in Re the Commitment of Fernando Thompson

• Court: Court of Appeals of Texas
• Decided: April 13, 2006
• Docket: 09-05-00434-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-434 CV

IN RE COMMITMENT OF FERNANDO THOMPSON

On Appeal from the 410^th District Court

Montgomery County, Texas

Trial Cause No. 04-12-10586 CV

MEMORANDUM OPINION

The trial court ordered civil commitment of appellant Fernando Thompson as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-841.150 (Vernon 2003 & Supp. 2005). A "sexually violent predator" is 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. Section 841.002(2) 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). Thompson challenges the legal and factual sufficiency of the evidence he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.

The statute requires the State prove a person meets the "sexually violent predator" criteria beyond a reasonable doubt. ⁽¹⁾ See id. § 841.062(a); In re Commitment of Fisher, 164 S.W.3d 637, 641 (Tex. 2005), cert. denied, 126 S.Ct. 428 (2005). Because this is the same burden of proof required in criminal cases, although this is a civil proceeding, we apply the appellate standard of review used in criminal cases for sufficiency of the evidence. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.--Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In a legal sufficiency review, we review all of the evidence in a light most favorable to the verdict and examine whether a rational factfinder could have found, beyond a reasonable doubt, that Thompson suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Mullens, 92 S.W.3d at 885. In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether the fact finder was rationally justified in that finding. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

"[P]roof of serious difficulty in controlling behavior" is required. 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.

Although Thompson waived his right to appear at trial, the State presented Thompson's testimony by videotape deposition, and a transcription of the deposition is included in the record. Records from the Texas Department of Criminal Justice relating to Thompson show he was convicted of rape in 1975 and granted ten years probation. ⁽²⁾ Thompson's probation was revoked in 1976. He was charged with attempted rape, but the charge was dismissed. Thompson was sentenced to ten years confinement for the 1975 rape conviction. He was paroled in 1980, but was returned as a parole violator in 1982 due to an arrest for rape committed in 1981. Thompson pled guilty and was given ten years deferred adjudication. In 1983, Thompson was convicted of aggravated rape of a child. He received a thirty-year sentence for the 1983 offense and a twenty-year sentence for the 1981 offense, to be served concurrently. He was released in 1993 on mandatory supervision and returned in February, 1995 for failing to report a change of address. Thompson was released again in 2001, but returned for violating the mandatory supervision order in 2002.

Dr. Sheri Gaines, a psychiatrist, testified for the State. Dr. Gaines performed an evaluation of Thompson to determine whether he met the statutory definition of a sexually violent predator. See §§ 841.003, 841.023. She based her evaluation on an interview with Thompson, previous evaluations of Thompson by other mental health professionals, and Thompson's Texas Department of Criminal Justice records. According to Dr. Gaines, Thompson suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See § 841.003(a)(2). Based on the interview and the other records she reviewed, Dr. Gaines diagnosed Thompson with sexual sadism, alcohol dependence, and antisocial personality disorder. Dr. Gaines concluded Thompson has a "behavioral abnormality" as defined by the sexually violent predator statute. See id. at § 841.002(2). In Dr. Gaines's expert opinion, Thompson is impulsive and has difficulty controlling his sexual urges. Dr. Gaines observed that Thompson did not exhibit any remorse when he spoke about his offenses, he blamed his victims, and he gloated about the offenses. Dr. Gaines described him as self-important and manipulative. She explained that her diagnosis of sexual sadism was based on the fact that "he was physically abusive and he was aroused by the domination of his victims." Although she does not consider herself to be an expert on actuarials, she testified Thompson's results indicated he scored in the psychopathic range on the Hare Psychopathy Checklist, which was consistent with her impression of him. Dr. Gaines identified specific risk factors regarding Thompson's likelihood to sexually re-offend: his victims were strangers, he used violence, he committed his offenses in relatively public places, he admitted being intoxicated when he committed most of the offenses, his offenses began when he was young and have continued over a long period of time, and he has an anger management problem. She testified as to the possibility that Thompson's domination of women might escalate into something more serious than rape if he is not committed, because she is almost certain Thompson would not voluntarily participate in a sex offender treatment program.

Thompson challenged her opinion that he is a danger to society and likely to reoffend. Gaines testified on cross-examination that if he participates fully in alcohol abuse and sex offender treatment programs, his risk of re-offending would slightly decrease, although everything she observed and read regarding Thompson indicated to her that he would not fully participate in the programs. While she agreed a positive support system could lower Thompson's likelihood of re-offending, she stated evidence of a positive support system would not change her opinion that he meets the statutory criteria for a sexually violent predator.

Dr. Stephen Thorne, a clinical psychologist, testified for the defense. Dr. Thorne assessed Thompson after reviewing two previous psychological evaluations by other doctors, medical records, and Texas Department of Criminal Justice records. Dr. Thorne did not perceive Thompson's demeanor to be threatening in his interview of Thompson or in the videotape deposition played at trial. Dr. Thorne testified he believed Thompson had been drinking heavily at the time of all the offenses. Dr. Thorne did not observe any remorse by Thompson, but felt like Thompson knew what he did was wrong. Dr. Thorne diagnosed Thompson with antisocial personality disorder, but testified he was "reluctant to make the sexual sadism diagnosis" because Thompson was under the influence of alcohol at the time of his offenses. Dr. Thorne further testified that although he was not confident in saying Thompson would not engage in any type of sexually violent behavior in the future, if Thompson abstained from alcohol and a support system was in place, his risk level for recidivism would be lowered.

On cross-examination, Dr. Thorne acknowledged the records he reviewed indicated the sexual offenses all involved physical violence. He testified he administered actuarials that placed Thompson in the range of a psychopath and revealed he is at a high risk for re-offending. On cross-examination Dr. Thorne agreed that Thompson has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence; and he thinks Thompson's past "makes you at least have to be concerned" that he will have difficulty controlling his sexual behavior. Dr. Thorne believes Thompson's alcoholism, history of violating mandatory supervision or probation conditions, and lack of motivation regarding sex offender treatment increase Thompson's likelihood to recidivate.

Thompson contends Dr. Gaines's testimony that Thompson suffers from sexual sadism and antisocial personality disorder was unsubstantiated speculation and conclusory evidence and constitutes no evidence. Thompson also argues the State failed to explain how these diagnoses establish a behavioral abnormality as defined by section 841.002(2).

The trier of fact may draw reasonable inferences from the evidence, and is the exclusive judge of the witnesses' credibility and the weight to give testimony. See Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.--Amarillo 1996, no pet.). Dr. Gaines testified that she based her assessment and diagnosis not only on her interview with Thompson, but also on previous evaluations and TDCJ records, which she testified are records typically relied upon in the psychiatric field. Dr. Thorne agreed with Dr. Gaines that Thompson suffered from a "behavioral abnormality," as defined by section 841.002(2). Thompson's lack of volitional control may be inferred from his past behavior, and from his history of violating mandatory supervision or probation conditions. The expert testimony, the evidence of the physical abuse in conjunction with each of the rapes Thompson committed on strangers, and the evidence of his lack of volitional control provide sufficient evidentiary support for the trial court's judgment.

We conclude a rational trier of fact could find beyond a reasonable doubt that Thompson has serious difficulty in controlling his behavior and suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Appellants' issues are overruled. We affirm the judgment and order of civil commitment. AFFIRMED.

_________________________________

DAVID GAULTNEY

Justice

Submitted on February 17, 2006

Opinion Delivered April 13, 2006

Before Gaultney, Kreger, and Horton, JJ.

1. Thompson does not challenge the sufficiency of the evidence regarding whether he is a repeat sexually violent offender, only the sufficiency of the evidence that he suffers from a behavioral abnormality that makes him more likely to engage in a predatory act of sexual violence.

2. In his deposition, Thompson admitted the 1975 conviction but stated the court of appeals reversed the conviction.