in Re Commitment of Bradley James Manuel

Opinion issued June 13, 2019

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00650-CV
———————————
IN RE THE COMMITMENT OF BRADLEY JAMES MANUEL, Appellant

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 681719-0101Z

MEMORANDUM OPINION

Appellant, Bradley James Manuel, appeals his civil commitment under the

sexually violent predator [“SVP”] statute. See TEX. HEALTH & SAFETY CODE

§§ 841.001–.153. For a person to be found to be a sexually violent predator, two

elements must be proved: (1) the person is a repeat sexually violent offender, and

(2) the person suffers from a behavioral abnormality that makes the person likely to
engage in a predatory act of sexual violence. Id. § 841.003(a). In two related issues

on appeal, appellant contends that the evidence is legally and factually insufficient

to prove the second issue, i.e., that he suffers from the requisite “behavioral

abnormality.” We affirm.

BACKGROUND

Two witnesses testified at the civil commitment trial: Appellant and Dr.

Randall Price, a forsensic psychologist. Their testimony is summarized as follows:

Appellant’s testimony

Appellant testified that he was sexually abused by an aunt from the age of 3

until 11; he also claimed that his father sexually abused him. Appellant claimed to

have a good childhood, until fourth grade, when he became rebellious. He

eventually dropped out of school in the 9th grade. At the age of 12 or 13, he began

using drugs, including marihuana, cocaine, LSD, and heroin. He also sold drugs and

exchanged drugs for sex. Appellant also acknowledged being an alcoholic.

Appellant met his common-law wife when he was 20; she had two children

under the age of two at the time. His wife soon had two more children during their

marriage. Appellant gave deposition testimony acknowledging that he touched his

step-daughter inappropriately when he was bathing her beginning when she was a

one-year-old. He also acknowledged that he bathed both his step-daughter’s and

step-son’s genitals “roughly” because he resented being asked to bathe them.

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 Appellant thought his step-children were “promiscuous” because the boy,

then six years old, would masturbate and “mess with his sister.” He testified that the

boy and girl, then four years old, would play together in a sexual manner.

One night, appellant’s wife left him with the children and went to work. He

was drinking, smoking marihuana, and watching pornography. He left the room for

a while and returned to find the boy and girl watching the pornography and “playing

with each other.” It made appellant angry, and he yelled at them, “if that’s what

you’ll want to do then that’s what you-all are going to do.” He then made the girl

put her mouth on the boy’s penis, and made the boy put his penis in the girl’s vagina.

When the girl complained that it hurt, appellant made the boy go take a shower.

Appellant then made the girl perform oral sex on him before he penetrated her both

vaginally and anally. When the girl screamed, appellant stopped and he made her

take a bath because “what they did was disgusting.”

CPS became involved and took custody of the children. While the CPS

investigation was proceeding, appellant slept at some friends’ house. The friends had

three boys, ages 2, 5, and 6. While he was staying there, the two older boys claimed

that appellant tied the older boy to a bed and raped him, while making the younger

boy watch.

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 Appellant pleaded guilty to raping his step-daughter, and, though he continued

to deny any other offense, was convicted of raping his friends’ son. He was

sentenced to 25 years’ confinement for each offense.

While in prison, appellant earned his GED and took some college classes. He

also did some on-the-job training. He also got into trouble in prison for exposing

himself to a female guard that he claimed was “coming on” to him. He claimed that

he does not need treatment for drug or alcohol addiction because he quit using them

while in prison.

Appellant was offered parole and sex offender treatment. He claimed that he

rejected the parole, but that he did want the sex offender treatment.

Appellant acknowledged that, while giving his deposition, he stated that he

had a “sickness,” that “would never go away.” He said, “It’s something you have to

keep in check, yes.” He acknowledged that he “was [] sexually addicted,” “[f]or a

long time.”

Appellant testified that he was currently engaged to a woman from the

Phillipines that he met through a pen-pal program, and that “she’s going to come to

the United States . . . to try to have a life together.” Once released, appellant planned

to live on a large piece of property owned by the mother of a man he met in prison,

and that he would renovate the property in exchange for a place to stay.

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 Appellant denied being attracted to prepubescent children. He testified that

he offended because of “stress and anxiety.” He did not believe that he would ever

offend again.

Dr. Price’s testimony

Randall Price testified that he holds a Ph.D. in psychology, and that he is board

certified in forensic psychology. He is also a licensed sex offender treatment

provider in Texas. He testified about the legal term “behavior abnormality” as set

forth in the SVP statute and explained that it is a legal concept only and “is not a

psychological concept at all.” He noted that the SVP statute does not define the term

“likely” and that “it doesn’t mean any particular percentage, just more than a mere

possibility.” He explained that he was retained to determine whether appellant

suffered from a “behavioral abnormality” as required by the SVP statute. Price

testified that to conduct such an evaluation he would (1) review all the applicable

records from appellant’s convictions and confinement, (2) conduct a face-to-face

evaluation of appellant, (3) complete a Static-99 evaluation, and (4) complete a

psychopathy checklist. Price concluded that appellant “does meet the criteria for a

behavioral abnormality as put forth in the Texas Health and Safety Code.” In

reaching this conclusion, Price testified that he was looking for three things: (1)

whether appellant has a diagnosed psychological condition, (2) the risk factors for

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reoffending, and (3) any protective factors that would decrease the risk of a person

reoffending.

Regarding the first thing Price looks for, he testified that appellant suffers

from pedophilic disorder, non-exclusive type, because he is sexually attracted to

both adults and children. He reached this diagnosis because appellant had two

prepubescent victims more than 6 months apart, thus his sexual attraction to children

was documented over a period of time and not a single event. Price testified that

pedophilic disorder is a life-long condition and is not thought to go away on its own.

He did acknowledge that “not all pedophiles have a behavioral abnormality.”

Regarding the risk factors for reoffending, Price testified that he used the

Static-99R test, which uses 10 non-changing, or static factors, to help “provide a

quantitative risk percentage based on the percentage of [sex] offenders who have re-

offended over a five-year time period after the release from prison.” He explained

that the Static-99R is “not the final answer,” but provides a “baseline” when other

non-static factors are also considered. Looking solely at the 10 static factors in the

Static-99R, Price testified that appellant scored a 3, which would indicate that

appellant “falls in the middle, average range of risk [for reoffending] based on the

data on the Static-99R.” He further concluded that, after considering other risk

factors, he would adjust appellant’s risk of reoffending to “slightly above average in

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the risk that he poses.” He explained that reoffending means to be convicted or

charged with another sexual offense.

Price explained that the Static-99R has been used to study three different

sample groups. Under one study, of offenders with a score of 3, 3 to 5 percent had a

new conviction within 5 years. However, in other studies, offenders with a score of

3 had reoffended at a rate of 7 to 9 percent in five years and 18 to 29 percent in 10

years. Price explained that, given the variance in the studies, he would use a point

between the lowest and the highest “to take that as a baseline of the probability of

reoffending, and then to look to the other risk factors and protective factors.”

Price continued testifying that he also considered 13 non-static factors in his

assessement of appellant. Some of those factors included: (1) sexual deviance

[pedophilic disorder] consisting of multiple acts on multiple prepubescent victims,

(2) psychologically coercing the children and punishing them by having them

perform sex acts on one another, (3) denying or minimizing the offenses (by

claiming they were caused by stress, anxiety, and previous abuse against himself)

such that successful treatment is less likely, (4) having both male and female victims,

(5) having victims, some of whom were family members and some of whom were

not, (6) exposing himself to a female officer while in prison because she “came on”

to him, (7) having both adult and prepubescent victims, (8) using drugs or alcohol

when offending, (9) having two aggravated sexual assault convictions arising out of

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separate incidents, (10) having refused parole, possibly because it required sex

offender treatment, thereby indicating “a negative attitude about the value of

treatment,” (11) having untreated substance abuse issues that reduce his control over

his behavior, and (12) misreading sexual cues from others.

Price then considered “protective factors” that would reduce appellant’s risk

of reoffending, which included (1) his “relatively older chronological” age, (2) that

he was not psychotic or bipolar, (3) that “there’s a fairly reasonable plan for his

release,” and (4) that “he has at least average intelligence and has been able to

complete academic work above high school.”

Price concluded that, even considering the protective factors in appellant’s

favor, “[m]y opinion is that his risk of reoffending is somewhat above average for

other sex offenders[,]” and that “he continues to pose a significant risk that’s above

average and that he meets the criteria for a behavioral abnormality as described in

the Texas Health and Safety Code[,]” which makes him likely to engage in predatory

acts of sexual violence.

SUFFICIENCY OF THE EVIDENCE

In two issues on appeal, appellant contends the evidence is legally and

factually insufficient “to support a beyond-a-reasonable-doubt finding that

[appellant] has a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence.” Specifically, appellant argues that “[the SVP

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statute] clearly is not meant to apply to a soon-to-be-released-from-prison sex

offender with only an “average” or even a “slightly above average” risk of

offending.”

Standard of Review

Proceedings pursuant to the SVP statute are civil in nature, but because the

State’s burden of proof at trial is the same as in a criminal case, we review verdicts

in SVP cases using the standard of review applied in criminal cases. In re

Commitment of Williams, 539 S.W.3d 426, 437 (Tex. App.—Houston [1st Dist.]

2017, no pet. h.); In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied); In re Commitment of Wirtz, 451 S.W.3d 462,

464 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We review the evidence in the

light most favorable to the verdict to determine whether any rational fact finder could

find, beyond a reasonable doubt, the elements required for commitment under the

SVP statute. Williams, 539 S.W.3d at 437; Stuteville, 463 S.W.3d at 551. “It is the

fact finder’s responsibility to fairly resolve conflicts in the testimony, weigh the

evidence, and draw reasonable inferences from basic to ultimate facts.” Williams,

539 S.W.3d at 437; Stuteville, 463 S.W.3d at 551; see In re Commitment of Mullens,

92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet. denied) (stating that fact

finder may resolve conflicts and contradictions in evidence “by believing all, part,

or none of the witnesses’ testimony”).

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 When reviewing the factual sufficiency of the evidence in a case under the

SVP statute, we weigh all of 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. Williams, 539 S.W.3d at 437; Stuteville, 463

S.W.3d at 552; see Wirtz, 451 S.W.3d at 464–65 (noting that, while factual

sufficiency review has been abolished in criminal cases in which State’s burden is

beyond reasonable doubt, courts have continued to perform factual sufficiency

review in SVP cases; also declining to decide whether factual sufficiency review

remains available in SVP proceedings because evidence in case was legally and

factually sufficient). We view all the evidence in a neutral light to determine whether

a jury was rationally justified in finding SVP status beyond a reasonable doubt.

Williams, 539 S.W.3d at 437; Stuteville, 463 S.W.3d at 552. We may not substitute

our judgment for that of the jury, which is the sole judge of credibility and the weight

to be given to witnesses’ testimony. Williams, 539 S.W.3d at 437; Stuteville, 463

S.W.3d at 552. We will reverse only if, after weighing the evidence, we determine

that “the risk of an injustice remains too great to allow the verdict to stand.”

Williams, 539 S.W.3d at 437; Stuteville, 463 S.W.3d at 552.

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Legal Sufficiency

Appellant argues that Price “double-dipped” by considering certain risk

factors that were, in fact, covered by the Static-99R, and that, as a result, Price’s

testimony was conclusory and there was no evidence to support his conclusions.

“When [as here] a scientific opinion is admitted in evidence without objection,

it may be considered probative evidence even if the basis for the opinion is

unreliable.” City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009); In re

Commitment of Letkiewicz, 01-13-00919-CV, 2014 WL 2809819, at *6–7 (Tex.

App.—Houston [1st Dist.] June 19, 2014, pet. dism’d) (mem. op.). Nonetheless, a

verdict cannot be sustained on a mere ipse dixit of a credentialed witness. Pollock,

284 S.W.3d at 818; Letkiewicz, 2014 WL 2809819, at * 6. “[I]f no basis for the

opinion is offered, or the basis offered provides no support, the opinion is merely a

conclusory statement and cannot be considered probative evidence, regardless of

whether there is no objection.” Pollock, 284 S.W.3d at 818; Letkiewicz, 2014 WL

2809819, at *6. Thus, we review the evidence at trial to determine whether there

was a basis offered for Price’s opinion.

We begin noting that there is no numeric value or label that can be used to

determine whether an offender is “likely” to reoffend. The word “likely” is not

defined in the statute. Williams, 539 S.W.3d at 439. The Texas Supreme Court, in

considering the different language of “likely to engage in a predatory act of sexual

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violence” and “predisposes the person to commit a sexually violent offense,” stated

that “the import of predisposition and likelihood is exactly the same: increased risk.”

In re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012); Williams, 539

S.W.3d at 439. The court further stated, “An increased likelihood of misconduct

indicates a predisposition, and a predisposition threatens increased likelihood.”

Bohannan, 388 S.W.3d at 303; Williams, 539 S.W.3d at 439. The court thus

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.” Bohannan, 388 S.W.3d at 303 (quoting TEX. HEALTH & SAFETY CODE

§ 841.003(a)(2)); Williams, 539 S.W.3d at 439.

Here, Price testified at length about his methodology, which included

reviewing trial and prison records, interviewing appellant, conducting a Static-99R

test regarding 10 static factors, then considering up to 13 non-static factors, as well

as protective factors weighing in appellant’s favor. As set forth above in this

opinion, Price detailed what factors he considered and why they were important.

After conducting such an analysis, Price concluded that appellant had a behavior

abnormality that predisposed him to committing a sexually violent offense. As such,

there was a basis to support Price’s opinion. See Williams, 539 S.W.3d at 439–40.

(finding evidence sufficient after defendant scored in “low-moderate” range for

reoffending on Static-99R and that expert’s opinion not based solely on Static-99R).

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 Based on Price’s opinion, for which he provided a basis in evidence, we

conclude that a rational jury could have found beyond a reasonable doubt that

appellant suffers from a behavior abnormality that makes him likely to engage in a

predatory act of sexual violence.

Factual Sufficiency

In his second issue, appellant argues that the evidence is factually insufficient

because Price’s opinion is flawed in that he considered some of the same factors in

both the Static-99R and in his consideration of the 13 non-static factors. He also

argues that Price did not consider several protective factors, such as appellant’s lack

of psychopathy. However, appellant’s counsel cross-examined Price on each of

these issues. On the “double-dipping” issue, Price testified that “there’s overlap

[with the Static-99R factors], they’re not exactly the same thing, but there’s overlap,

and these come from different sets of risk factors. And, yeah, there’s overlaps, and

then one of the males that was [a] victim was one of the aggravated sexual assault

of a child cases, yes.” Despite the acknowledged overlap in some of the factors, Price

nonetheless concluded that appellant met the statutory criteria of the SVP statute.

Price also acknowledged that appellant was not a psychopath, but this did not change

his opinion. It was within the province of the jury to weigh the evidence, judge the

credibility of the witnesses, and resolve conflicts in the evidence. See Williams, 539

S.W.3d at 440–41. Viewing all the evidence in a neutral light, we conclude that the

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jury was rationally justified in making the SVP determination beyond a reasonable

doubt, and we cannot conclude that “the risk of an injustice remains too great to

allow the verdict to stand.” Id. We therefore hold that the State presented factually

sufficient evidence that appellant had a behavioral abnormality that made him likely

to reoffend and commit a predatory act of sexual violence. See TEX. HEALTH &

SAFETY CODE § 841.003(a)(2).

Accordingly, we overrule issues one and two.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

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