IN RE: the Commitment of Louis Anthony COLANTUONO
This case involves a civil commitment pursuant to the Sexually Violent Predator Act (“SVP”). See TEX. HEALTH & SAFETY CODE ANN. § 841.001-.151 (West 2017). After a jury trial, Appellant Louis Anthony Colantuono was found to be a sexually violent predator and was civilly committed for sex-offender treatment and supervision. On appeal, he argues the evidence is legally and factually insufficient to support the jury's finding that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. He also argues the trial court erred in excluding testimony from his expert witness about possible future conditions of parole supervision. We affirm.
In May 2016, the State filed a petition alleging that Colantuono was a sexually violent predator and requesting that he be committed for treatment and supervision pursuant to Title 11, Chapter 841 of the Texas Health and Safety Code. At trial, evidence regarding Colantuono's prior sexual convictions was admitted, proving that Colantuono had five previous convictions in California for sexual acts against children and was currently serving a thirty-year sentence in Texas for aggravated sexual assault of a child. Colantuono has been imprisoned since 1995.
At trial, Colantuono testified that he had had several relationships with boys, whom he described as “throwaways.” According to Colantuono, “they're not only throwaways, but some of them are just neglected. Their fam—their families are alcoholics, drug addicts, and everything else, you know, and that's—that's it. They're—They're lonely.” Colantuono testified he would take care of these boys and feed them. He admitted to being a member of the National Association of Man/Boy Lovers, which he joined because he had heard he could get legal help from the organization. Colantuono admitted that he has “masturbated to boys” and testified he has “a great love for boys.” Colantuono became a “boy lover” when he was twelve years old and was sodomized by another boy. Colantuono testified that his “age preference is actually 12, 13, 14, 15, 24.”
Colantuono testified that he was first convicted of a sexual crime in 1963 in California when he was about twenty-five years old. While driving an ice cream truck, he saw two boys hitchhiking. Colantuono was accused of touching the penis of one of the boys.
I was just meeting those kids, and this one fourteen-year-old boy turned around and was jealous that the thirteen-year-old wanted to go with me, and he told lies about us. I don't want to drag any children into court and say, “Here. You've got to stand here and you've got to say this and that.” You know, so I just pled guilty.
Colantuono denied any sexual contact with the boys, although he testified he “sure wish[ed] he could have made love to” one of them. Colantuono was convicted of lewd and lascivious contact against one of the boys. He was committed to a mentally disordered sex offender program and was found by the court to be a “probable sexual psychopath.”
Colantuono admitted that he was subsequently convicted of four more sexual offenses in California involving children, including one related to putting his penis in a boy's anus and another related to putting his mouth on a child's penis. Colantuono testified about sexually abusing an eleven-year old boy named Oliver who had been part of a “camping group” that Colantuono led. Colantuono estimated he sodomized Oliver seven or eight times over a period of six months. Colantuono testified he believed the relationship was consensual, but admitted that Oliver had not characterized the relationship that way:
I didn't say I threatened him [Oliver]. He said I threatened him. He said that I threatened him that I was going to shoot him with a shotgun – a shotgun. The word was, “Be careful, Oliver. I'm ready to shoot cum,” not shoot him with a shotgun.
Colantuono testified he had a relationship with another boy in the “camping group” who was fourteen years-old. The boy, Jerry, moved into Colantuono's home. Colantuono described the sexual relationship as consensual and lasting for two-and-a-half years. Colantuono also testified he took an eleven-year-old boy on a camping trip to San Francisco and sodomized him. Once again, Colantuono testified the sexual relationship had been consensual. And, Colantuono admitted to having sodomized a thirteen-year-old boy named Gilbert. Colantuono testified he would take boys on overnight trips to Las Vegas or San Francisco and would invite them to stay at his house. According to Colantuono, he would also offer them gifts.
When questioned by the State about sexual contact with a nine-year-old boy and a six-year-old boy, Colantuono denied having any contact with them, claiming they were too young for him.
In the 1980s, after serving seven and a half years in prison, Colantuono was released on parole. While on parole, he went to Mexico, which was against the terms and conditions of his parole. Colantuono testified he violated the terms of his parole because of a fifteen-year-old boy named Jason. Colantuono had met Jason's mother “at the welfare office”:
I invited his mother earlier over for a meal. They told me they were going to the river. They were going to camp at the river, and I said, “I've got sleeping bags over at my house. I'll give them to you. They're brand new, you know.” I didn't expect them to move in on me and not move once they got in my—my hotel room.
Colantuono claimed that Jason's mother told Jason to sleep in Colantuono's bed. Colantuono admitted to masturbating in the bed while Jason was sleeping. Colantuono testified that he left for Mexico because he believed he was going to be charged with another sexual offense.
Colantuono traveled to Mexico under a false identity. Colantuono testified that while he was in Mexico, he had a sexual relationship with a fourteen-year-old boy named Marvin. According to Colantuono, he was traveling from Mexico to Texas every week. On one of his trips to Texas, when he was fifty-four years old, he stayed at a friend's home where an eleven-year-old girl named Jessica was staying over for a slumber party. Colantuono claimed he “fell asleep on the sofa at the top of the bed” and Jessica “was in the middle of bed.” Colantuono testified he woke up to being “orally copulated by this child.” Colantuono claimed eleven-year-old Jessica tore “her panties off with one hand, grab[bed] [him] by the penis and pull[ed him] down over her.” Colantuono claimed he “became her victim.” Colantuono testified, “She groomed me and she got me to do whatever she was going to do with me.” Colantuono claimed Jessica's parents were “using her as fair trade to supply her—their drugs.” Colantuono was convicted of aggravated sexual assault and was sentenced to thirty years of imprisonment. At trial, Colantuono testified he had been imprisoned for twenty-two years “for something that happened to [him], not something [he] went out to create.”
Colantuono testified that in prison, he was in sex offender treatment. He admitted that when he lived in California, he had been sent to the Atascadero State Hospital for evaluation and had been there for over a year. However, he was found to be unamenable to treatment and was sent to prison.
When asked by his defense counsel why he would never commit another sexual offense again, Colantuono testified,
Because of my daughter, my—my grandkids. My first marriage I had a daughter. She was two years old when I first saw her. When I last saw her, she wrote me a letter when I was in prison about 12, 13, maybe 15 years ago. She told me about her life with a stepfather who raped her from the age of eight on and impregnated her at 13 and then forced her into marrying him.
When asked why what happened to his daughter would stop him from engaging in the same sort of activity he had in the past, Colantuono responded, “Because I've got a broken heart.” When asked if he is sexually attracted to children, Colantuono replied, “Not now.”
Dr. Jason D. Dunham, a forensic psychologist, evaluated Colantuono, reviewed Colantuono's criminal history, and made an assessment of whether Colantuono suffered from a behavioral abnormality. Dr. Dunham defined behavioral abnormality as “a congenital or acquired condition that affects a person's emotional or volitional capacity that predisposes the person to commit a predatory act of sexual violence to the point that they're a menace to the health and safety of others.” Dr. Dunham testified that in his expert opinion, Colantuono suffers from a behavior abnormality. According to Dr. Dunham, he counted fourteen or fifteen “identifiable victims that [Colantuono has] either acknowledged or admitted to.” In talking to Colantuono, Dr. Dunham testified Colantuono has a pattern where “he seems to believe that the boys initiated the –the sexual activity.” Colantuono depicts himself as passive and “the boys [as] the initiators.” Dr. Dunham had concerns that Colantuono was married during some of these offenses: “[S]o having access to a sexual partner but still committing a sexual offense against somebody else, it's considered a risk factor.” Dr. Dunham testified about how Colantuono viewed his crimes as consensual acts:
[H]e talks about—with all of his offenses, he talks—he indicates that either the boys were initiating it or that they were—they were willing participants, and what's interesting is—we'll discuss later the—probably with the incidents that he does not admit to are the ones that were described as more forceful and not consensual encounters. So he's open with the incidents that he feels were in his mind consensual or that were not forced, but if there's an allegation of nonconsent, he seems to not admit to those.
Dr. Dunham discussed Colantuono's relationships with his victims and Colantuono's pattern of “playing the victim” “to get the kids closer to him.” Colantuono would also offer the children gifts and money. Dr. Dunham discussed Colantuono's leadership role in a campfire group for children and how Colantuono viewed his behavior:
[Colantuono] described it as—as a positive experience for the boys, that he—he took them on outings, that he took them camping. He took them to the lake, that they would come over, that they all loved each other, that they would have sex with each other. They would have sex with him. He also talked about taking them on trips with him in his truck out of town including San Francisco and Las Vegas, that it was part of his work, and he would take some of the boys along with him. He described that it was going on for some time, that he—he admitted that he gained the trust of the boys' parents, and that they allowed them to go with him and to—and that they would spend the night sometimes at his house and one was even living with him, but he described it as a positive experience for them, and that he was—he was loving them.
Dr. Dunham talked about Colantuono's behavior when he was released on parole at the age of forty-nine. One of his conditions was not being around children. Colantuono fled the country while on parole, because he “felt like he was about to be accused or he was already accused of molesting another boy.” Dr. Dunham noted that Colantuono admitted to having slept in the same bed as the boy, Jason, even though the conditions of Colantuono's parole prohibited him from being around children. According to Dr. Dunham, Colantuono was angry with Jason and depicted himself as a victim. Dr. Dunham then discussed Colantuono's offense against eleven-year-old Jessica:
[Colantuono] was coming in from Mexico to go to San Antonio for—for some reason. He stopped by this family's house because he knew the father. The—he ended up spending the night there while the—they were having a sleepover for the birthday party. So he ended up molesting a girl that was not—had nothing to do with—it wasn't part of the—it wasn't this friend's daughter, but he was—she was a stranger. He did not know her. He never met this girl before. The father said—the father of her friend said that he heard her screaming or crying and he went into the room and then that's when she told him that [Colantuono] basically had raped her, that it was—he had sexual intercourse with her ․ [Colantuono] said it was the girl's fault that—he provided a long story of why he was at the house, but essentially what he said was that he mocked the girl, and he used her voice in a mocking way and saying that that night she was saying—and he, “Oh, oh, I'm afraid. I'm afraid of the ghosts and monsters,” but he was using—he was mocking her, and so he felt like he was going to do the fatherly thing, which was to stay with her, offer to ride—give her a ride home because she was scared. He ended up, you know, sleeping beside her to comfort her. He said he woke up with her sucking on his penis, that she woke him up that way ․ and she wanted $10 for having sex with him ․ So in his mind he was the victim there. He's very—he's angry with her to this day. He's still—he says that he's angry, angry with her and believes that she seduced him, and that she's the reason that he's in prison right now.
According to Dr. Dunham, Colantuono “has a lot of distortions.” He “tells this same story to everybody.” “[H]e may believe that this occurred. He may believe that it occurred the way that he has repeated it over and over and over to so many people over time.” “[H]e may have convinced himself that he was actually ․ victimized instead of the actual victim.”
Dr. Dunham testified that in making a sex-offender risk assessment, he considers factors that help him predict whether a person might reoffend in the future. Dr. Dunham testified he considers the details of the sexual offenses, including the total number of victims. According to Dr. Dunham, when there are multiple victims involved, the risk of reoffending increases exponentially. In this case, Colantuono admitted to having sexual contact with at least fifteen victims, which is a “significant risk factor.” Dr. Dunham testified that the types of offenses Colantuono committed are also a risk factor. Although he did not want to minimize fondling, Dr. Dunham testified that in this case, there was oral sex and penetration. “[I]t's extreme sexual abuse of the children.” According to Dr. Dunham, he also considers the “pattern of behavior.” In this case, there was a pattern. “[I]t's not just one year. It's not just one victim.” “This is over a thirty-year period over a number ofa boys over a number of different times with each of the boys.” It “has been constant when [Colantuono has] had the opportunity for about thirty years.”
Dr. Dunham testified another factor is “easy detection.” Colantuono was not committing offenses “in private where other people might not find out.” He was “doing it in front of other children.” “He's doing it as the camp leader.” “He's doing it in gas station bathrooms.” According to Dr. Dunham, this behavior shows that Colantuono was “not able to control himself to even ․ get himself to a point where he wouldn't be detected.”
An additional factor is “the level of planning and grooming involved.” Dr. Dunham testified this was probably “the biggest grooming case [he had] ever evaluated.” “Grooming has to do with setting up the victims to make it easier to molest them.” According to Dr. Dunham, “the grooming for Mr. Colantuono is—is extreme.” Dr. Dunham testified that Colantuono worked with an “ice cream cart driven by a pony.” He “ran a hot dog stand.” He “worked at carnivals.” He was “leading the Campfire Adventures group.”
Dr. Dunham also considered the timing of the offenses and found it significant that Colantuono offended both times he was married. Colantuono also offended after he had been incarcerated and released on supervision. And, he offended after being in sex offender treatment. Dr. Dunham testified that “nothing has really deterred [Colantuono] from reoffending to this point.”
Dr. Dunham also considered “victim characteristics.” According to Dr. Dunham, Colantuono has assaulted both girls and boys as victims. He has had victims who were strangers and victims he knew. He has victims who were unrelated to him. Dr. Dunham considered this a risk factor indicating Colantuono would reoffend.
Dr. Dunham testified that in his expert opinion, Colantuono has “an antisocial personality disorder,” which is also a risk factor that he would reoffend. Finally, Dr. Dunham considered “dynamic risk factors.” One dynamic risk factor is “his victim stance.” According to Dr. Dunham, Colantuono “seems to paint himself as the victim continuously, and through most of his descriptions of these offenses, he's the victim instead of the victim being the victim.” Colantuono also has a “poor understanding” of “why he offended” and has “a cognitive distortion about everything that's occurred.” Dr. Dunham testified that Colantuono does not really understand why it was wrong for him to have sex with his victims. Dr. Dunham testified that Colantuono lacks “some remorse” and “some empathy,” which are also risk factors.
Dr. Dunham testified about “protective factors” that would help prevent Colantuono from reoffending, like Colantuono's age of seventy-seven and his being enrolled in sex offender treatment in prison. According to Dr. Dunham, Colantuono's medical problems (poor eyesight and diabetes) were also considered but ultimately were not considered “protective.” Dr. Dunham did not believe Colantuono's medical condition would prevent him from abusing children in the future, and instead, believed he would be seen “as more approachable for children.” According to Dr. Dunham, the protective factors did not change his conclusion that Colantuono has a behavior abnormality. Dr. Dunham diagnosed Colantuono with a “pedophilic disorder and antisocial personality disorder.” Dr. Dunham testified he believed Colantuono to be “a very high risk” to reoffend.
Colantuono called his own expert witness, Dr. John Matthew Fabian, to testify. Dr. Fabian, a forensic psychologist and a neuropsychologist, testified that Colantuono was a “true recidivist.” Dr. Fabian stated,
[Colantuono] has a behavioral abnormality related to congenital or an acquired condition affecting his emotional or volitional capacity that has predisposed him to commit a sexually violent offense or offenses in the past, and that would be pedophilic disorder, and that would be nonexclusive type, and that would be sexually attracted to both males and females, but I am not opining that he is likely to commit another sexually violent offense.
According to Dr. Fabian, it was Colantuono's age that led him to the conclusion he was not likely to reoffend. Dr. Fabian considered the same factors as Dr. Dunham and like Dr. Dunham, found most of them were risk factors for Colantuono reoffending. However, Dr. Fabian found it significant that Colantuono's offenses occurred over twenty-two years ago and that Colantuono was now approaching eighty years of age. Dr. Fabian also found Colantuono's health problems to be significant, noting that Colantuono has “issues getting around, mobility” and “heart problems.” Dr. Fabian then corrected his previous testimony:
So “behavioral abnormality” under the statute indicates—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.” It is my understanding of the law that “menace” is not defined. Okay? My opinion would be he has pedophilic disorder, nonexclusive type, sexually attracted to both males and females. Whether he's a menace, I would have to say he's caused problems in the community. So, I would not have a problem saying he's been a menace. The other part of the statute says sexually violent predator requires, is a repeat, sexually violent offender and suffers from a behavioral abnormality that makes a person likely to engage in a predatory act of sexual violence. I cannot say likely within a reasonable degree of psychological certainty, and so ultimately I would say no, he does not have a behavior abnormality despite having a history of sex offenses and pedophilic disorder.
On cross-examination, Dr. Fabian admitted that Colantuono has had diabetes since his thirties and eyesight issues since his childhood and that, despite these medical issues, was able to commit sexual offenses. Dr. Fabian also conceded that Colantuono has a risk of reoffending but characterized the risk as “low-to-moderate.” Dr. Fabian admitted that on a risk-assessment test, the “Static-99R,” he scored Colantuono as a “four,” which “the authors say [is] a high risk.” On that assessment, even factoring in Colantuono's age, he is still considered a “moderate-to-high risk.” Nevertheless, Dr. Fabian did not consider Colantuono's risk to be high, stating that after the age of sixty, “extrafamilial offenders with pedophilia” “rarely reoffend.” Dr. Fabian testified offenses diminish over the age of fifty and “at sixty-plus is when you see basically no reoffending.”
After hearing all the evidence, the jury found that Colantuono suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Colantuono appealed.
LEGAL AND FACTUAL SUFFICIENCY
Colantuono argues the evidence is legally and factually insufficient to support the finding that he is likely to engage in a predatory act of sexual violence. Section 841.003 of the Texas Health and Safety Code states that a “person is a sexually violent predator for the purposes of this chapter if the person: (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.” TEX. HEALTH & SAFETY CODE ANN. § 841.003(a) (West 2017). 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).
Because the State has the burden of proving beyond a reasonable doubt that a person is a sexually violent predator, we apply the legal sufficiency standard used in criminal cases. In re Commitment of Mares, 521 S.W.3d 64, 67, 71-72 (Tex. App.—San Antonio 2017, pet. denied). Under that standard, we view the evidence in the light most favorable to the jury's finding to determine whether a rational factfinder could have found all the elements required for commitment beyond a reasonable doubt. Id. at 72. With regard to a factual sufficiency review of evidence in a civil case in which the burden of proof is beyond a reasonable doubt, we weigh all 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.” Id. (citation omitted). In both a legal and factual sufficiency review, the “jury remains the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Id.
Colantuono argues that the State had to prove that Colantuono was “likely to engage in a predatory act of sexual violence.” See TEX. HEALTH & SAFETY CODE § 841.003(a)(2) (West 2017) (emphasis added). Section 841.002(5) defines “predatory act” as “an act directed toward individuals, including family members, for the primary purpose of victimization.” Id. § 841.002(5). According to Colantuono, the State presented no evidence showing he “acted or even will act for the primary purpose of victimization.” Colantuono points out that he testified he believed “he was in a loving, consensual relationship with his victims.” Thus, he argues his intent was not predatory.
The State responds that there is no statutory or case law requirement that the State prove Colantuono was likely to engage in a future predatory act of sexual violence. That is, it argues the “primary purpose of victimization” is not a separate element the State must prove. Indeed, in In re Commitment of Bohannan, 388 S.W.3d 296, 302 (Tex. 2012), the Texas Supreme Court expressly rejected “the court of appeals' bisection of the statutory definition of behavioral abnormality.” It abrogated the holding of the court of appeals that “the statutory of definition of ‘behavioral abnormality’ has two separate components: an acquired or congenital condition and a predisposition to commit a sexually violent offense.” Id. The court explained,
Boiling it down, a behavioral abnormality is “a ․ condition that ․ predisposes” sexually violent conduct. The modifier, “predisposes,” qualifies and describes “condition.” The required condition is the predisposition. The condition has no other qualities, other than it can be congenital or acquired. The condition and the predisposition are one and the same. The definition might be more clearly written:
“Behavioral abnormality” means a congenital or acquired predisposition, due to one's emotional or volitional capacity, to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.
The condition and predisposition cannot be separate things, as the court of appeals tried to make them.
Id. at 302-03 (emphasis in original). The court explained that the “concern regarding the predisposition is, of course, the heightened risk of offense.” Id. at 303. “That concern is reiterated in the statutory definition of a SVP as ‘a repeat sexually violent offender [who] suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Id. (emphasis in original). Although the court of appeals “took this reiteration as further indication that the predisposition (or risk) and the condition required for a behavioral abnormality are separate things,” the supreme court disagreed. Id. In considering the language of the statute, the supreme court concluded “that whether a person ‘suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence’ is a single, unified issue.” Id. (emphasis added).
Relying on the supreme court's holding in Bohannan, the Beaumont Court of Appeals reiterated its previous holding that “ ‘the primary purpose of victimization’ is not a specified element in section 841.003.” In re Commitment of Ramirez, No. 09-13-00176-CV, 2013 WL 5658597, at *2 (Tex. App.—Beaumont 2013, no pet.); see also In re Commitment of Simmons, No. 09-09-00478-CV, 2011 WL 2420832, at *7 (Tex. App.—Beaumont 2011, no pet.). Explaining that the statute's definition of “behavioral abnormality” is not to be bisected, the Beaumont Court of Appeals held that “in accordance with [its] case law and that of the Texas Supreme Court, implicit in a finding that a person suffers from a behavioral abnormality is a conclusion that the person is likely to engage in a predatory act of sexual violence for the primary purpose of victimization.” In re Commitment of Ramirez, 2013 WL 5658597, at *2. We agree with the Beaumont Court of Appeals.
At trial, the jury heard expert testimony that Colantuono has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. The jury heard expert testimony about risk factors increasing the likelihood of Colantuono committing such acts. The jury heard testimony about Colantuono's criminal history, the details of his offenses, and his victims. Viewing all the evidence in the light most favorable to the jury's finding, we hold a rational jury could have concluded beyond a reasonable doubt that Colantuono has a behavorial abnormality that makes him likely to engage in a predatory act of sexual violence for the primary purpose of victimization. See id. at *3. Further, in weighing all the evidence, we cannot conclude that the jury's verdict “nevertheless reflects a risk of injustice that would compel ordering a new trial.” In re Commitment of Mares, 521 S.W.3d at 72. We therefore hold the evidence is legally and factually sufficient to support the jury's finding that Colantuono suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
EXCLUSION OF EVIDENCE
Colantuono argues the trial court erred in sustaining the State's relevancy objection to Dr. Fabian testifying about factors of parole supervision. We review a trial court's evidentiary rulings for abuse of discretion. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “A trial court abuses its discretion when it acts without regard for guiding rules or principles.” Id. Even if a trial court abused its discretion in making an evidentiary ruling, reversal is only appropriate if the error probably resulted in an improper judgment. Id.; TEX. R. APP. P. 44.1.
Relevant evidence is any evidence that tends to make a fact of consequence more or less probable than it would be without the evidence. TEX. R. EVID. 401. After the trial court sustained the State's relevancy objection, Colantuono made an offer of proof by questioning Dr. Fabian outside the presence of the jury. During this offer of proof, Dr. Fabian testified to the likely parole restrictions that would be placed on Colantuono if he was released on parole. Dr. Fabian was asked, “Are these restrictions being placed on Mr. Conlantuono should he make parole important to you in determining whether or not he's likely to engage in a predatory act of sexual violence?” Dr. Fabian replied, “Yes.” Thus, Colantuono argues Fabian's testimony was relevant to “how parole supervision would make Colantuono not ‘likely’ to reoffend.”
In In re Commitment of Smith, No. 09-12-00189-CV, 2013 WL 476771, at *2 (Tex. App.—Beaumont 2013, pet. denied), the Beaumont Court of Appeals addressed the same issue. Smith, the appellant, complained the trial court had refused to allow his experts to testify about the terms of his “super intensive supervision parole plan and the effect of that level of supervision upon [his] likelihood of engaging in a predatory act of sexual violence.” Id. The court explained that “[p]ursuant to the SVP statute, the issue to be determined by the jury was whether Smith is a repeat sexually violent offender and suffers from a behavioral abnormality that makes him likely to commit a predatory act of sexual violence.” Id. at *7. “The relevant inquiry is whether Smith's behavioral abnormality makes him likely to commit a predatory act of sexual violence.” Id. “[T]he level of supervision to which Smith would be subject if placed on super intensive supervision parole is not relevant to the issue before the jury.” Id. Such supervision would be “externally imposed” on him; “the fact he would be under supervision [would] not reflect a decision that he had made about his future.” In re Commitment of Asbell, 2014 WL 4755482, at *2 (Tex. App.—Beaumont 2014, no pet.) (discussing its holding in Smith). Thus, “the evidence regarding how Smith was to be supervised after being released was not relevant to the issue of whether Smith was suffering as of the date of the trial from a behavioral abnormality that made him a menace to society.” Id. We agree with this analysis by the Beaumont Court of Appeals. Any future restrictions placed on Colantuono during any future parole supervision is not relevant to the issue of whether he suffers from a behavioral abnormality. They would be “externally imposed controls” that would not reflect any decision made by Colantuono. We therefore hold the trial court did not err in sustaining the State's relevancy objection.
Colantuono argues that even if Dr. Fabian's testimony about possible future parole restrictions is not relevant, the State opened the door when it elicited testimony from its expert, Dr. Dunham, that Colantuono had failed to comply with parole supervision in the past and had reoffended. However, both experts testified that a risk factor to consider in making their determination of whether Colantuono has a behavioral abnormality is whether he committed a sex offense while under supervision. Dr. Dunham testified Colantuono's committing another sex offense against a child while on supervision in California was relevant to his behavioral abnormality because he showed he could not “resist the urges he had.” Thus, the evidence was relevant to choices made by Colantuono about his own behavior. We conclude the State did not open the door to Dr. Fabian's proffered testimony.
Moreover, even if the trial court erred in sustaining the State's relevancy objection, any error is harmless. See TEX. R. APP. P. 44.1(a)(1) (explaining that no judgment may be reversed on appeal on the ground the trial court made an error of law unless the court of appeals concludes the error complained of probably caused the rendition of an improper judgment). The jury had already heard evidence about “strict conditions” of parole, including reporting to a parole officer, having an ankle monitor, submitting to random drug testing, maintaining employment, having a curfew, not being around children, and registering as a sex offender. In addition to having already heard evidence about parole conditions, the jury heard Dr. Fabian's expert opinion that Colantuono was not likely to commit another sexually violent offense. Dr. Fabian told the jury he based this opinion on Colantuono's advanced age and medical problems. We cannot conclude any error probably caused the rendition of an improper judgment.
We hold the evidence is legally and factually sufficient to support the jury's finding that Colantuono is a sexually violent predator. We further hold the trial court did not abuse its discretion in sustaining the State's relevancy objection to testimony by Dr. Fabian about possible future parole conditions. We therefore affirm the judgment of the trial court.
Karen Angelini, Justice