in Re: The Commitment of Robert Allen Throm

Affirmed and Memorandum Opinion filed March 30, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00575-CV

IN RE: THE COMMITMENT OF ROBERT ALLEN THROM

On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1404574Z

MEMORANDUM OPINION

The State filed a civil petition to commit appellant Robert Allen Throm for
involuntary treatment and supervision as a sexually violent predator. Tex. Health
& Safety Code Ann. §§ 841.001–.151. The jury found that appellant is a sexually
violent predator, and the trial court rendered a final judgment and an order of civil
commitment. Appellant appeals, raising four issues. We affirm.

BACKGROUND

In 1999, the Legislature enacted the Civil Commitment of Sexually Violent
Predators Act (the “Act”), which provides for the civil commitment of sexually
violent predators based on legislative findings that “a small but extremely
dangerous group of sexually violent predators exists and that those predators have
a behavioral abnormality that is not amenable to traditional mental illness
treatment modalities and that makes the predators likely to engage in repeated
predatory acts of sexual violence.” Tex. Health & Safety Code Ann. § 841.001.
The Legislature found it was in the interest of the State to provide a civil
commitment procedure for the long-term supervision and treatment of sexually
violent predators. Id. Under the Act, a person is a sexually violent predator 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.” Id. § 841.003(a).

It is undisputed that appellant has been convicted of two sexually violent
offenses. The first conviction occurred in 1986, the second in 2014. The 1986
conviction involved appellant sexually assaulting a five-year-old boy in a
restaurant bathroom. The 2014 conviction occurred after appellant sexually
assaulted his common-law wife’s six-year-old grandson. As a result of this
undisputed evidence, the focus of appellant’s trial was on the Act’s second
element: did appellant suffer from a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence. See Tex. Health & Safety Code
Ann. § 841.002(2) (defining “behavioral abnormality” as “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.”). Four witnesses
testified during appellant’s trial: (1) forensic psychologist Darrel Turner, (2)
psychiatrist Dr. Sheri Gaines, (3) Maxine Westmoreland, a licensed professional
counselor, and (4) appellant.

2
 Darrel Turner has a doctorate degree in clinical psychology and his practice
focuses, in part, on forensic psychology. Turner explained that forensic
psychology entails applying “knowledge of psychology and clinical psychology in
the courtroom to answer a legal question.” Turner continued that he was retained
to provide his “opinion regarding whether or not [appellant] suffers from a
behavioral abnormality that predisposes him to engage in predatory acts of sexual
violence.”

After lengthy testimony detailing his training and experience, Turner
explained that he became involved in appellant’s case because he had contracted
with the Texas Department of Criminal Justice to perform initial behavioral
abnormality evaluations on inmates. Turner examined appellant and determined
appellant suffers from a behavioral abnormality. According to Turner, “behavioral
abnormality” is a legal term that is defined “as a congenital or acquired condition
that by affecting a person’s emotional or volitional capacity predisposes that
person to engage in a sexually violent act such that they become a threat to the
health and safety of other people.” He was then retained by the State to prepare an
opinion regarding appellant for the subsequent commitment trial.

Gaines is a medical doctor specializing in psychiatry. Gaines worked as a
prison psychiatrist for several years. She primarily has a private practice seeing
patients, but she also works for the State in cases such as appellant’s, on a contract
basis. The latter part of her practice is forensic psychiatry, which is psychiatry
dealing with the legal system. Forensic psychiatry focuses on abnormal or
problematic behaviors. Gaines defined “behavioral abnormality” in the same way
as Turner.

Turner testified regarding the methodology he used in preparing his opinion
on appellant. Turner began by reviewing a packet of appellant’s records sent by

3
the State. These records related to appellant’s criminal history, his sexual offenses,
victim statements, depositions, police reports, court records, and prison records.
Turner also reviewed Gaines’ deposition taken in this case. Turner also conducted
a face-to-face evaluation of appellant, and then scored various psychological
instruments. The psychological instruments included the PCL-R or Psychopathy
Checklist Revised, and the Static-99R, an actuarial instrument. The methods and
instruments Turner used are routinely used by other forensic psychologists.

Gaines explained the methodology that she used to prepare her opinion
regarding appellant. She also reviewed records that had been sent by the State.
These included many, if not all, of the records reviewed by Turner. Gaines also
reviewed Turner’s report and deposition, appellant’s deposition, and several other
depositions. Finally, Gaines met face-to-face with appellant for about three hours.
According to Gaines, her methodology used in this case is the same as the
methodology used by other psychiatrists in similar cases. Gaines explained that
she did not score any instruments regarding appellant because those are tools
normally used by psychologists, not psychiatrists.

Both Turner and Gaines diagnosed appellant with a pedophilic disorder
nonexclusive type, attracted to males. According to both experts, this means
appellant is sexually interested in both prepubescent males1 and adult females.
According to both experts, pedophilic disorder is a chronic or lifelong condition
that cannot be turned on or off at will; it is a condition that does not go away. The
goal of treatment is not a cure, which does not exist, but instead teaching the
person with pedophilic disorder methods to control those deviant thoughts and
urges so they are not acted upon. According to Turner, appellant’s pedophilic
disorder is a condition that affects his emotional or volitional capacity, and is part

1
Prepubescent is generally considered a child under the age of 13.

4
of his behavioral abnormality. Turner also testified that appellant has serious
difficulty controlling his sexual behavior.

Both Turner and Gaines also diagnosed appellant with an antisocial
personality disorder, which Turner explained as a willingness to victimize other
people. This is also a chronic, lifelong condition.

Both experts opined that appellant suffered from a behavioral abnormality as
defined in the Civil Commitment of Sexually Violent Predators statute. See Tex.
Health & Safety Code Ann. § 841.002(2). According to Gaines, her diagnosis was
based on the risk factors appellant has demonstrated over time. In Gaines’ opinion,
the most important risk factors in making this determination are deviant sex and
antisocial behavior, and appellant suffers from both. As a result, Gaines concluded
appellant suffers from a behavioral abnormality that makes him likely to engage in
predatory acts of sexual violence. Turner explained that appellant

has pedophilic disorder which is a sexual attraction to prepubescent
male children in this case. He also has enough antisocial personality
traits that act as a sort of fuel, if you will, that allow him to feel
comfortable finding victims and victimizing those children sexually.
So, when we see those two existing in tandem, the sexually deviant
interest and the willingness to act on it and victimize others, as we see
with [appellant] from 1986 all the way until 2012, across that amount
of time, we still see that willingness to commit these acts of sexual
victimization. And it’s when those two factors exist in tandem that
we are looking exactly at the definition of a behavioral abnormality.
Problems controlling behavior that make you likely to engage in
sexually violent acts.
The jury viewed the video deposition of Maxine Westmoreland, appellant’s
sex offender treatment provider in prison, and it heard excerpts of that deposition
read in court. Westmoreland works in the Texas prison system as a mental health
therapist.

5
 Westmoreland testified that appellant attended her sex offender treatment
program during his incarceration for his second sexual assault conviction. The
program has nothing to do with legal behavioral abnormalities. The program
lasted nine months. Westmoreland explained that the program began with four
months of education, which was followed by five months of group and individual
therapy. According to Westmoreland, appellant completed the program.

Westmoreland diagnosed appellant with borderline personality disorder.
The program was aimed at working on appellant’s self-esteem issues and deviant
fantasies regarding children. According to Westmoreland, the program focused
only on appellant’s second sexual assault offense. Westmoreland testified that
appellant admitted deviant fantasies toward his second victim. Also, according to
Westmoreland, appellant was experiencing deviant sexual fantasies while
participating in her class. Westmoreland did not diagnose appellant with
pedophilia during the program because she saw no need to make the diagnosis.

Westmoreland also testified that it is impossible to tell whether appellant
could apply what he learned in the treatment program to himself. According to
Westmoreland, while appellant did express remorse about his crimes during the
program, it is impossible for her to tell if that remorse was genuine. According to
Westmoreland, even though appellant has completed the prison program, he is still
at risk of reoffending. Westmoreland testified appellant needs to continue working
on identifying his (1) high-risk situations and places, (2) deviant fantasies, (3)
triggers, (4) thoughts, and (5) coping skills. Westmoreland further testified that
she always suggests that inmates who complete her sex offender treatment program
should receive further supervision and treatment. Westmoreland admitted that the
program does not cure anyone. Finally, it was Westmoreland’s expectation that
appellant would connect with another therapist and continue working on learning

6
not to reoffend based on what he had learned during her sex offender treatment
program.

Appellant was the last witness to testify. At the time of trial, appellant was
still in prison on his second sexual assault conviction. At the time of his trial,
appellant had served over five years for sexually assaulting his common-law wife’s
grandson. Appellant admitted that he also had a previous conviction for sexual
assault of another child.

Appellant recounted his life and his numerous trips to prison for various
offenses, including failing to register as a sex offender and aggravated assault.
Appellant also described meeting the woman who would become his common-law
wife. Before they moved in together, appellant told her about his conviction for
the first sexual offense. But, appellant told her that the boy mistakenly identified
him as the perpetrator. For the next eight years, appellant was involved in that
relationship, held a job, purchased a home, and did not commit any crimes.

Then, in 2012, his wife’s grandson came to visit. Appellant testified that it
had not occurred to him that he should not be around the boy, despite the fact that
he continued to have sexual fantasies about boys. As soon as the boy arrived,
appellant’s sexual fantasies surfaced. The fantasies quickly got to the point that
appellant could not control them and he sexually assaulted the boy while his wife
was in the shower.

Appellant admitted that he now knows he has an attraction to young boys.
He also admitted that his fantasies about young boys currently exist and that he
considers himself a pedophile. Appellant testified that he considers his prison sex
offender treatment program to be a first step, but admits that he still has a lot to
learn. According to appellant, before his sex offender treatment program taught by
Westmoreland, he had always just pushed his offenses out of his head and had “no
7
thought about the victim.” Appellant admitted that he needed continued sex
offender treatment and that he cannot control his sexual deviance on his own.
Appellant testified that even though his sexual assaults on children span a twenty-
five year time period, he has only started being honest with himself and others
about what he had done to his victims in the last year. Finally, appellant admitted
he has a lot more work to do in treatment, there is always a chance he will
reoffend, and that ongoing education and therapy is the best way to prevent
reoffending.

At the conclusion of the evidence the case was submitted to the jury and it
found appellant is a sexually violent predator. The trial court rendered a final
judgment and an order of civil commitment based on the jury’s verdict. Appellant
filed a motion for new trial, arguing, among other things, that the evidence was
legally and factually insufficient. The motion was overruled by operation of law.
See Tex. R. Civ. P. 329b(c). This appeal followed.

ANALYSIS

I. Sufficient evidence supports the jury’s determination that appellant
suffers from a behavioral abnormality.

Appellant argues in his first and third issues that the evidence is legally and
factually insufficient to support the jury’s finding beyond a reasonable doubt that
he has a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence. In his second issue, appellant challenges the opinions of the
State’s expert witnesses as conclusory and constituting no evidence. We address
these issues together.

A. Standard of review and applicable law

The commitment of a person as a sexually violent predator is a civil
proceeding. In re Commitment of Fisher, 164 S.W.3d 637, 645–53 (Tex. 2005).
8
The Act requires the State to prove beyond a reasonable doubt that a person is a
sexually violent predator.2 In re Commitment of Harris, 541 S.W.3d 322, 327
(Tex. App.—Houston [14th Dist.] 2017, no pet.). We consider the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact
could have found beyond a reasonable doubt the elements required for
commitment. Id. We may not, however, ignore “undisputed facts that do not
support the finding.” In re Commitment of Stoddard, No. 19-0561, 2020 WL
7413723, at *7 (Tex. Dec. 18, 2020). The jury is the sole judge of the credibility
of the witnesses and the weight to be given to their testimony. In re Commitment
of Harris, 541 S.W.3d at 327. We presume the jury resolved disputed facts in
favor of the finding if a reasonable factfinder could do so. In re Commitment of
Stoddard, 2020 WL 7413723, at *7.

The Act requires evidence of both repeat past sexually violent behavior and
a present condition that creates a likelihood of such conduct in the future. Id. at *9.
A factual-sufficiency review must focus on those actual requirements. Id. The
appellate standard governing a factual-sufficiency review of a finding that a person
is a sexually violent predator is whether, in light of the entire record, the disputed
evidence a reasonable factfinder could not have credited in favor of the verdict,
along with undisputed facts contrary to the verdict, is so significant that the
factfinder could not have found beyond a reasonable doubt that the statutory
elements were met. Id. Further, in reversing for factual insufficiency, the
appellate court must detail why it has concluded that a reasonable factfinder could
not have credited disputed evidence in favor of the finding. Id.

An expert witness may testify regarding scientific, technical, or other
specialized matters if the expert is qualified, his or her opinions are relevant, the

2
See Tex. Health & Safety Code Ann. § 841.062(a).

9
opinion is reliable, and the opinion is based on a reliable foundation. Whirlpool
Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009). No objection to the
admission of an expert’s opinion is required when the expert’s testimony is
conclusory and lacks probative value as a result. Coastal Transp. Co., Inc. v.
Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004). A conclusory
statement is one that expresses a factual inference without providing underlying
facts to support that conclusion. Padilla v. Metro. Transit Auth. of Harris Cnty.,
497 S.W.3d 78, 85 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Conclusory
testimony cannot support a judgment because it is considered no evidence.
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, L.L.C., 572 S.W.3d 213,
222 (Tex. 2019). An expert’s testimony is conclusory when the expert asserts a
conclusion with no basis. Id. at 223. The expert must link his conclusions to the
facts, explaining the basis of his assertions. Id. Additionally, an expert’s
experience alone may be a sufficient basis for expert testimony. Id. at 227. But
asking the jury to take the expert’s word for it because of his status as an expert
will not suffice. Id. at 223. Thus, a judgment may not be supported by conclusory
expert testimony even if a party did not object to admission of such testimony.
City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). This principle
applies when the expert offers no basis for his opinion or the basis offered by the
expert provides no support. Id. at 818. The supreme court has made it clear that “a
claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Id.

B. The evidence is legally sufficient.

Appellant makes a two-pronged argument that the evidence is legally
insufficient to support the jury’s finding that he has a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. First, appellant
argues that the evidence is legally insufficient because it “establishes nothing more

10
than that [he] is just a potentially dangerous but typical recidivist who should be
dealt with exclusively through the criminal justice system and not one of those
very few most dangerous sex offenders who have serious difficulty controlling
their behavior.” Second, appellant argues that the opinions of the State’s two
experts, Turner and Gaines, have no probative value because they are conclusory
due to a lack of an adequate foundation. We disagree with both of appellant’s
arguments.

We turn first to appellant’s arguments that the experts’ opinions have no
probative value because they lack foundation and are conclusory. Here, as
summarized above, each expert explained their education and experience. They
also described the documents and other materials they reviewed and the
methodologies, which are used by other, similar experts in this field, that they used
in performing their evaluation of appellant. This included each expert meeting
individually with appellant. They then explained how they arrived at their
respective conclusions. This included both experts explaining how they
determined that appellant suffered from sexual deviancy and antisocial personality
disorder, the significance of those determinations, and why those findings led to
their opinions that appellant suffers from a behavioral abnormality that makes him
likely to engage in predatory acts of sexual violence. The two experts did not
simply opine appellant suffers from a behavioral abnormality and is therefore
likely to engage in predatory acts of sexual violence. We hold that both experts
laid an adequate foundation for their opinions and they were not conclusory. See
Warner Bros. Entertainment, Inc. v. Jones, 538 S.W.3d 781, 817 (Tex. App.—
Austin 2017) aff’d, 611 S.W.3d 1 (Tex. 2020) (concluding expert laid reliable
foundation for opinion); Padilla, 497 S.W.3d at 86 (addressing allegation that
affidavit was conclusory in inverse condemnation suit). We overrule appellant’s

11
second issue.

We turn next to appellant’s contention that the evidence is legally
insufficient. Here, appellant points out (1) that he was “able to control himself
from committing sexually violent offenses for 99.9997% of his free-world life
between 2004 and 2012;” (2) neither expert determined he was a psychopath; (3)
his score on one of the instruments used by Turner scored him a “5”, which is
significantly below “12,” the highest score for sexual offending on that instrument;
and (4) he had not engaged in any general rule-breaking between his 2004 release
from prison and his 2012 sexual assault and also during his current prison
incarceration. In appellant’s view, the collective effect of this evidence renders the
evidence legally insufficient to support the jury’s finding.

The jury heard the experts testify. The experts took into account each item
appellant points out and explained why they still came to the conclusion that
appellant suffers from a behavioral abnormality that makes him likely to engage in
predatory acts of sexual violence. For example, Turner explained that while he did
not find appellant was a psychopath, he did determine that appellant suffers from
an antisocial personality disorder, which Turner described as a willingness to
victimize other people. Turner further explained it is appellant’s willingness to
victimize other people combined with his pedophilia that means appellant exactly
meets the definition of behavioral abnormality. Turner and Gaines also addressed
the gap between appellant’s sexual assaults and his non-rulebreaking between 2004
and 2012. Far from demonstrating appellant did not have a behavioral
abnormality, it instead offered further support for their conclusion because
committing a sexual assault after being punished for a similar offense is one of the
biggest factors in reoffending. Also, the fact appellant committed sexual assaults
against children across a substantial time period indicated an escalation of

12
appellant’s sexual deviance and that he was not changing as a result of aging. Both
experts recognized that appellant had not committed serious infractions of the rules
during his second sexual assault imprisonment and took that fact into account in
reaching their opinion that appellant suffers from a behavioral abnormality. As
Gaines explained, pedophiles “typically do well in prison with very few
disciplinaries.” According to Gaines, the same is true regarding persons with
antisocial personality disorder, they tend to not break rules in a structured setting
like prison.

The jury also heard appellant testify. Appellant admitted that he needed
continued sex offender treatment and that he cannot control his sexual deviance on
his own. Appellant also admitted that he has a lot more work to do in treatment,
that there is always a chance he will reoffend, and that ongoing education and
therapy is the best way to prevent that. We conclude the evidence is legally
sufficient to support the jury’s verdict. We overrule appellant’s first issue.

C. The evidence is factually sufficient.

Appellant argues that the evidence is factually insufficient because, in his
view, it does not support a finding that he is an “extremely dangerous” or “worst of
the worst” sex offender. The Texas Supreme Court recently addressed, and
rejected a very similar argument.3 See In re Commitment of Stoddard, 2020 WL
7413723, at *8 (“This ‘small but extremely dangerous group’ language, contained
in the Act’s legislative findings, is not part of the statute’s definition of ‘sexually
violent predator’ and was not an element the jury was required to find.”). We

3
The State argues in response to appellant’s factual sufficiency challenge that we should
adopt the Court of Criminal Appeals’ rule first announced in Brooks v. State that the factual
sufficiency standard of review is the same as the legal sufficiency standard of the review. 323
S.W.3d 893 (Tex. Crim. App. 2010). The Texas Supreme Court rejected that same argument in
In re Commitment of Stoddard. 2020 WL 7413723, at *7. We must follow this precedent.

13
therefore reject appellant’s invitation to import this language into the statutory
definition of “sexually violent predator.” To the extent appellant argues that the
same evidence he asserted renders the evidence legally insufficient also makes the
evidence factually insufficient, we disagree. The Act requires evidence of both
repeat past sexually violent behavior and a present condition that creates a
likelihood of such conduct in the future. Id. at *9. Focusing on those
requirements, we conclude that the disputed evidence that a reasonable factfinder
could not have credited in favor of the verdict, along with undisputed facts
contrary to the verdict, is not so significant that the jury could not have found
beyond a reasonable doubt that the statutory elements were met. Id. We overrule
appellant’s third issue.

II. Any error in the jury charge was harmless.

In his fourth issue, appellant argues that the trial court erred when it refused
to submit his requested charge instruction that the jury could render a verdict in his
favor by a 10-2 vote.4 The Texas Supreme Court has also recently resolved this
issue. It held that while “a unanimous verdict is required to find that a defendant is
an SVP, . . . only ten votes are necessary to reach a verdict for the defendant
declining to find that the defendant is an SVP.” In re Commitment of Jones, 602
S.W.3d 908, 913 (Tex. 2020). It then went on to hold that the trial court’s failure
to include an instruction to that effect in the charge was harmless error. Id. at 914–
15. The court explained that,

4
Appellant’s requested instruction provides:
Answer “yes” or “no” to the question. A “yes” answer must be based on a belief
beyond a reasonable doubt. If you do not find beyond a reasonable doubt that the
evidence supports a “yes” answer, then the answer is “no.” If answering “yes,”
your verdict must be unanimous, and all twelve jurors must agree on that answer.
If answering “no,” unanimity is not required, but your verdict must be supported
by the votes of at least ten jurors.

14
 for the purpose of this harm analysis, we must presume that the jurors
voted the way they did because they were conscientiously convinced
of the result they reached. Because the members of the jury
unanimously came to the conclusion that Jones is an SVP, an
instruction explaining that a vote of ten jurors was sufficient for a
verdict declining to find that Jones is an SVP would not have changed
the outcome of this case.
Id. at 915. We are presented with the same situation here. We conclude that any
error the trial court may have committed when it refused to include appellant’s
proposed instruction in the charge was harmless because the jurors found that
appellant was a sexually violent predator by a unanimous vote. We overrule
appellant’s fourth issue.

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.

/s/ Jerry Zimmerer
Justice

Panel consists of Chief Justice Christopher and Justices Jewell and Zimmerer.

15