In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-314 CV
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IN RE COMMITMENT OF JERRY HANNAH
Montgomery County, Texas
Trial Cause No. 05-08-07799-CV
The trial court ordered the civil commitment of Jerry Hannah after the jury found him to be a sexually violent predator ("SVP"). See Tex. Health & Safety Code Ann. §§ 841.001-841.150 (Vernon 2003 & Supp. 2006). The SVP statute defines "sexually violent predator" as a person who "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003 (Vernon 2003). 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) (Vernon Supp. 2006).
On appeal, Hannah challenges the factual sufficiency of the evidence that he suffers from a behavioral abnormality that makes him likely to engage in a future predatory act of sexual violence. Hannah also argues that the record shows he committed only one prior predatory act of sexual violence. Finally, Hannah challenges the reliability of the testimony of Dr. Sheri Gaines, the State's expert witness. We affirm the trial court's judgment and order of civil commitment.
Under the SVP statute, the State must prove beyond a reasonable doubt that a person is a sexually violent predator. See id. § 841.062 (Vernon 2003). Because the statute employs a beyond-a-reasonable-doubt-standard, we apply the standard of review used in criminal cases for factual sufficiency of the evidence. In re Commitment of Barbee, 192 S.W.3d 835, 839 (Tex. App.-Beaumont 2006, no pet.). In a factual sufficiency review, we view all the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge we must find that the great weight and preponderance of the evidence contradicts the jury's verdict or the evidence must show that the jury's verdict is clearly wrong or manifestly unjust. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (citing Watson, 204 S.W.3d at 414-15). A jury is entitled to make reasonable inferences from basic facts to determine ultimate fact issues. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). When a record contains disputed testimony, "[t]he jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). As recently stated by the Texas Supreme Court: "Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary." City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (footnotes omitted).
The Evidence
During the trial, the State offered the testimony of A. P. Merillat, Sheri Gaines, M.D., and Hannah, through his videotaped deposition. The trial court also admitted other evidence: Hannah's pen packet and his answers to requests for admissions. Hannah called no witnesses to testify for him during the trial.
During the testimony of A. P. Merillat, the State offered into evidence Hannah's pen packet containing several prior convictions. In 1979, a jury found Hannah guilty of aggravated rape, for which he received a sixteen-year sentence. The records also show that Hannah was convicted in 1999 for indecency with a child and aggravated sexual assault of a child. He received eight-year sentences for each of these offenses.
In his deposition, Hannah admitted that he had been convicted of these three sex crimes. With respect to the aggravated rape conviction, Hannah admitted that he forced the victim to perform oral sex on him. Hannah denied that he was guilty of the charges for indecency with a child and aggravated sexual assault of a child. Hannah testified that he never had a problem with alcohol, but admitted to being under the influence of alcohol when he committed the rape and while he was with the child victim involved in the other sex crimes for which he was convicted.
Hannah responded to requests for admission in which he admitted that he pled guilty to charges of indecency with a child and aggravated sexual assault of a child. Hannah also admitted details involving the 1979 aggravated rape charge.
Dr. Sheri Gaines, a board-certified psychiatrist, testified that she met with Hannah in January 2006 and interviewed him to evaluate whether he had a behavioral abnormality making him likely to reoffend. In reaching her opinion, Dr. Gaines reviewed his arrest records, his disciplinary records while in prison, his medical records, and his education records. Dr. Gaines testified that although Hannah claimed he was not "much of a drinker," Hannah admitted to drinking during all of the sexual offenses. Dr. Gaines explained that alcohol decreased Hannah's impulse control and that because "his impulses tend in the direction of being a sex offender, those two things in combination made him more likely to reoffend."
While discussing the factors she considered, Dr. Gaines testified that she reviewed two actuarial tests performed by another doctor. Dr. Gaines stated that Hannah scored a "high risk for reoffending" on both tests. Based upon her interview of Hannah and his records, Dr. Gaines diagnosed Hannah with pedophilia and sexual sadism. Dr. Gaines testified that in her opinion, Hannah "has a disorder that makes him unable to control his actions sexually [and] that make[s] him dangerous to society."
Analysis
The offenses of indecency with a child and aggravated sexual assault, as set forth in sections 21.11(a)(1) and 22.021 of the Penal Code respectively, are included within the definition of "sexually violent offenses" in the SVP statute. (1) See Tex. Health & Safety Code Ann. § 841.002(8)(A) (Vernon Supp. 2006); Tex. Pen. Code. Ann. § 21.11(a)(1) (Vernon 2003), § 22.021 (Vernon Supp. 2006). Hannah was convicted for one offense of indecency with a child and two offenses of aggravated sexual assault. He received sentences for all three sex crimes. Viewing this prior offense evidence in a neutral light, the jury was rationally justified in concluding that Hannah was a repeat sexually violent offender. See Tex. Health & Safety Code Ann. § 841.003(b) (Vernon 2003) (defining "repeat sexually violent offender" as a person who has been convicted of more than one sexually violent offense and was sentenced for at least one of the offenses); see also Tex. Health & Safety Code Ann. § 841.003(a) (including a person's status as a repeat sexually violent offender as part of the definition of "sexually violent predator"); Watson, 204 S.W.3d at 414-15.
Hannah also argues that the evidence does not show that he is likely to reoffend. Hannah contends that Dr. Gaines's testimony constitutes insufficient evidence that he has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence because Dr. Gaines defined "likely" as "probable" or "beyond a mere possibility." At trial, Dr. Gaines testified that Hannah had a behavioral abnormality that makes him likely to reoffend. Specifically, Dr. Gaines testified as follows:
Q. So, do you believe that [Hannah] has a problem controlling his sexual urges?
A. Yes, I do.
Q. And his inability to control the sexual urges, how does that factor into your assessment?
A. It makes him dangerous. It makes him likely to reoffend.
Q. And do you believe that past behavior is a good predictor of future behavior?
A. Yes.
Q. And why do you believe that?
A. Literature shows that the risk factors for reoffending sexually are if you've done it before, it's likely you'll do it again.
Q. Now, using the definition of behavior[al] abnormality meaning . . . 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, do you believe that Mr. Hannah has a behavior[al] abnormality which makes him likely to engage in predatory acts of sexual violence?
A. Yes, I do.
Q. And when you say "likely," is that using the definition of probable or beyond a mere possibility?
A. Yes, it is.
The record contains fact witness testimony, expert witness testimony, and exhibits from which reasonable jurors could conclude that Hannah suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Hannah's history of prior sex crimes, his pedophilia and sexual sadism diagnoses, and his actuarial test scores are consistent with the jury's conclusion that he has serious difficulty controlling his behavior and is likely to reoffend. (2) Having carefully reviewed the record, we find the evidence factually sufficient under the relevant factual sufficiency standards of review to support the jury's verdict. We overrule Hannah's sole issue and affirm the trial court's judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on April 12, 2007
Opinion Delivered July 12, 2007
Before McKeithen, C.J., Kreger and Horton, JJ.
1. The facts surrounding Hannah's conviction for indecency with a child satisfy the
elements contained within subsection (a)(1) of section 21.11 of the Texas Penal Code, which
requires the actor to engage in sexual contact with the child or cause the child to engage in
sexual contact. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). Hannah's 1979
conviction for aggravated rape which included a finding that a deadly weapon was used
during the commission of the offense equates to a conviction under current statutes for
aggravated sexual assault. See id. § 22.021(a)(1)(A), (2)(A)(iv) (Vernon Supp. 2006).
2.