he is a “repeat sexually violent offender.”
18 B. Legal Sufficiency
Roy argues that the evidence is legally insufficient to support the “behavioral
abnormality” element of the State’s case because the evidence presented at trial
“cannot support a finding that [Roy’s] risk to sexually reoffend is anything more
than ‘above average’ or ‘probable, beyond a mere possibility.” Roy’s argument
focuses on the phrase “likely to engage in a predatory act of sexual violence” as
found in the SVP Act’s definition of “sexually violent predator.” See id. §
841.003(a).
Roy claims that case law does little to explain this language or the “behavioral
abnormality” requirement as a whole; therefore, we should consider the SVP Act’s
legislative history, particularly, the Legislature’s findings that Chapter 841 was
meant to apply to “high risk” sex offenders.7 Roy further contends that because the
Legislature intended the SVP Act to apply to “high risk” offenders, and because
Roy’s risk to sexually reoffend is only “above average” or “probable, beyond a mere
possibility,” the evidence is legally insufficient to support the trial court’s judgment.
We decline any invitation by Roy to impose a more stringent burden of proof
than that required by the SVP Act. In rejecting a similar argument, the El Paso Court
7 See TEX. HEALTH & SAFETY CODE § 841.001 (“The legislature finds that a small but extremely dangerous group of sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory acts of sexual violence.”). 19 of Appeals noted that “[c]ourts have uniformly rejected attempts by appellants to
incorporate additional sub-requirements into the elements of the SVP Act.” In re
Commitment of Brown, 656 S.W.3d 418, 430 (Tex. App.—El Paso 2022, no pet.)
(citing In re Commitment of Stoddard, 619 S.W.3d at 677; In re Commitment of
Williams, 539 S.W.3d 429, 438–39 (Tex. App.—Houston [1st Dist.] 2017, no pet.);
In re Commitment of Hall, No. 09-09-00387-CV, 2010 WL 3910365, at *2–3 (Tex.
App.—Beaumont Oct. 7, 2010, no pet.) (mem. op.)). Similarly, in reversing the
decision of the court of appeals, the Stoddard court denounced the lower court’s
focus on the “small but extremely dangerous group” language contained withing the
SVP Act’s legislative findings, because this language “is not part of the statute’s
definition of ‘sexually violent predator’ and was not an element the jury was required
to find.” 619 S.W.3d at 677.
As this Court recently observed, Stoddard “clarified that the two statutory
elements—repeat sexually violent predator and behavioral abnormality—are the
only factors courts should consider in a sufficiency review.” In re Commitment of
Atchison, No. 01-22-00424-CV, 2023 WL 4003066, at *7 (Tex. App.—Houston [1st
Dist.] June 15, 2023, no pet.) (mem. op.); see also In re Commitment of Summers,
2021 WL 3776751, at *14 (summarily dismissing request to consider whether
appellant was part of “small but extremely dangerous group” mentioned in
legislative findings in light of holding in Stoddard); In re Commitment of Tryon, 654
20 S.W.3d 29, 38 (Tex. App.—Eastland 2022, pet. denied) (noting “Stoddard has
clearly foreclosed” argument that “behavioral abnormality” element must be
construed as incorporating SVP Act’s legislative findings and legislative history); In
re Commitment of Ausbie, No. 14-18-00167-CV, 2021 WL 1972407, at *11 (Tex.
App.—Houston [14th Dist.] May 18, 2021, pet. denied) (mem. op.) (declining to
examine legislative history to construe intended meaning of “behavioral
abnormality” in light of Stoddard). Considering the foregoing authorities, we reject
Roy’s argument that we must look beyond the plain language of the statute to
determine whether the evidence is legally sufficient to support a finding that he
meets the legislatively intended definition of “behavioral abnormality.”
We next consider Roy’s arguments that generally, the State did not present
legally sufficient evidence to support the “behavioral abnormality” element of its
case. To summarize, the trial court heard testimony from Roy, in which he admitted
that he sexually assaulted his seven-year-old half-sister and three-year-old half-
brother. Roy also testified that he engaged in sexual contact with two different
cousins over a period of five years, beginning when he was seven. Further, the trial
court heard about Roy’s plea of guilty to and conviction for five counts of sexual
assault of a four-year-old girl, for which he was serving five, concurrent ten-year
sentences. Though Roy denied sexually assaulting the four-year-old, as the sole
judge of the weight and credibility of the evidence, the trial court was free to
21 disregard this testimony. See In re Commitment of Mullens, 92 S.W.3d at 887. The
trial court was also free to disregard Roy’s self-serving testimony that he was not at
risk of reoffending. See id.
The trial court also had before it the testimony of Dr. Reed, the State’s expert,
who testified that Roy suffered from a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence. Roy did not present a competing
expert. Dr. Reed explained her methodology, which followed what courts have
found to be the standard, accepted practice within her field. See, e.g., In re
Commitment of Bohannon, 388 S.W.3d 296, 305 (Tex. 2012) (noting that approach
of all three experts in SVP case was “consistent with the little guidance provided by
the [SVP] Act,” where experts “[a]ll agreed that in assessing whether a person has
the behavioral abnormality for an SVP, all available information should be
considered, and that the person should be interviewed”; experts also “suggest[ed]
that a medical diagnosis should be made and actuarial risk test should be applied”);
In re Commitment of Brown, 656 S.W.3d at 431 (holding evidence legally sufficient
in SVP case and outlining forensic psychologist’s “holistic evaluation,” which
included consideration of protective and risk factors, Static-99 and PCL-R, “a
practice both well-accepted in the forensic psychology community and founded on
extensive factual support”); In re Commitment of Cordova, 618 S.W.3d 904, 917
(Tex. App.—El Paso 2021, no pet.) (and cases cited therein).
22 Dr. Reed outlined the various assessments she performed, the records she
reviewed, and the results of her hours-long interview with Roy. From Dr. Reed, the
trial court heard that Roy suffers from pedophilic disorder and antisocial personality
disorder and possesses psychopathic traits. Dr. Reed testified that Roy’s disorders
affect his emotional and volitional capacity and are chronic in nature. Again, Roy
did not present any evidence, other than his own testimony, to refute Dr. Reed’s
determinations.
Viewing the evidence in the light most favorable to the verdict, we conclude
that the trial court, as the factfinder, could have found beyond a reasonable doubt
that Roy is a sexually violent predator under the SVP Act. See Stoddard, 619 S.W.3d
at 675. We overrule Roy’s first issue.
C. Factual Sufficiency
In his second issue, Roy challenges the factual sufficiency of the evidence to
support the “behavioral abnormality” element of the State’s case. Roy argues that
the evidence is factually insufficient because “it is undisputed that Mr. Roy[’s] risk
to sexually reoffend cannot be anything more than ‘above average’ or ‘beyond a
mere possibility’”; Roy scored less than a “30” on the PCL-R; and “the State agreed
to dispose of the five-count indictment in Mr. Roy’s 2013 case with a generous plea
bargain.”
23 First, we disagree with Roy’s characterization that his risk of reoffending is
no more than “above average.” While Dr. Reed scored Roy in the “above average”
category of the Static 99-R, this was only one component of her analysis. Dr. Reed
testified that there are other risk factors that are important to consider outside of the
Static 99-R. See Barrientes v. State, No. 14-22-00023-CV, 2023 WL 1169022, at *4
(Tex. App.—Houston [14th Dist.] Jan. 31, 2023, no pet.) (mem. op.) (rejecting
factual sufficiency argument regarding appellant’s placement in “average risk”
category of Static-99; court noted Dr. Reed’s testimony in that case that Static-99
was “just one piece of the puzzle” that does not capture all aspects of likelihood to
reoffend); see also In re Commitment of Williams, 539 S.W.3d at 440 (determining
even “low-moderate” Static-99R score did not render evidence factually insufficient
if other evidence in record supported finding of behavioral abnormality). In Roy’s
case, Dr. Reed also observed thirteen other risk factors, as detailed above, using the
RSVP checklist.
Similarly, the fact that Roy scored less than “30” on the PCL-R does not
render the evidence factually insufficient. Dr. Reed’s evaluation of Roy used a
holistic approach, considering not only his test results but also his criminal history
and past behavior, including conduct that did not result in criminal charges, his
treatment records, and his own statements during their interview. It is the province
of the factfinder to weigh the evidence against conflicting evidence, such as Roy’s
24 own testimony. See Barrientes, 2023 WL 1169022, at *4. The court was free to
accept or reject Dr. Reed’s opinions. See Atchison, 2023 WL 4003066, at *8 (citing
Stoddard, 691 S.W.3d at 668).
Considering the entire record, we determine that any disputed evidence that a
reasonable factfinder could not have credited in favor of the SVP determination,
along with the undisputed facts that do not support the finding, is not so significant
that the trial court could not have found beyond a reasonable doubt that the statutory
elements were met. See Stoddard, 691 S.W.3d at 668. We overrule Roy’s second
issue.
Conclusion
We affirm the trial court’s judgment and order of civil commitment.
Amparo Monique Guerra Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.