In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00499-CV
____________________
IN RE COMMITMENT OF CURTIS ALLEN ARNOLD
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 15-05-05169-CV
__________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to commit Curtis Allen Arnold (Arnold)
as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-
.151 (West 2010 & Supp. 2015) (SVP statute). On October 14, 2015, a jury found
that Arnold is a sexually violent predator, and the trial court rendered a final
judgment and an order of civil commitment. Arnold filed a motion for new trial.
The court denied the motion for new trial. Arnold filed a notice of appeal. In two
issues, Arnold challenges the constitutionality of the SVP statute, as amended, and
1
the denial of his motion for directed verdict. We affirm the trial court’s judgment
and order of civil commitment.
Evidence at Trial
Responses to Requests for Admissions
The State read into the record Arnold’s responses to Requests for
Admissions. Arnold admitted that he was born in July of 1969, that on or about
April 8, 1999, he was convicted in Liberty County of aggravated sexual assault of
a child, who was younger than fourteen, and that he was convicted of indecency
with a child, in a separate cause number in Liberty County. Arnold admitted that
he received an eighteen-year sentence for each Liberty County offense, and he is
currently incarcerated for the Liberty County offenses. Arnold also admitted that in
May of 1999, he was convicted of indecency with a child in Walker County,
Texas, in February of 1999, he was convicted of indecency with a child in
Montgomery County, Texas, and in February of 1999, he was also convicted of
aggravated sexual assault of a child in Montgomery County.
Arnold admitted that he engaged in sexual contact with E.N., a five-year-old
child, and that he engaged in sexual contact with W.T., a thirteen-year-old child.
He admitted that he knew it was wrong to sexually offend against the children, but
2
he did it anyway. Arnold also admitted that he is a sex offender, and that he
believes he has zero risk of reoffending.
The trial court took judicial notice that the offense of indecency with a child
by sexual contact falls under section 21.11(A)(2) of the Texas Penal Code and that
aggravated sexual assault falls under section 22.021 of the Texas Penal Code, and
both are sexually violent offenses as defined by the SVP statute.1
Testimony of Arnold
The State called Arnold as its first witness at trial. Arnold agreed that he has
five convictions for sex offenses, and that his discharge date for his offenses will
be in February of 2017. One of Arnold’s victims, W.T., was the child of one of
Arnold’s friends. Arnold testified about the two occasions when Arnold took W.T.
camping. At the time Arnold offended against W.T., Arnold was twenty-seven
years old and, according to the records, W.T. was twelve years old, although
Arnold testified that he thought W.T. was “like 14[.]” The camping was part of an
event for a group called Society for Creative Anachronism, where the participants
reenact events from the Middle Ages and dress in costumes like “kings and []
queens and knights and lords and ladies.” Arnold testified that he and W.T. stayed
1
At the close of the State’s evidence, the trial court entered a directed
verdict finding Arnold to be a repeat sexually violent offender. Arnold did not
object and does not challenge this finding on appeal.
3
in the same tent. According to Arnold, Arnold was a “massage therapist[,]” and
“massaged” W.T.’s legs because W.T. complained of pain in his legs. Arnold
denied pulling W.T.’s shorts down, denied telling W.T. to relax, denied trying to
remove W.T.’s shorts, and denied intentionally touching W.T.’s sex organ. Arnold
admitted, however, that he pleaded guilty to indecency with a child by contact and
to intentionally and knowingly touching W.T.’s sex organ with sexual desire.
Arnold also admitted that he offended against W.T. on another camping trip that
occurred in Montgomery County, Texas.
Arnold also admitted that on the Montgomery County camping trip, Arnold
sexually offended against another child, E.N., and that he was convicted of the
offense against E.N. Arnold was convicted for two aggravated assaults against
E.N., who was only five years old at the time. Arnold was also charged for
touching E.N.’s sex organ in Liberty County. Arnold denied committing the
conduct for which he was convicted with respect to the aggravated sexual assault
charges.
Arnold testified that he gave a statement to the Cleveland Police and signed
the statement about the offense against W.T., but Arnold claimed that he touched
W.T.’s sex organ not for his own sexual gratification but because he “thought it
was what [W.T.] wanted.” Arnold also agreed that in the statement he gave to
4
police about the offense against E.N., Arnold stated: “I drove [E.N.] to my house.
While on the way, I had my hand on [E.N.]’s [sex organ]. I know that [E.N.] is five
years old[.]” Arnold also signed a written stipulation in connection with the
Montgomery County aggravated sexual assault.
Arnold testified that he was currently enrolled in a sex offender treatment
program. The program is a nine-month program which is part of his parole
stipulation, and it is something he never inquired about before, and he has never
had any other sex offender treatment. The first part of the program is classroom
instruction, and the second part is group therapy. Arnold agreed he never told his
therapist about anything other than two of his offenses, because he says the other
offenses have now “fallen off” of his record. Arnold denied that he has been
resistant to feedback from his treatment. Arnold believes it is safe for him to be
around children because of the treatment he has had and due to his belief in God.
When asked about his risk of reoffending, Arnold testified that he would not put
himself in situations where he would be alone with a child, like going to the mall,
babysitting, or getting involved with women who have children. Arnold also stated
that he does not believe that he has a “deviant sexual attraction to children[,]” and
that he has never had such an attraction.
5
On examination by Arnold’s attorney, Arnold agreed that he deserved every
day he has spent in jail or prison, that he had severely hurt his victims, destroyed
their trust, caused shame, and that what he has done could lead his victims to
depression and destroy their lives. Arnold admits that in one of his statements to
the authorities he said touching his victims was a “joke” and that one of the victims
“wanted [Arnold]” to offend the victim, but he testified that was in the late
nineties. According to Arnold, at the time of the commitment trial, he did not find
sexually abusing children to be sexually exciting, and he did not have sexual
fantasies involving children. Arnold also explained that he has had support while in
prison from his family and from Rabbi Pratt, his “spiritual mentor.” Arnold
believes he has changed and he is not the same person that he was when he
offended against his victims. Arnold testified that while in prison he has not been
charged with any other crime, and he has received no disciplinary write ups.
However, on further examination by the State, Arnold admitted he has
received nine disciplinary violations for violating prison rules while incarcerated.
He received a violation for creating a disturbance, which was a “major case[,]” for
refusing to obey orders, and for possession of contraband (which he says was for
possessing stamps). He did not recall that he has also been written up for refusing
6
to go to his cell. Arnold also testified that he does not believe he has ever been a
pedophile.
Testimony of Dr. Gaines
The State’s expert witness was Dr. Sheri Gaines, a medical doctor with a
specialty in psychiatry. Dr. Gaines is board-certified in psychiatry and in child and
adolescent psychiatry. She currently works at a residential treatment center that
provides services to patients, and she also treats patients in an outpatient setting.
As a forensic psychiatrist for the past twenty-five years, Dr. Gaines testifies in
legal proceedings and performs evaluations for the court system. Approximately
thirty percent of her practice involves forensic psychiatry, and the other seventy
percent involves seeing patients, treating patients, and supervising other clinicians.
Dr. Gaines explained to the jury that she uses a “standard methodology” that
is used by experts in Texas who conduct behavioral abnormality evaluations. Her
opinion was based on her knowledge of literature, facts, and details that she
gathered from interviewing Arnold and from reviewing all the collateral
information. Dr. Gaines also relied upon her education, training, and clinical
judgment. Before interviewing Arnold, Dr. Gaines reviewed Arnold’s records,
which included a report from a psychologist hired by the multidisciplinary team,
Arnold’s indictments and penitentiary packets, and some information regarding the
7
facts and details of his offenses. She also reviewed actuarial instruments from a
psychologist about Arnold. According to Dr. Gaines, her meeting or interview of
Arnold lasted about three hours. After meeting with Arnold, she received
additional records including Arnold’s deposition in this case, additional records
regarding the offenses, as well as prison records and sex offender treatment
records, all of which she reviewed and relied upon. Dr. Gaines explained that some
of the records she reviewed were official records such as police reports and prison
records, and that the older information is important to her in identifying risk factors
that are published in the literature and in looking for a pattern of behavior.
According to Dr. Gaines, “the psychiatric literature indicates that past behavior is a
good predictor of future behavior especially when that past behavior is repetitive.”
Dr. Gaines testified that her evaluation of Arnold was done in accordance
with her training as a psychiatrist, and within accepted standards in the field of
psychiatry. Based upon her education, training, experience and methodology, she
formed an opinion based on a reasonable degree of certainty that Arnold currently
suffers from a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence.
Dr. Gaines diagnosed Arnold with pedophilic disorder and major depressive
disorder. Gaines testified that pedophilia is a chronic condition, but it can lessen
8
with time and treatment. Dr. Gaines diagnosed Arnold with a pedophilic disorder
because: his first offenses against a prepubescent child occurred around September
of 1996 and then continued according to the last conviction around October of
1997, one victim was four or five years old, and another twelve or thirteen, and the
convictions and sexual offenses meet the criteria as defined in the DSM.2
Dr. Gaines explained that she considered the factual details of Arnold’s
offenses. Dr. Gaines recalled that Arnold had seven charges that resulted in five
convictions, and she considered all of the information. During her interview of
Arnold, Arnold denied engaging in some of the sexual acts that were otherwise
documented in records of his offense against E.N., but he admitted fondling the
child and to having the child perform a sexual act that Arnold later denied in his
deposition. Dr. Gaines found it significant that Arnold gave different versions of
what happened at different times; this “is significant because it’s evidence of the
risk factor of not taking full responsibility” and of “the risk factor of minimizing
what he has done.” Dr. Gaines also considered the records from Arnold’s sex
offender treatment program, which indicated that Arnold is “resistant to feedback
that he gets from peers[,]” and although Arnold has made some progress in
treatment, he still has “a lot more to work on.” In Dr. Gaines’s opinion, although
2
Dr. Gaines explained that the “DSM” is the Diagnostic and Statistical
Manual.
9
Arnold “echoed” a lot of terminology, Arnold does not understand why he sexually
offended, which is also significant. And, while one progress note indicated Arnold
admitted he had a sexual attraction to his victims, other notes indicated he does not
admit such attraction. Dr. Gaines considered this as present-day evidence that
Arnold has a sexual deviancy.
Dr. Gaines identified risk factors for Arnold reoffending that include
Arnold’s deviant sexual behavior, offending against prepubescent boys, the range
of the victims’ ages from four to thirteen, the multiple types of sexual acts, the
grooming of his victims, offending in public places, the lack of age-appropriate
romantic relationships, and the lack of accepting responsibility and minimization.
Dr. Gaines also identified some positive factors for Arnold, which include that he
is in sex offender treatment, his faith, and the education he has obtained in prison.
Arnold also scored very low on the PCL-R actuarial as to psychopathic traits.
Testimony of Rabbi James Pratt
James Pratt is a Messianic Jewish Rabbi, a Jewish believer in Jesus Christ,
who has a congregation and also volunteers in the prison system. 3 Rabbi Pratt
3
Arnold notified the State after the deadline in the scheduling order that he
wanted to call Rabbi James Pratt as a witness on behalf of Arnold. In a pretrial
hearing, the trial court ruled that the defense had shown “good cause” for the late
designation, but the court concluded at the pretrial hearing that his testimony was
not relevant. During the trial, the State conceded it had not objected based on
10
mentored Arnold from 2005 until 2013, while Arnold was incarcerated. The Rabbi
admitted that he did not know the details of Arnold’s criminal offenses, but the
Rabbi testified he knew Arnold “has an offense, a sexual offense with children.”
The Rabbi testified about his work in the prison with Arnold and the support
system that faith provides, and he explained that he would not be testifying if “I
wasn’t convinced that [Arnold] was a new man in Christ, that he is remorseful for
his mistake and that he would never do that again. I couldn’t sit here and testify on
his behalf if I had any doubt in my mind that he would repeat that crime.” Rabbi
Pratt also agreed he is not a licensed psychiatrist, counselor, or sex offender
provider. According to Rabbi Pratt, Arnold has admitted to and repented of being
sexually attracted to prepubescent boys, and the Rabbi believes Arnold is sincere.
Constitutional Challenge
In his first issue, Arnold argues that the SVP statute “as amended by Senate
Bill 746 is facially unconstitutional because it requires all persons adjudicated as
sexually violent predators to live in oppressive confinement with no evidence they
cannot be treated in an outpatient model first, and as amended fails the ‘intent-
effects test’ utilized by the Texas Supreme Court in In re Commitment of Fisher,
relevancy, and Dr. Gaines testified about the protective factor of Arnold’s faith.
The trial court then ruled that Rabbi Pratt would be allowed to testify but limited
his testimony. The Rabbi was not allowed to testify as an expert on the specific
risk of reoffending as a sexual offender.
11
164 S.W.3d 637 (Tex. 2005).” Arnold contends that the findings of a trial court
judge as to another civilly committed person, Alonzo May, equally apply to
Arnold, and Arnold argues that “at least five out of six of the ‘intents-effects’ test
factors as analyzed in Fisher have been rendered moot by SB 746.”
Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas
Health and Safety Code in several respects. See Act of May 21, 2015, 84th Leg.,
R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2701, 2701-12. The Legislature created a
new state agency, the Texas Civil Commitment Office (TCCO), with the
responsibility for treatment and supervision of sexually violent predators.4 Id. § 3
(current version at Tex. Health & Safety Code Ann. § 841.007 (West Supp. 2015)).
The Legislature required the TCCO to develop a tiered program of supervision and
treatment that provides a seamless transition from a total confinement facility to
less restrictive housing and supervision and eventual release from civil
commitment, based on the person’s behavior and progress in treatment. Id. § 16
(current version at Tex. Health & Safety Code Ann. § 841.0831 (West Supp.
2015)). Under the statute as amended, the TCCO transfers a committed person to
4
See Tex. Gov’t Code Ann. § 420A.002 (West Supp. 2015). Throughout this
opinion we refer to the Texas Civil Commitment Office by its acronym, “TCCO.”
We refer to its predecessor agency, the Office of Violent Sex Offender
Management, as “OVSOM.” In some places in this opinion, we refer to Chapter
841 of the Texas Health and Safety Code as “the SVP statute.”
12
less restrictive housing and supervision if the transfer is in the best interests of the
person and conditions can be imposed that adequately protect the community, and
a committed person may petition the court for a transfer to less restrictive housing
and supervision. Id. (current version at Tex. Health & Safety Code Ann.
§ 841.0834 (West Supp. 2015)). The enacting language of SB 746 provides:
If a civil commitment requirement imposed under Chapter 841, Health
and Safety Code, before the effective date of this Act differs from any
of the civil commitment requirements listed in Section 841.082,
Health and Safety Code, as amended by this Act, the applicable court
with jurisdiction over the committed person shall, after notice and
hearing, modify the requirement imposed as applicable to conform to
that section.
Id. § 40(b).
The statutory amendments about which Arnold complains became effective
on June 17, 2015, and Arnold’s trial began on October 12, 2015. The appellate
record indicates that Arnold did not raise the issue of the constitutionality of the
amended SVP statute before or during trial, and he failed to raise the issue in his
motion for new trial. Generally, to preserve a complaint for appellate review, the
complaining party must present the complaint to the trial court by timely request,
objection, or motion. Tex. R. App. P. 33.1(a)(1).
We apply the preservation rule to constitutional challenges. See In re L.M.I.,
119 S.W.3d 707, 710-11 (Tex. 2003) (parent failed to preserve his due process
13
challenge); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (party
failed to raise constitutional argument that trial court’s ruling violated open-courts
provision in response to summary judgment motion and thus did not preserve it for
appeal); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (party waived due
process and equal protection challenges by failing to raise them in trial court);
Lowe v. Jefferson Dental Clinics, No. 05-11-00902-CV, 2012 Tex. App. LEXIS
3796, at **4-5 (Tex. App.—Dallas May 14, 2012, no pet.) (mem. op.) (appellant
failed to preserve her challenge to the constitutionality of Chapter 74 by failing to
raise the complaint in the trial court); In re J.R.N., No. 09-08-00029-CV, 2010
Tex. App. LEXIS 2280, at **8-9 (Tex. App.—Beaumont Apr. 1, 2010, no pet.)
(mem. op.) (“The law is well settled that even constitutional errors may be waived
by failure to raise the issues at trial.”). Arnold did not raise his constitutional
arguments in the trial court. Therefore, he failed to preserve the issue for appellate
review. See Tex. R. App. P. 33.1. We overrule Arnold’s first issue.5
5
Nevertheless, even if Arnold had preserved his constitutional challenge, we
would still overrule his first issue. This court recently examined the
constitutionality of the SVP statute, as amended, in In re Commitment of May, No.
09-15-00513-CV, 2016 Tex. App. LEXIS 8058 (Tex. App.—Beaumont July 28,
2016, no pet. h.). In May, we reversed the trial court and concluded that the statute
is constitutional, and we specifically examined and applied the factors as outlined
in Fisher. Id. For the same reasons discussed in May, we conclude the statute
remains civil and we reject Arnold’s constitutional challenge.
14
Motion for Directed Verdict
In his second issue, Arnold argues that the trial court erred in denying his
motion for directed verdict because he claims that the State’s expert, Dr. Sheri
Gaines, “could not provide scientific support for her methodology used in this
case, and could not provide scientific support of her opinion that Appellant’s
actions 16 years ago constitute a behavioral abnormality today.” Arnold did not
raise a challenge to Dr. Gaines’s testimony either before or during her testimony.
However, at the close of the trial, after the State and Defense rested, Arnold moved
for a directed verdict wherein he argued as follows:
[Respondent’s Attorney]: Your Honor, at this time, the Respondent
moves for a directed verdict on the grounds that the State has failed to
offer any proof that Mr. Arnold suffers from a behavioral abnormality.
Evidence is legally insufficient to support a verdict whether the
evidence at trial would enable reasonable and fair minded people to
reach a verdict. The State has presented no evidence or insufficient
evidence to show that Mr. Arnold suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of
sexual violence today. The State’s expert was unable to close the
analytical gap between Mr. Arnold’s last offense and his sexual
behavior today. There is no evidence that even if Mr. Arnold is
sexually deviant that Mr. Arnold is likely to act on that tendency
which is required for the State to prove.
The State’s expert opinion is based upon an unstructured
clinical judgment as she gave no basis for support of her methodology
or the research she relied upon in giving her opinion in this case. She
never cited to any specific articles regarding her risk factors for an
example. She scored no actuarial instruments and, even though she
said she reviewed these instruments, she also testified that she has no
15
training and/or experience in scoring these instruments, thus, her
ability to review this instrument is questionable at best.
Unstructured clinical judgment is a process involving no
specific guidelines but relies on the individual clinician’s evaluation
having regard to the clinician’s experience and qualifications. Thus,
her testimony is wholly conclusory, speculative and unreliable.
The trial court overruled the motion for directed verdict.
We review the denial of a motion for directed verdict under a legal
sufficiency standard. In re Commitment of Hatchell, 343 S.W.3d 560, 564 (Tex.
App.—Beaumont 2011, no pet.). We view the evidence in the light most favorable
to the verdict to determine if a rational jury could have found, beyond a reasonable
doubt, the elements required for commitment under the SVP statute. In re
Commitment of Nicholson, No. 09-13-00498-CV, 2014 Tex. App. LEXIS 10179, at
**9-10 (Tex. App.—Beaumont Sept. 11, 2014, no pet.) (mem. op.). “It is the
factfinder’s responsibility to fairly resolve conflicts in the testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts.” Id.
The State argues that Arnold failed to make timely objections to Dr.
Gaines’s testimony and that he waived the complaints in his motion for directed
verdict. When a party intends to challenge the reliability of an expert’s
methodology, a timely objection must be made in the trial court. Maritime
Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); In re Commitment of
16
Barbee, 192 S.W.3d 835, 843 (Tex. App.—Beaumont 2006, no pet.); see also Tex.
R. App. P. 33.1; Tex. R. Evid. 103. An objection to reliability is timely if it is made
before trial, or when the evidence is offered. Maritime Overseas, 971 S.W.2d at
409. An objection raised after the evidence is offered is not timely. See In re
Commitment of Dodson, 434 S.W.3d 742, 749-50 (Tex. App.—Beaumont 2014,
pet. denied) (finding an objection raised the day following the testimony was
untimely). Additionally, an objection raised after the deadline set in a docket
control order is also untimely. In re Commitment of Conley, No. 09-10-00383-CV,
2011 Tex. App. LEXIS 7877, at **12-13 (Tex. App.—Beaumont Sept. 29, 2011,
no pet.) (mem. op.).
The docket control order in this case set the deadline for challenges to expert
testimony as September 16, 2015. Arnold did not object to the testimony of Dr.
Gaines, or to the reliability or methodology used by Dr. Gaines, until after the
deadline in the docket control order and after both parties had rested and closed at
trial. Appellant does not address this deficiency in his appellate brief. However,
Appellant contends that while “[c]hallenges that raise questions regarding the
scientific reliability of [the] expert’s methodology used to examine a set of facts
must be raised before trial or when the evidence [is] offered[,][] challenges to an
expert’s conclusory, speculative, or ipse dix[i]t opinion may be raised for the first
17
time on appeal (or in Appellant’s case, the motion for directed verdict and the
motion for new trial).”
On appeal, Arnold challenges Gaines’s testimony as conclusory, non-
probative, speculative, and legally insufficient. He contends that there is an
analytical gap between the facts and the expert’s conclusions, the expert’s opinions
are lacking in methodology and authoritative support, and, therefore, unreliable.
Arnold also argues that Gaines misapplied the actuarial tests. Nevertheless, in his
Reply Brief, Arnold states that he “does not challenge the scientific reliability of
Dr. Gaines’ methodology . . .” but rather that Dr. Gaines’s “failure to provide
specific articles or research to support her opinion is what Appellant challenges on
appeal[.]”
Arnold’s complaints regarding Gaines’s use of or misapplication of actuarial
tests and her alleged failure to provide authoritative support for her opinions
concern the foundational data used or relied on by the expert in reaching her
opinions. See In re Commitment of Sprague, No. 09-10-00228-CV, 2011 Tex. App.
LEXIS 4503, at **28-29 (Tex. App.—Beaumont June 16, 2011, no pet.) (mem.
op.). Similarly, a complaint that an analytical gap exists in an expert’s testimony or
a complaint that the expert’s testimony is not based on the facts of the case is a
challenge to the methodology used by the expert. In re Commitment of Robertson,
18
No. 09-09-00307-CV, 2010 Tex. App. LEXIS 7421, at **28-29, 31 (Tex. App.—
Beaumont Sept. 9, 2010, pet. denied) (mem. op.). Arnold’s objections to Gaines’s
testimony were untimely. See Tex. R. App. P. 33.1(a)(1). Under these
circumstances, Arnold’s challenges to the expert’s testimony as outlined in the
motion for directed verdict were not timely preserved for appellate review. See
Dodson, 434 S.W.3d at 749-50; City of San Antonio v. Pollock, 284 S.W.3d 809,
816-17 (Tex. 2009); see also Sprague, 2011 Tex. App. LEXIS 4503, at *29;
Robertson, 2010 Tex. App. LEXIS 7421, at *29; Barbee, 192 S.W.3d at 843.
To the extent Arnold challenges Gaines’s opinions as legally insufficient, we
also disagree. Gaines’s opinions were based upon established methodology and
techniques in her profession. See Dodson, 434 S.W.3d at 750 (quoting In re
Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011, pet.
denied)). Dr. Gaines is a board-certified psychiatrist. The methodology she
employed in this case is the same methodology that she learned during her formal
education and training, and it is the methodology used by other professionals
conducting behavioral abnormality evaluations. Like the expert in Dodson, Dr.
Gaines conducted a face-to-face interview with Arnold. She also reviewed and
relied upon records typically used by other professionals conducting this type of
evaluation. Dr. Gaines diagnosed Arnold with pedophilic disorder and major
19
depressive disorder. She identified risk factors Arnold possesses, as well as
positive factors. She testified about the risk factors and explained what they are
based upon. She also explained to the jury that her opinion is based on her
education, training, clinical judgment, knowledge of the literature, the details
obtained from Arnold and his records, and her review of all of the collateral
information. In Dr. Gaines’s expert opinion, Arnold suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Dr. Gaines explained in detail the facts and evidence she found relevant in forming
her opinions and the role those facts played in her evaluation. Her testimony was
not so speculative or conclusory as to be completely lacking in probative value.
See In re Commitment of Moss, No. 09-12-00599-CV, 2014 Tex. App. LEXIS
1612, at **6-7 (Tex. App.—Beaumont Feb. 13, 2014, pet. denied) (mem. op.).
Conley, 2011 Tex. App. LEXIS 7877, at *13; Sprague, 2011 Tex. App. LEXIS
4503, at **29-30; see also Barbee, 192 S.W.3d at 843.
“The jury is the sole judge of the credibility of the witnesses and the weight
to be given their testimony.” In re Commitment of Mullens, 92 S.W.3d 881, 887
(Tex. App.—Beaumont 2002, pet. denied). The jury may resolve conflicts and
contradictions in the evidence by believing all, part, or none of the witnesses’
testimony. Id. Viewing the evidence in the light most favorable to the verdict, we
20
conclude that a rational jury could have found, beyond a reasonable doubt, that
Arnold is a sexually violent predator, and the evidence is legally sufficient to
support the jury’s finding. See Tex. Health & Safety Code Ann. § 841.062(a); see
also Kansas v. Crane, 534 U.S. 407, 413 (2002); Mullens, 92 S.W.3d at 885; In re
Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930 (Tex.
App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.). Weighing all of the
evidence, we also conclude the verdict does not reflect a risk of injustice that
compels ordering a new trial. See Day, 342 S.W.3d at 213. We overrule both issues
and we affirm the trial court’s judgment and order of civil commitment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 14, 2016
Opinion Delivered August 25, 2016
Before McKeithen, C.J., Kreger, and Johnson, JJ.
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