IN RE: Commitment of Gilberto Gomez

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Court of Appeals of Texas, Beaumont.

IN RE: Commitment of Gilberto Gomez

NO. 09–14–00392–CV

Decided: February 25, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.

MEMORANDUM OPINION

Gilberto Gomez challenges his commitment as a sexually violent predator.  See Tex. Health & Safety Code Ann. §§ 841.001–.151 (West 2010 & Supp.2015).  In six issues presented for his appeal, Gomez challenges the legal and factual sufficiency of the evidence supporting the jury's verdict, contends the trial court erred in allowing Gomez to be civilly committed under an unconstitutional standard, and argues the trial court erred in not allowing Gomez's expert to testify as to how Gomez did not engage in his past offenses for the primary purpose of victimization.  We find that Gomez's issues are without merit, and we affirm the trial court's judgment and order of civil commitment.

Sufficiency of the Evidence

We address issues one through four together because they address the legal and factual sufficiency of the evidence supporting the jury's verdict, which found beyond a reasonable doubt that Gomez is a sexually violent predator.  Gomez did not challenge the sufficiency of the evidence during the trial, but he presented legal and factual sufficiency arguments in a post-judgment motion for new trial.  In his brief on appeal, Gomez's contends:

1. The evidence is legally insufficient to support a finding beyond a reasonable doubt that Appellant is likely to engage in a predatory act of sexual violence.

2. The evidence is factually insufficient to support a finding beyond a reasonable doubt that Appellant is likely to engage in a predatory act of sexual violence.

3. The evidence is legally insufficient to support a finding beyond a reasonable doubt that Appellant has a serious difficulty controlling his behavior.

4. The evidence is factually insufficient to support a finding beyond a reasonable doubt that Appellant has a serious difficulty controlling his behavior.”

In the trial of a civil commitment filed under Chapter 841 of the Texas Health and Safety Code, the State must prove, beyond a reasonable doubt, that the person to be civilly committed is a sexually violent predator.  Id. § 841.062(a).  When we consider a challenge to the legal sufficiency of the evidence supporting the jury's finding that a person is a sexually violent predator, 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.  In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex.App.—Beaumont 2002, pet. denied).  As the factfinder, the jury has the responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to 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).

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 & Safety Code Ann. § 841.003(a).1  A “ ‘[b]ehavioral abnormality’ means 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).  “A condition which affects either emotional capacity or volitional capacity to the extent a person is predisposed to threaten the health and safety of others with acts of sexual violence is an abnormality which causes serious difficulty in behavior control.”  In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex.App.—Beaumont 2003, pet. denied).  A “ ‘[p]redatory act’ means an act directed toward individuals, including family members, for the primary purpose of victimization.”  Tex. Health & Safety Code Ann. § 841.002(5).

Gomez's criminal history includes a 1979 conviction for sexual abuse of a child.  In the civil commitment trial, Gomez testified that he had known the eight-year-old boy for only a few days when he “talked” the child into submitting to sexual contact.  Gomez admitted that he put the child's penis in his mouth, and he explained that he committed this crime because he had “urges” to sexually assault a child.  Gomez served one-half of a five-year sentence for that crime.  Gomez admitted that in 1987 he re-offended by committing an act of oral sex on a ten-year-old boy on more than one occasion.  Gomez admitted that at the time he was sexually attracted to the child and acted on his urges.  Gomez also pleaded guilty to committing an act of indecency with another child by contact in 1990.  That boy was eleven years old.  When he was forty-eight years old, Gomez committed an aggravated sexual assault on a nine-year-old boy on more than one occasion.  Again, Gomez testified that he was acting on his sexual urges.  In 1990, he received sentences of twenty-five, twenty-five, and twenty years in prison for these offenses.  When he started sex offender treatment in October 2013, Gomez told his interviewer that the boys initiated the sexual contact.  He repeated that assertion in March 2014, three months before the trial and approximately five months into his sex offender treatment.  The sex offender treatment program that Gomez began at seventy-one years of age was the first time he dealt with issues regarding his sexual attraction to young boys.  His participation in the sex offender treatment program was extended beyond the normal nine months.  Gomez testified he was still in the process of learning about his triggers and his offense cycle.  He stated that his triggers are young boys and being alone.

The State's expert witness, Dr. David Self, a psychiatrist who evaluated Gomez, testified based upon his education, training, experience, and the methodology he employed in the case that in his expert opinion Gomez suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.  In forming his opinion, Dr. Self considered an evaluation performed by a psychologist, Dr. Paul Hamilton.  Dr. Hamilton scored Gomez on the Static–99R, an actuarial instrument used in sex offender evaluations to measure degree of risk based upon statistical sample.  Gomez's score of one on the Static–99R indicated a statistically low likelihood of reoffending, based largely upon Gomez's age.  According to Dr. Self, that Gomez was 72 years old was a positive factor because statistically reoffending decreases beginning at age 60.  However, Dr. Self noted that there are very few offenders over the age of 70 recorded in the studies because so many of the subjects die or are grievously ill.  Gomez offended in his 40's, admitted to still having a sexual attraction for boys, and had no physical limitations that would prevent him from sexually offending against a child.  Dr. Self added that anecdotally he had been involved in quite a few cases where 70 and 80–year–olds offended against children in criminal cases.  Gomez's risk is based on his chronic active pedophilia and his criminal sexual history of offending against prepubescent males.  According to Dr. Self, a diagnosis of pedophilia does not itself imply that a person has difficulty controlling his behavior.  But, when a person acts on those urges, it implies some difficulty controlling behavior, as does the number of times the person acts on those urges.  Gomez has a demonstrated history of acting on his pedophilic urges.  He makes himself comfortable with that acting through denial and projection of responsibility onto his victims, and his extra-familial male preference is a persisting pedophilic disorder.  Dr. Self suggested that because Gomez does not make friends, he is going to be lonely out in the free world and consequently, will be very vulnerable to acting on these urges with little children.

Gomez's expert witness, Dr. John Tennison, a psychiatrist who evaluated Gomez for a behavioral abnormality, testified that in his opinion, Gomez is at an extremely low risk for reoffending sexually.  Dr. Tennison stated that denying responsibility and not empathizing with a victim have not been shown to impact a person's risk of re-offending.  Dr. Tennison agreed with Dr. Self that Gomez is a pedophile, but Dr. Tennison did not get the impression that Gomez currently has a sexual interest in children.  He agreed with Dr. Self that having male victims increases Gomez's risk for reoffending, as does reoffending after serving time in prison for a previous sexual offense.  Gomez's advanced age and his low actuarial score contributed to Dr. Tennison's opinion.  Furthermore, Gomez's behavior does not itself demonstrate a lack of control to Dr. Tennison.  The offenses are significant because they satisfy the legal definition of sexually violent offense, but in Dr. Tennison's opinion they do not show that Gomez has serious difficulty controlling his behavior.  According to Dr. Tennison, Gomez's sex offender treatment records showed some positive factors and some negative factors.  Dr. Tennison stated that lack of progress in sex offender treatment is a very low-potency risk factor.  Based upon his training, education, experience, and his review of Gomez's case, in Dr. Tennison's expert opinion, Gomez does not meet the statutory definition of having a behavioral abnormality because he is not likely to reoffend.  According to Dr. Tennison, Gomez's low score on the Static–99R disqualifies Gomez as having a behavior abnormality.  Dr. Tennison saw no evidence that Gomez has serious difficulty controlling his behavior, and Gomez's sexually violent offenses appear to have been “willful acts that he consciously chose to engage in.”  According to Dr. Tennison, Gomez's expected rate of recidivism is 1.8 to 2 percent based upon Boccaccini's and Murrie's study of the Texas population category of the Static–99R.  Dr. Tennison admitted that the oldest person in Dr. Karl Hanson's research group for the Static–99R was 72, and that man was reconvicted for a new sexual offense the following year, but that person represented an outlier.  However, Dr. Tennison did admit that it would contradict his clinical impression if Gomez admitted in court that he still has sexual urges toward prepubescent children.

Gomez argues the evidence is legally and factually insufficient because none of the evidence at trial showed that he has serious difficulty controlling his behavior.  He argues that Dr. Self considered redundant risk factors that were included within the Static–99R.  Gomez suggests that Dr. Tennison discredited Dr. Self's opinion testimony by pointing out that the risk factors relied upon by Dr. Self in forming his opinion, which are not included in the actuarial instrument, have been shown not to be true indicators of whether one is likely to reoffend.  In particular, Gomez argues Dr. Self placed inappropriate emphasis on his social relationship history when it had already been factored and weighed in the Static–99R.

Regarding whether the jury could rationally find that Gomez is a sexually violent predator because he has a behavioral abnormality that makes him likely to commit a predatory act of sexual violence, Gomez argues that the jury blatantly ignored the weight of the evidence supplied by Dr. Tennison, including modern research on risk factors and the fact that it has been twenty-four years since Gomez has been convicted of engaging in inappropriate sexual behavior.  Gomez contends the only objective evidence is the Static–99R, which indicates Gomez is at low risk to reoffend, and his past criminal conduct, which Dr. Tennison testified appears to have been willful acts.

The jury heard conflicting opinions from the expert witnesses.  Although they drew different conclusions from the same evidence, each expert explained why particular information in those records supported his reasoning.  The State's expert explained why Gomez's age was a protective factor but was not determinative of his risk, while Gomez's expert attributed almost conclusive weight to that factor.  Dr. Tennison cited recent research that indicated aged offenders are at low risk to reoffend, and from the records of the past offenses and the lack of sexual misconduct while in prison, he reasoned that Gomez had engaged in his sexual offenses willfully and that he does not presently have serious difficulty controlling his behavior.  But, the jury heard Gomez testify that he assaulted the boys because he had sexual urges to commit sexual assault, and while Gomez was in prison he did not have access to boys.  In weighing this evidence, a rational jury could have chosen to reject Dr. Tennison's opinion and to credit Dr. Self's opinion.

The jury could reasonably weigh the experts' opinions and credit the opinions of the State's expert over the contrary opinions expressed by Gomez's expert witness.  See Mullens, 92 S.W.3d at 887.  In light of the opinions expressed by Dr. Self, we conclude that rational jurors could find, beyond a reasonable doubt, that Gomez suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.  See id.  Because the evidence is legally sufficient to support the jury's verdict, we overrule issues one and three.

Gomez does not point to any additional evidence to support his arguments that the evidence is factually insufficient.  He argues the risk of an injustice is that he may not be part of the small subclass of persons whom the legislature intended to be eligible for civil commitment.  Dr. Self's opinion testimony that Gomez has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence represents “a reasoned judgment based upon established research and techniques for his profession and not the mere ipse dixit of a credentialed witness.”  Day, 342 S.W.3d at 204.  The jury, acting in its exclusive role as the sole judge of the credibility of the witnesses and the weight to be given their testimony, resolved any conflicts and contradictions in the evidence and accepted the opinions of Dr. Self over the contrary opinions of Dr. Tennison.  See generally In re Commitment of Kalati, 370 S.W.3d 435, 438–39 (Tex.App.—Beaumont 2012, pet. denied).  Weighing all of the evidence, we conclude the verdict does not reflect a risk of injustice that would compel ordering a new trial.  Day, 342 S.W.3d at 213.  We overrule issues two and four.

Expert's Definition of “Likely”

In issue five, Gomez points to a passage from Dr. Self's testimony to argue that he is entitled to a new trial “that applies the correct standard of ‘likely.’ ”  In direct examination, Dr. Self testified that the word “likely” is not defined in the civil commitment statute and does not have a number or percentage assigned to it.  When asked, “What does ‘likely’ mean?”, Dr. Self replied, “Well, it's been—in my understanding in some appellate law, it's been defined as ‘more than a mere possibility.’ ”  In his appellate brief, Gomez argues this definition has been rejected in a case 2 decided under a similar California statute and that Dr. Self's definition of “likely” differs from definitions expressed in a previous opinion of this Court.3  Gomez did not object to this testimony at the time it was offered.  [3RR14:15–18]We hold the issue was not preserved for appellate review.  See Tex.R.App. P. 33.1;  Tex.R. Evid. 103.  We overrule issue five.

Exclusion of Evidence

In issue six, Gomez contends the trial court erred in excluding Dr. Tennison's expert opinion that Gomez did not engage in his past offenses for the primary purpose of victimization.  On direct examination, Dr. Tennison was asked:  “And is there a difference between a predatory act and an act that is intended to satisfy someone's sexual gratification in your clinical opinion?”  The State objected, arguing that victimization is inherent in the act.  Outside the hearing of the jury, Gomez made an offer of proof in which Dr. Tennison stated, “Yes, there can be a difference.”  Gomez's counsel continued to question Dr. Tennison as follows:

Q: [P]lease explain to the jury how a person's motivation is important to your analysis of whether that person is likely to engage in a predatory act of sexual violence.

A: The reason their motivation is important is because that suggests their underlying intentions.  If they have an intention to engage in that for the purpose or primary purpose of victimization, then they satisfy the definition of “predatory act.”  If that's not the underlying motive or intention, then they don't satisfy the definition of “predatory act.”

Q: And the last question:  How do you distinguish a primary purpose from another purpose?

A: In general, a primary purpose is one that I would ․ say is at least co-equal if not greater than any other purpose they might have.

The State argued the testimony was confusing and inadmissible under Bernard.4  The trial court added that the jury already heard similar testimony.  In Gomez's offer of proof, Dr. Tennison did not apply his interpretation of victimization to Gomez's prior sexual offenses.

“The trial court may exclude evidence because its probative value is outweighed by the danger of issue-confusion or the danger of misleading the jury.”  In re Commitment of Bernard, No. 09–10–00462–CV, 2012 WL 2150328, at *2 (Tex.App.—Beaumont June 14, 2012, pet. denied) (mem.op.).  Gomez argues in his appeal brief that his case differs from Bernard in part because the person being civilly committed in that case had committed sexual assault with a deadly weapon, an offense that by its nature was committed for the purpose of victimization.  If Gomez is implying that fellating nine-year-old boys is not by its nature victimizing, we reject that argument.  Furthermore, Dr. Tennison agreed that the children Gomez had sexual contact with in the past had been victimized.  Dr. Tennison's direct examination before the jury included the following:

Q. And, Doctor, how does that term [“predatory act”] play a role in your evaluation of Mr. Gomez to determine whether or not he has a behavior abnormality?

A. Well, it's one of the many things I consider in that complex definition of behavioral abnormality.  I want to consider what he was—clearly the children became victims;  the children that he had sexual relations with became victims.  But that's not exactly the same question or the same thing as saying that he was doing what he did for the primary purpose—in his own mind, the primary purpose of victimizing them.

So that is one consideration that I make:  Is someone doing something for a primary purpose of victimization?  That—among other considerations, that's one thing we look at because the definition goes the length to define what “predatory act” means.

Dr. Tennison evidently wished to draw a distinction between the objective victimization of the children involved and Gomez's subjective intent to gratify himself sexually with prepubescent boys by putting their sexual organs in his mouth.  Because of the circumstances surrounding Gomez's prior offenses, his conduct could not have occurred without victimizing, regardless of his rationalization for his behavior.  See generally Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (West Supp.2015).  The trial court could reasonably have concluded that Dr. Tennison's testimony regarding victimization confused the issues and would not assist the jury in its deliberations.  In re Commitment of Nicholson, No. 09–13–00498–CV, 2014 WL 4460417, at *3 (Tex.App.—Beaumont Sept. 11, 2014, no pet.) (mem.op.).  We overrule issue six and affirm the trial court's judgment and order of civil commitment.

AFFIRMED.

FOOTNOTES

1.   Gomez does not challenge his status as a repeat sexually violent offender in his appellate brief.

2.   People v. Superior Court (Ghilotti), 44 P.3d 949 (2002).

3.   In re Commitment of Weatherread, No. 09–11–00269–CV, 2012 WL 5960196, at *3 (Tex.App.—Beaumont Nov. 29, 2012, pet. denied) (mem.op.).

4.   See In re Commitment of Bernard, No. 09–10–00462–CV, 2012 WL 2150328, at *2 (Tex.App.—Beaumont June 14, 2012, pet. denied) (mem.op.)  (“Whether someone is a victim is not determined from the subjective point of view of the victimizer.”).

CHARLES KREGER, Justice