the Commitment of Victor Dewayne Jackson

AFFIRMED and Opinion Filed October 6, 2021

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00519-CV

IN RE COMMITMENT OF VICTOR DEWAYNE JACKSON

On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. CV1970005

MEMORANDUM OPINION ON REHEARING
Before Justices Molberg, Goldstein, and Smith
Opinion by Justice Goldstein
On the Court’s own motion, our opinion and judgment of August 12, 2021 is

vacated and withdrawn. The following is now the opinion of the Court. Victor

Dewayne Jackson appeals the trial court’s judgment civilly committing him for

treatment and supervision pursuant to the Texas Civil Commitment of Sexually

Violent Predators Act (“SVP Act”). Jackson raises three issues on appeal. In his

first and second issues, Jackson argues the evidence is legally insufficient to prove

that he is a sexually violent predator due to infirmities in expert opinion offered by

the State. In his third issue, Jackson asserts the evidence is factually insufficient to

support the jury’s finding that he is a sexually violent predator. The State argues

that Jackson failed to preserve error on his first two issues, and that the evidence is
both legally and factually sufficient to support the trial court’s judgment. Civil

commitment constitutes a significant deprivation of liberty mandating due process

protections. Upon a review of the entire record, we affirm.

I. SVP Act Commitment Standards1

A civil commitment proceeding under the SVP Act (“SVP case”)

incorporates the “beyond a reasonable doubt” burden of proof typically reserved for

criminal cases. In re Commitment of Fisher, 164 S.W.3d 637, 641 (Tex.), cert.

denied, 546 U.S. 938 (2005). In a suit to commit a person as a sexually violent

predator, the State must prove beyond a reasonable doubt that the person “(1) is a

repeat sexually violent offender” who “(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), 841.062(a). A person is a “repeat

sexually violent offender” if he has been convicted of more than one sexually violent

offense and a sentence was imposed for at least one of the offenses. Id. § 841.003(b);

see also id. § 841.002(8) (defining “sexually violent offense”). The SVP Act defines

“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

1
The record is silent as to the requisite statutory evaluation process that preceded the case before us
and therefore is not addressed in this opinion. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–
841.153.

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and safety of another person.” TEX. HEALTH & SAFETY CODE ANN. § 841.002(2). A

“predatory act” is “an act directed toward individuals, including family members,

for the primary purpose of victimization.” Id. § 841.002(5).

II. Background

Jackson was twice convicted and sentenced for sexually violent offenses:

• On October 25, 1985, in Cause No. 0244657D by the Criminal
District Court No. 3 of Tarrant County, Texas, for aggravated sexual assault
and sentenced to 10 years confinement in the Texas Department of
Corrections.

• On October 4, 1990, in Cause No. F90-03102-KU by the 291st
Judicial District Court of Dallas County, Texas, for aggravated sexual assault
with a deadly weapon, enhanced and sentenced to lifetime confinement in
the Texas Department of Corrections.

Jackson committed his first aggravated sexual assault on March 20, 1984,

when he was 15 years old. The record reflects that Jackson went to a woman’s

apartment, claiming he was sent to touch up paint and collect money. Once Jackson

was inside, he asked whether other people were there or would be there soon. The

woman became upset and argumentative, and something in Jackson snapped. He

forced the woman into a closet, physically and sexually assaulted her, choked her

with a belt and with his hands, bit her and struck her in the face with his fist,

threatened her with a knife, and left her unconscious. The victim was a stranger and

Jackson did not know whether the woman was dead or alive when he left. Jackson

waived a jury trial and pled guilty to sexual assault and attempted murder by choking

with a belt. He began a ten-year prison sentence on March 25, 1985, and served

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approximately four years before being released on parole in April 1989. Jackson

believed he would never sexually reoffend.

Approximately one year into his parole, Jackson pled not guilty to committing

a second sexual assault with a deadly weapon on April 26, 1990. A jury found

Jackson guilty and sentenced him to life in prison without parole. He was 21 years

old. Jackson admits that he ostensibly went to recover some of his belongings from

the home of his child’s grandmother but planned to physically assault her as

punishment for allegedly mistreating children. Evidence reveals that, once inside,

Jackson punched her in the face, dragged her into a bedroom, and raped her. Jackson

held a knife to her throat and threatened to kill her. He tied her up with a telephone

cord, but she managed to free herself. Jackson again physically assaulted her,

retrieved a hammer and threatened to “bash her skull” if she moved, tied her up

again, and then took a copier from the house and left.

The case was tried before a jury. Two experts and Jackson testified. In the

charge, the jury was provided statutory definitions of “sexually violent predator,”

“repeat sexually violent offender,” “behavioral abnormality,” “predatory act,” and

“sexually violent offense.” The trial court granted a directed verdict that Jackson

was a “repeat sexually violent offender” on the ground that uncontested evidence

showed that Jackson previously was convicted and sentenced for more than one

sexually violent offense. A unanimous jury found the State proved beyond a

reasonable doubt that Jackson is a “sexually violent predator.” The court entered

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judgment civilly committing Jackson for sex-offender treatment and supervision by

the Texas Civil Commitment Office. Jackson timely filed a motion for new trial and

a notice of appeal.

III. Specific Legal Insufficiency Arguments

In his first appellate issue, Jackson argues the trial record reveals that Dr.

Clayton’s opinion is not competent evidence because he intruded upon the province

of the jury by incorrectly asserting the law mandates use of his definition of “likely.”

In his second issue, Jackson asserts that Dr. Gaines’s opinions are baseless,

conclusory, and amount to no evidence because Dr. Gaines’s trial testimony revealed

her opinion was not based on the statutory definition of “behavioral abnormality.”

A. Error Preservation

The State asserts that Jackson failed to preserve error on Issues One and Two

because he made no objection at trial to the admissibility or reliability of either

expert witness’s testimony, his motion for directed verdict merely asserted the State

had not met its burden of proof, and his motion for new trial offered no argument

supporting his conclusion that the evidence was legally insufficient. Jackson’s

motion for new trial challenged the legal and factual sufficiency of evidence to

support findings that he suffers from a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence, that he has serious difficulty

controlling his behavior, and that he is a sexually violent predator as statutorily

defined. The motion also challenged the competence of expert opinion regarding

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Jackson’s likelihood of reoffending, and as the statute fails to define “likely,”

contended it is void, unconstitutional, and rendered the expert opinion a guess as to

the term’s meaning.

Complaints of legal and factual insufficiency of evidence raised in a motion

for new trial generally are preserved for review. TEX. R. APP. P. 33.1(a); TEX. R.

CIV. P. 324(b); In re Commitment of Ratliff, No. 05-16-01425-CV, 2018 WL

3829264, at *2 (Tex. App.—Dallas Aug. 13, 2018, no pet.) (mem. op.). Under a

legal sufficiency analysis, an expert’s opinion constitutes no more than a mere

scintilla of evidence if the opinion is not reliable under the same standards that

govern admissibility, is speculative or conclusory on its face, or is based on

unfounded assumptions. Gunn v. McCoy, 554 S.W.3d 645, 662–63 (Tex. 2018)

(citing Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,

233 (Tex. 2004)). A distinction exists between challenges to an expert’s scientific

methodology and no-evidence challenges alleging the face of the record

demonstrates that expert opinion lacks probative value. City of San Antonio v.

Pollock, 284 S.W.3d 809, 817 (Tex. 2009). When expert opinion is admitted in

evidence without objection, it may be considered probative evidence even if the

basis for the opinion is unreliable. W & T Offshore, Inc. v. Fredieu, 610 S.W.3d

884, 899 (Tex. 2020) (citing Pollock, 284 S.W.3d at 818). When a reliability

challenge requires evaluation of the underlying methodology, technique, or

foundational data used by an expert, failure to object at trial waives appellate review

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because the trial court should conduct this analysis. Pollock, 284 S.W.3d at 817;

Gunn, 554 S.W.3d at 661–62. Failure to object does not waive legal sufficiency

challenges to the reliability of expert opinion where there is no need to go beyond

the record to test whether the opinion is conclusory or speculative on its face,

contains fatal gaps in analysis, or is simply incorrect. See Pollock, 284 S.W.3d at

817–18; Gunn, 554 S.W.3d at 662. A judgment may not be supported by conclusory

expert testimony, even if a party did not object to admission of such testimony,

because it is considered no evidence. Bombardier Aerospace Corp. v. SPEP Aircraft

Holdings, LLC, 572 S.W.3d 213, 222–23 (Tex. 2019).

While Jackson failed to object to the admissibility of the experts’ testimony

or the reliability of their underlying data and methodologies, his specific legal

sufficiency challenges raised in Issues One and Two can be evaluated on the face of

the record before us and we will address them.

B. Standards of Reviewing Expert Testimony

Although expert testimony often provides valuable evidence, it is the basis of

the witness’s opinion rather than the witness’s qualifications or bare opinions alone

that can settle an issue as a matter of law; therefore a claim will not stand or fall on

the mere ipse dixit of a credentialed witness. Pollock, 284 S.W.3d at 816 (citing

Coastal Transp., 136 S.W.3d at 232). If an expert opinion has no basis, the basis

offered provides no support, or the opinion assumes facts contrary to conclusively

proven facts, it is conclusory and cannot be considered probative evidence. See

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Gunn, 554 S.W.3d at 662–63; Pollock, 284 S.W.3d at 817–18. Opinion testimony

that is conclusory or speculative is “incompetent evidence” because it does not tend

to make the existence of a material fact “more probable or less probable.” See TEX.

R. EVID. 401; Pollock, 284 S.W.3d at 816.

1. Issue One Analysis

Jackson contends the evidence is legally insufficient to prove he suffers from

a behavioral abnormality that makes him likely to engage in a predatory act of sexual

violence because Dr. Clayton based his expert opinion on an incorrect belief that

case law mandates he define “likely” as “probably or beyond a mere possibility.”

Jackson asserts this was harmful because Dr. Clayton invaded the jury’s province to

decide whether Jackson is likely to engage in future sexual violence by causing the

jury to falsely believe the law mandates use of Dr. Clayton’s definition.

We have addressed this argument before. While experts in prior cases have

testified that the term “likely” has been defined by case law to mean “more than a

mere possibility,” this is incorrect, as neither the statute nor courts have defined

“likely” in this context. In re Commitment of Hill, 621 S.W.3d 336, 342–43, 343 n.

3 (Tex. App.—Dallas 2021, no pet.). Even though courts have not mandated a

particular definition of “likely,” courts have found evidence legally and factually

sufficient to support SVP findings in cases where the expert’s working definition of

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“likely” was “more than a mere possibility.”2 This Court has stated the term ‘likely’

in the Act ‘does not require evidence of a specific percentage of risk, and the term

should not be interpreted to mean ‘more likely than not.’ Rather, the expert’s

personal definition of ‘likely’ goes to the weight the jury decides to give the expert’s

testimony.’” Commitment of Hill, 621 S.W.3d at 343 n.3 (quoting Commitment of

Johnson, 2019 WL 364475, at *3) (internal citation omitted).

Here, Dr. Clayton stated his “understanding” that case law has “examined”

definitions of “likely” in the context of the statute. When given the choice between

case law and a dictionary definition of “likely,” Dr. Clayton testified, “I’m going by

the case law on this type of evaluation,” because he thought, “it’s better to use how

it’s been defined within these evaluations.” Dr. Clayton asserted that he chooses to

define “likely” in the same manner it was defined in prior expert evaluations that

were found acceptable by previous courts in case law he has reviewed, and never

affirmatively stated that case law mandates his or the jury’s use of his proffered

definition that “likely” in the context of the SPV Act means “probably or beyond a

mere possibility.” Additionally, Dr. Clayton agreed that (1) the statute does not

2
See, e.g., Commitment of Hill, 621 S.W.3d at 343–44; In re Commitment of Mendoza, No. 05-18-
01202-CV, 2019 WL 5205710, at *7 (Tex. App.—Dallas Oct. 16, 2019, pet. denied) (mem. op.); In re
Commitment of Johnson, No. 05-17-01171-CV, 2019 WL 364475, at *3, 6 (Tex. App.—Dallas Jan. 30,
2019, no pet.) (mem. op.); In re Commitment of Rollings, No. 05-17-00938-CV, 2018 WL 6695731, at *5–
6 (Tex. App.—Dallas, Dec. 20, 2018, no pet.) (mem. op.); In re Commitment of Riojas, No. 04-17-00082-
CV, 2017 WL 4938818, at *4 (Tex. App.—San Antonio Nov. 1, 2017, no pet.) (mem. op.); In re
Commitment of Terry, No. 09-15-00500-CV, 2016 WL 7323299, at *13–14 (Tex. App.—Beaumont Dec.
15, 2016, no pet.) (mem. op.); In re Commitment of Muzzy, No. 09–13–00496–CV, 2014 WL 1778254, at
*2–3 (Tex. App.—Beaumont May 1, 2014, pet. denied) (mem. op.).

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define “likely,” (2) that it would be very misleading to assign a numerical probability

to Jackson’s likelihood of engaging in a future predatory act, (3) that his opinion is

not a prediction of Jackson’s future actions, (4) that he is not an attorney, and (5)

that he believes the jury is free to use the dictionary definition of “likely.” As we

have said, an expert’s “explanation of how he ‘conceptualizes’ the term ‘likely’”

does not “render the evidence. . .legally or factually insufficient.” Commitment of

Mendoza, 2019 WL 5205710, at *7; accord Commitment of Hill, 621 S.W.3d at 343.

After reviewing all of Dr. Clayton’s trial testimony, we conclude that he did not

misrepresent legal precedent when describing the working definition of “likely” he

employed in reaching his opinion that Jackson meets the statutory definition of a

sexually violent predator.

Jackson also contends that the term “likely” should have been defined in a

manner that would ensure it does not apply to every repeat sex offender, but only to

a “small but extremely dangerous group” of offenders “not amenable to traditional

treatment modalities” in keeping with Section 841.001’s statement of legislative

purpose. We previously addressed this argument and found the legislative purpose

language does not appear in the Act’s “sexually violent predator” definition, thus,

are not elements the State must prove. Commitment of Johnson, 2019 WL 364475,

at *3. Citing Commitment of Johnson with approval, the Texas Supreme Court

expressly rejected this argument, holding the legislative purpose language is not part

of the statute’s SVP definition and therefore is not an element the jury must find. In

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re Commitment of Stoddard, 619 S.W.3d 665, 677–78 (Tex. 2020). We conclude

that Dr. Clayton’s testimony regarding his definition of “likely” does not render the

evidence in this case legally insufficient.

2. Issue Two Analysis

Jackson asserts the evidence is legally insufficient because Dr. Gaines’s trial

testimony revealed her conclusions were based on a standard that pre-dates the SVP

Act rather than the statutory definition of “behavioral abnormality,” proving her

expert opinion is ipse dixit and conclusory. Specifically, Jackson contends Dr.

Gaines’s testimony that the standard she uses to determine whether someone has a

behavioral abnormality “has been ongoing for centuries the way a doctor approaches

a patient” reveals her opinion has no basis because “a ‘behavioral abnormality’ is a

statutory construct that did not exist prior to being written into being by the Texas

Legislature.”3 To the extent Jackson suggests Dr. Gaines should have based her

opinions on the Act’s legislative purpose language, we are bound to reject this

argument. See Commitment of Stoddard, 619 S.W.3d at 677–78. Jackson’s

argument also fails because the SVP Act does not mandate a particular methodology

for experts to use in evaluating whether a person has a “behavioral abnormality.”

While the statutory definition was created in 1999, the field of psychiatry and the

3
Jackson relies on the SVP Act’s legislative purpose language and an intermediate appellate decision
reversed by the Texas Supreme Court after Jackson submitted briefing in this appeal. See In re Commitment
of Stoddard, 601 S.W.3d 879 (Tex. App.—Fort Worth 2019), rev’d, 619 S.W.3d 665 (Tex. 2020).
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methodologies employed to diagnose the myriad of psychiatric disorders that can

satisfy the SVP Act’s definition of “behavioral abnormality” long pre-date the

statute, as the Texas Legislature did not invent psychosis. We conclude that Dr.

Gaines’s statements do not establish that her opinions are baseless or legally

insufficient.4

Accordingly, we conclude the evidence is legally sufficient and overrule

Issues One and Two.

IV. Issue Three - Sufficiency of Evidence

In his third issue, Jackson contends the evidence is factually insufficient to

support the jury’s finding that Jackson is a sexually violent predator. Jackson does

not challenge the directed verdict that his prior convictions establish he is a “repeat

sexually violent offender,” which satisfies the first element of the SVP Act’s

definition of a “sexually violent predator.” Jackson instead challenges the evidence

as factually insufficient to support the second element of the SVP definition—that

he suffers from a behavioral abnormality that makes him likely to engage in a

4
Jackson also contends that Dr. Gaines merely asserted that her “testimony properly relied upon and
utilized the principles involved in the field of psychiatry” and, like the expert rejected in Coble v. State,
cited to no research, books, articles, journals, or work of other forensic psychiatrists who practice in this
area to support her methodology. We note the trial record reveals that Dr. Gaines offered a more detailed
explanation of her methodology than Jackson portrays, that Coble is factually distinguishable, and that the
expert in Coble was found lacking after the trial court conducted a gatekeeper hearing upon a timely
objection. See Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010). Because Jackson’s failure to
object at trial waived any appellate complaint that would require evaluation of Dr. Gaines’s qualifications
or the reliability of her underlying methodologies, and because we find that Jackson’s legal insufficiency
arguments based on the face of the record have no merit, the jury was entitled to consider the testimony of
Dr. Clayton and Dr. Gaines as probative evidence. See Pollock, 284 S.W.3d at 817-18.
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predatory act of sexual violence. Jackson reiterates his contention that the expert

opinion is unscientific and speculative, and argues this deficiency coupled with

countervailing evidence of protective factors overcomes the weight of evidence

supporting the experts’ conclusions that he has such a behavioral abnormality.

A. Standards of Review

If a party challenges both the legal and factual sufficiency of evidence, we

first review for legal sufficiency and only reach a factual sufficiency review if the

evidence is found legally sufficient. Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex.

2019). In SVP cases, we employ the criminal standard of review for legal

sufficiency challenges. Commitment of Johnson, 2019 WL 364475, at *2. We must

view the evidence in the light most favorable to the prosecution and determine

whether any rational factfinder could have found the essential elements of the crime

beyond a reasonable doubt. Commitment of Stoddard, 619 S.W.3d at 675 (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The Texas Supreme Court recently

clarified the distinction between legal and factual sufficiency standards of review in

civil cases where, as here, the burden of proof is beyond a reasonable doubt.

Commitment of Stoddard, 619 S.W.3d at 668. In both legal and factual sufficiency

review, we presume the factfinder resolved disputed evidence in favor of the finding

if a reasonable factfinder could do so, but we must consider undisputed facts contrary

to a finding. Commitment of Stoddard, 619 S.W.3d at 676. A distinction arises in

treatment of disputed evidence that a reasonable factfinder could not have credited

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in favor of a finding—we disregard such disputed evidence in a legal sufficiency

review, but we consider this disputed evidence in a factual sufficiency review. Id.

(emphasis added).

B. Legal Sufficiency Analysis

The State presented two expert witnesses—Dr. Kyle Clayton and Dr. Sheri

Gaines. Dr. Clayton, a psychologist licensed in Texas since 2012, has a private

practice in forensic psychology and is a clinical assistant professor of psychiatry at

UT Southwestern Medical Center, where he supervises forensic psychology students

and has taught classes in forensics. He has been involved in approximately 50

behavioral abnormality evaluations and has performed over 100 sex offense risk

assessments. Dr. Gaines is a licensed medical doctor who is board certified both in

psychiatry, and in child and adolescent psychiatry. She has been practicing forensic

psychiatry for nearly 30 years and has testified in over 100 SVP cases. While asking

a jury to accept expert opinion based on their status as an expert will not suffice, an

expert’s experience alone may provide a sufficient basis for expert testimony.

Bombardier, 572 S.W.3d at 223, 227.

The experts each testified they followed a standard methodology that is in

accordance with their training, accepted in their respective fields, and used by other

evaluators performing behavioral abnormality evaluations. The methodology Dr.

Clayton employed included reviewing hundreds of pages of records relevant to

Jackson’s case, conducting a three-to-four-hour, face-to-face interview with

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Jackson, and administering and scoring risk assessments. Dr. Gaines reviewed

results of the risk assessment tools Dr. Clayton administered to Jackson, reviewed

relevant records, and conducted her own three-hour interview with Jackson. The

records reviewed by both experts include documents from Jackson’s arrests, such as

offense reports and witness statements, records from his trials and incarcerations,

disciplinary records, academic and occupational records, medical and psychiatric

records, depositions, and prior expert evaluations. The experts both testified that the

risk assessments and records relied upon are the same types of assessments and

records typically relied upon by other forensic psychologists and psychiatrists. This

Court previously rejected assertions that expert opinion was speculative or

conclusory where the expert was licensed, experienced, followed a standard

methodology, reviewed the person’s records, interviewed the person, and used or

reviewed testing and risk-assessment tools. See In re Commitment of Joiner, No.

05-18-01001-CV, 2019 WL 4126602, at *3–8 (Tex. App.—Dallas Aug. 30, 2019,

pet. denied) (mem. op.); In re Commitment of Sawyer, No. 05-17-00516-CV, 2018

WL 3372924, at *7 (Tex. App.—Dallas July 11, 2018, pet. denied) (mem. op.).5

5
We note without comment that numerous courts have examined Dr. Gaines’s methodology for
conducting behavioral abnormality evaluations and accepted her testimony as competent evidence. See,
e.g., Commitment of Joiner, 2019 WL 4126602, at *2–8; In re Commitment of H.L.T., 549 S.W.3d 656,
661–64 (Tex. App.—Waco 2017, pet. denied); In re Commitment of Arnold, No. 09-15-00499-CV, 2016
WL 4483181, at *7 (Tex. App.— Beaumont Aug. 25, 2016, pet. denied) (mem. op.); In re Commitment of
Gollihar, 224 S.W.3d 843, 849–54 (Tex. App.—Beaumont 2007, no pet.).

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 Both doctors testified at length regarding the factual bases of their shared

conclusion that Jackson has behavioral abnormalities that make him likely to engage

in future predatory acts of sexual violence. They described risk factors that, if

present, increase the likelihood a person will reoffend, and they discussed protective

factors that militate against a predisposition to reoffend. The doctors testified that

these factors arose from an accepted body of published research and are widely used

in behavioral abnormality evaluations for SVP Act commitments. As each factor

was discussed, the experts described specific facts relied upon in determining

whether the factor applies to Jackson. We summarize the trial testimony as follows:

1. Mental Health Diagnoses

While a medical diagnosis of a mental health disorder is not required evidence

in SVP cases, it informs the relevant assessment whether the defendant has an

abnormality affecting his emotional or volitional capacity in a way that predisposes

him to sexually violent conduct. In re Commitment of Bohannan, 388 SW.3d 296,

304–06 (Tex. 2012), cert. denied, 569 U.S. 1009 (2013). Both doctors diagnosed

Jackson with antisocial personality disorder based upon documentary evidence and

Jackson’s own statements during each of their personal interviews. Dr. Clayton

explained that this disorder can affect a person’s emotional or volitional capacities

and is defined by prolonged, persistent difficulties with conduct, difficulties with

authority, defiance, not following rules, reckless behavior, and impulsive behavior.

He opined that antisocial personality disorder coupled with sexual deviancy places

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a person at a higher risk to sexually reoffend because the antisocial personality does

not follow rules or laws, does not care if they harm other people, and is impulsive

and reckless, making them more likely to act out on feelings of anger or aggression.

Dr. Clayton stated it is one of the more difficult disorders to treat and treatment is

focused on the resulting behaviors because, once established by early adulthood, a

person’s personality cannot be changed. Dr. Clayton’s review of Jackson’s records

revealed evidence of antisocial behaviors. Jackson exhibited behavioral difficulties

in childhood and adolescence, including theft, physical altercations, and committing

his first sexual offense as a juvenile. His antisocial behaviors persisted into

adulthood, as Jackson was arrested multiple times for non-sexual offenses during the

one-year period between being released on parole for his first sexual assault and

committing his second sexual assault. Additionally, Jackson received over 200

disciplinary infractions throughout his time in prison for breaking a variety of rules,

including “disciplinaries” for sexual misconduct that included inappropriate sexual

relationships in prison and public masturbation toward guards. While anti-social

behaviors tend to reduce over time with age, the doctors have not seen this in

Jackson’s case.

Dr. Clayton used the Diagnostic and Statistical Manual (DSM-V) in

diagnosing Jackson with “unspecified paraphilic disorder.” A paraphilic disorder is

related to sexual deviancy and includes pedophilia, sexual sadism, sexual

masochism, and exhibitionism. This disorder is a condition that affects a person’s

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emotional or volitional capacities and a person with this disorder is at a higher risk

to commit a predatory act of sexual violence. Dr. Clayton diagnosed Jackson’s

disorder as “unspecified” because it is not restricted to one aspect of paraphilia.

Jackson’s disorder is characterized by sexual gratification from sexual acts against

non-consenting people, exhibitionism, and sexual sadism. Dr. Clayton’s diagnosis

was informed by details of Jackson’s sexual assaults, his sexual misconduct in

prison, and interviews with Jackson. According to Dr. Clayton, Jackson’s history

indicates his disorder is a long standing and well-ingrained issue that will require a

considerable amount of prolonged treatment to make reasonable change possible,

and Jackson has not had the type of prolonged treatment necessary. The doctor

opined that Jackson’s continued urges to act out sexually, continued rationalization,

continued poor insight, and continued sexual misconduct in prison, are all evidence

that his emotional and volitional capacities are still affected by his paraphilic

disorder.

Dr. Gaines diagnosed Jackson with sexual sadism disorder, which is sexual

gratification derived from someone else’s humiliation, embarrassment, or pain. Dr.

Gaines opined that Jackson acted in a sexually sadistic manner when committing his

sexual assaults and throughout his time in prison, and that his public masturbation

in prison also meets the criteria for diagnosis as an exhibitionist.

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 2. Risk Assessment Tools

Dr. Clayton employed the Static-99R, which he described as the gold standard

of actuarial risk measurement for predicting the likelihood of sexually offending in

the future. Jackson scored a six, which falls in the highest risk range when compared

to others who have been convicted of a sexual offense. Dr. Clayton also used the

Risk for Sexual Violence Protocol in his evaluation of Jackson. This instrument lists

numerous risk factors identified by research for sexual offending and the evaluator

notes which factors are relevant to the individual being evaluated. The instrument

does not yield a score, but puts the person in a category of low, moderate, or high

risk of reoffending. Jackson fell into the high risk category.

Dr. Clayton scored the Psychopathy Checklist Revised (PCL-R) for Jackson.

He explained that psychopathy is a rarer, more intense, and more problematic form

of antisocial personality disorder, and that psychopathy affects every aspect of a

person, impacting their thoughts, feelings, and behaviors. Jackson’s score of 31

indicates he has a psychopathic personality style. Dr. Clayton testified the research

demonstrates that psychopathy increases a person’s risk for violent offending,

including sexual offending, because a psychopath can very easily manipulate and

fool a potential victim. Dr. Gaines agreed with Dr. Clayton’s descriptions of

psychopathy as a risk factor and agreed Jackson has a psychopathic personality.

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 3. Risk Factors for Reoffending

Dr. Clayton explained that some risk factors weigh more heavily in suggesting

a high likelihood of reoffending, and the doctors agreed that research indicates the

two strongest predictors of sexual reoffending are the presence of sexual deviance

and an antisocial personality. Jackson was diagnosed with antisocial personality

disorder, psychopathic personality disorder, and more than one form of sexual

deviance. Dr. Clayton pointed to facts from Jackson’s first sexually violent offense

suggesting sexual deviancy and antisocial traits, including offending against a

stranger, offending both physically and sexually, leaving the scene and initially

denying committing the crime, and eventually being convicted of aggravated sexual

assault. Dr. Gaines described Jackson’s use of extreme physical violence in

committing his sexual crimes as “a gigantic risk factor,” as Jackson used force, bit

and hit his victims, threatened them with and used weapons, and choked his first

victim until she was unconscious. Dr. Gaines identified other risk factors, including

escalation of sexual violence and the psychological coercion used in both offenses,

with Jackson entering the first home under false pretenses and taking advantage of

a trust relationship to gain entry into the second.

Dr. Clayton identified the chronicity of sexual violence as a risk factor

because Jackson sexually reoffended after a period of time, indicating the first sexual

assault was not an isolated incident. He found it significant that Jackson committed

a second sexually violent offense after being caught and convicted because most

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sexual offenders do not reoffend after detection. Dr. Clayton explained that

committing a second sexual assault while on parole also is consistent with antisocial

psychopathy because it demonstrates Jackson’s problems with supervision and

inability to control his behavior, even while still being supervised. Dr. Gaines agreed

that Jackson’s “persistence after punishment” is significant, also identifying

chronicity as a significant risk factor. Dr. Gaines observed that Jackson first

offended at a very young age, itself a risk factor for repeating the behavior, and

Jackson then repeated the behavior with a second sexual assault and continued his

pattern of sexual misbehavior over decades in prison. She also noted that Jackson

still exhibits an attitude that condones sexual violence.

The doctors agreed that Jackson’s receipt of approximately 200 disciplinaries

in prison for failing to follow rules, for creating disturbances, and for both

threatening and assaulting inmates and prison officials is evidence of his antisocial

personality. They agree Jackson’s continued inability to control his sexual impulses

and sexual deviancy is demonstrated by twenty-three sexual misconduct

disciplinaries received from 1992 to 2017. Jackson received these for exposing

himself to male and female officers, attempting and sometimes achieving an

inappropriate sexual relationship with female staff, and masturbating in front of

female officers. Jackson told Dr. Clayton that sometimes he masturbated in front of

female guards for sexual gratification because he believed they wanted him to, but

sometimes he did this to release his anger towards an aggressive or abrasive woman

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to punish her. Jackson described having similar feelings as he had at the time of his

sexual assaults—sexual gratification and releasing anger that he considered triggered

by behavior of those he repeatedly referred to as “whorish women” he desired to

punish. Dr. Clayton characterized Jackson’s statements as indicative of a general

objectification of women, antisocial psychopathic personality, and the risk factor of

condoning sexual violence.

The doctors agreed that lying and presenting different versions of events is

common for people with antisocial psychopathic personality. In his interview with

Dr. Clayton, Jackson denied that he sexually assaulted his child’s grandmother, but

admitted that he was angry with her, went to her home with intent to and in fact

physically assaulted her, held a knife to her throat, and may have wanted to kill her.

Jackson maintained that he was lying in previous statements when he admitted to

her rape, but told Dr. Clayton that she deserved what she got because of the way she

treated children. Dr. Clayton explained that Jackson’s propensity to change details

of his offenses in a way he believes will benefit him speaks to his antisocial

personality, his failure to take responsibility, and a lack of insight into his own

behavior. Dr. Clayton opined that Jackson still displays psychopathic traits such as

grandiosity, narcissism, lying, and manipulation. One example is that Jackson

admits to running scams in prison and gaming the system by faking suicide attempts

to secure transfers to a psychiatric unit or another facility he preferred. His last

transfer was in 2018.

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 Dr. Clayton identified Jackson’s problem with self-awareness as another risk

factor for reoffending. Rather than admit he has problems that need treatment,

Jackson denies or minimizes his sexual offenses, externalizes responsibility by

blaming his inner rage on a desire to punish women due to mistreatment by females

early in life, and rationalizes his sexual acting out as beyond his control because his

anger is triggered. Dr. Clayton explained that Jackson’s planned physical attack to

release his rage at his child’s grandmother and violent thoughts about female guards

indicate the risk factor of violent ideation. Jackson admits to using masturbation to

cope with stress, and Dr. Clayton characterized this as problematic due to Jackson’s

sexual deviancy and history of sexual offenses.

Dr. Gaines agreed that Jackson has all of the risk factors identified by Dr.

Clayton. Additionally, Dr. Gaines explained that having a stranger as a victim is a

risk factor because it means the pool of potential victims is very large, and that

Jackson’s sexual misconduct in prison aimed at male correctional officers is a risk

factor because it makes his pool of potential victims even larger.

Our review of the record reveals that ample factual evidence supports the

opinions of Dr. Clayton and Dr. Gaines, and therefore their conclusions cannot be

characterized as conclusory or speculative. We conclude the expert testimony of Dr.

Clayton and Dr. Gaines is competent evidence that the jury could rely upon in

reaching their verdict. After reviewing the evidence in the light most favorable to

the prosecution, we conclude any rational factfinder could have found beyond a

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reasonable doubt that Jackson is a sexually violent predator as defined by the SVP

Act. See Commitment of Stoddard, 619 S.W.3d at 675.

C. Factual Sufficiency Analysis

The Texas Supreme Court recently clarified the proper factual sufficiency

standard of review for SVP Act cases. The Court stated:

We hold that a properly conducted factual-sufficiency review in an
SVP case requires the court of appeals to determine whether, on the
entire record, a reasonable factfinder could find beyond a reasonable
doubt that the defendant is an SVP. In so doing, the appellate court
may not usurp the jury’s role of determining the credibility of
witnesses and the weight to be given their testimony, and the court
must presume that the factfinder resolved disputed evidence in favor
of the finding if a reasonable factfinder could do so. If the remaining
evidence contrary to the finding is so significant in light of the entire
record that the factfinder could not have determined beyond a
reasonable doubt that its finding was true, the evidence is factually
insufficient to support the verdict.

Commitment of Stoddard, 619 S.W.3d at 668.

Jackson contends the evidence is factually insufficient to support the jury’s

finding that he is a sexually violent predator because countervailing evidence of

protective factors was not sufficiently credited in his favor.

While the presence of protective factors could provide evidence contrary to

the jury’s finding, and being over 50 years of age is statistically protective, both

experts devalued the protection this offers Jackson personally because he admitted

to still having sexual urges and his sexual misconduct in prison was persistent and

recent. The experts agreed that having a good support system is a protective factor.

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Jackson was married approximately ten years ago while in prison, and he described

recent communication with his sister, brother-in-law, and mother. However, neither

doctor was able to ascertain the strength of Jackson’s support system as a protective

factor because records indicate that Jackson’s relationships have not been

consistently supportive.

Jackson specifically argues the following facts should be considered

protective factors strong enough to render the jury’s finding that he is a sexually

violent predator factually insufficient: (1) while undeterred by a four-year

incarceration as a juvenile, he might now exercise control over his behavior after

having served almost thirty years in prison; (2) his disciplinary infractions in prison

were not serious enough to warrant prosecution and he has not committed any

“sexually violent offenses” during his thirty year incarceration; (3) targeting female

guards for exhibitionist masturbation is a common problem in prisons; and (4) he

worked to improve himself during incarceration by attaining a GED and by

participating in prison programs such as anger management and cognitive therapy.

1. Deterrent Effect of Time Served

Jackson argues the deterrent effect of his incarceration for almost thirty years

mitigates against the finding that he is a sexually violent predator. This court has

rejected this argument, observing the issue is whether a defendant meets the

definition of a “sexually violent predator,” not whether the experience of

incarceration may have had a deterrent effect. Commitment of Joiner, 2019 WL

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4126602, at *9 (deterrent effect of thirty-year incarceration not considered in factual

sufficiency review). The notion that SVP evidence can be rendered factually

insufficient by being imprisoned before more offenses could be committed

improperly adds a required element to the statute because the SVP Act defines

“sexually violent predator” in part as “a repeat sexual offender,” which is satisfied

by evidence of two convictions and at least one sentence for sexually violent

offenses. Id.

2. Lack of Recidivism

The jury heard expert opinion that Jackson’s receipt of over 200 disciplinaries

throughout his time in prison was evidence that his antisocial and psychopathic

personality disorders continue to affect his emotional and volitional capacities, and

that the sexual nature of recent disciplinaries shows that he still suffers from sexual

deviancy. Jackson argues his disciplinaries were received for conduct that does not

meet the statutory definition of “sexually violent offense,” so his failure to commit

additional sexually violent offenses during his thirty-year confinement should

overcome the evidence of his inability to control his behavior. Because the SVP Act

requires only two sexually violent offenses to satisfy the “repeat sexual offender”

element, we reject arguments that a lack of sexually violent recidivism, even during

long periods of freedom, is evidence mitigating against a SVP finding. See

Commitment of Joiner, 2019 WL 4126602, at *9 (evidence of ten-year gap between

two sexual offenses when unconfined does not render SVP finding factually

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insufficient); Commitment of Mendoza, 2019 WL 5205710, at *7–8 (rejecting

similar factual insufficiency argument that exhibitionist behavior in prison not

“sexually violent”).

Whether a “repeat sexual offender” is likely to reoffend is not a separate

element of proof in addition to whether the offender has a “behavioral abnormality”

as defined by the SVP statute because the condition (behavioral abnormality) and

the predisposition (likelihood) are one and the same. Commitment of Bohannan, 388

S.W.3d at 302–03. Thus, the only fact issue is whether a “repeat sexual offender”

has a predisposition to commit a sexually violent offense due to impairments in

emotional or volitional capacity–the “behavioral abnormality.” Bohannan, 388

S.W.3d at 305. Our sister courts recognize that the prevalence of ordinary conduct

is of limited value in a factual sufficiency analysis because the SVP Act does not

require a percentage statement of whether a person is likely to reoffend, and the

question is whether there are sufficient indicia that a person has a condition causing

predisposition toward violent sexual conduct. In re Commitment of Ausbie, No. 14-

18-00167-CV, 2021 WL 1972407, at *8 (Tex. App.—Houston [14th Dist.] May 18,

2021, no pet.) (substitute mem. op.) (rejecting argument that two offenses over eight

years unconfined showed defendant exercised control 99.9993% of the time). Such

an argument “belies the magnitude of violent sexual offenses. By [t]his reasoning,

the captain of the Titanic might as well have boasted about how many icebergs he

avoided.” See Commitment of Ausbie, 2021 WL 1972407, at *8, (quoting In re

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Commitment of Woods, No. 02-19-00155-CV, 2020 WL 3969958, at *8 (Tex.

App.—Fort Worth June 11, 2020, pet. denied) (mem. op.)). We agree.

3. Disciplinary Infractions Commonplace

At trial, Jackson minimized the validity and serious nature of his disciplinary

infractions and testified that all prisoners get disciplinaries, while Dr. Gaines

testified she has evaluated many prisoners who received no disciplinaries. Jackson

now argues the experts put too much weight on disciplinaries in forming their

opinions and cites to evidence that it is common in prisons for inmates to target

female guards for exhibitionist masturbation. Jackson’s argument fails, as the Texas

Supreme Court rejects factual insufficiency arguments based on the notion that the

SVP Act is aimed at the “worst of the worst,” making clear the Act merely “requires

evidence of both repeat past sexually violent behavior and a present condition that

creates a likelihood of such conduct in the future.” See Commitment of Stoddard,

619 S.W.3d at 678. Even if public masturbation and other sexual misconduct is

commonplace, this does not militate against finding the behavior is evidence that a

predisposition remains that makes sexual reoffending more likely.

4. Education and Treatment as Protective Factors

The jury heard Jackson’s testimony regarding his efforts to improve himself,

including his prior participation in educational and therapeutic classes, his current

participation in a sex offender treatment program, and his Christian faith. Some of

Jackson’s testimony was disputed, and the jury had the opportunity to weigh his

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credibility. Jackson testified he took anger management classes in prison, but there

also was evidence that he was offered anger management in 2014 and refused it.

While Jackson received a GED and took some college courses in prison, there was

evidence he was forced to discontinue some of the courses because of his behavior.

The jury heard evidence that Jackson was participating in a nine-month sex

offender treatment program that he began six months before trial, which was the first

time sex offender treatment was offered to Jackson. Dr. Clayton testified the goal

of treatment is to teach a person to manage his deviant sexual thoughts and

behaviors. Jackson testified he is not having any problems in treatment. The experts

reviewed records indicating that during the educational phase, Jackson completed

his assignments, participated in class, and was attentive. Treatment notes indicated

that during a later phase, Jackson still had issues with being accountable to the group,

sometimes creating a disturbance in therapy and sometimes deflecting from himself

onto others. Jackson admitted he was reprimanded by the group for not

participating, but said he was never written up for failing to participate and denied

an accusation that he caused one of his peers to get a black eye. The records indicate

that Jackson still rationalizes his past behaviors rather than taking full responsibility

for his actions. At trial, Jackson denied the truth of facts underlying convictions for

unauthorized use of a motor vehicle and drug possession occurring during his one

year of parole between sexual assaults and accused authorities and prior evaluators

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of lying about his statements to them. Dr. Gaines concluded that until Jackson takes

full responsibility, it will be very difficult for him to succeed in treatment.

The jury heard evidence that, both before and midway through treatment,

Jackson expressed that he did not need sex offender treatment. In his deposition,

Jackson said he was willing to participate in the program because he had a lot to

offer his peers so that they could receive the intervention necessary for them to avoid

prison. Jackson told the parole board he was a “waste of beauty” and he believed he

could help others overcome their sexual problems and anger. He wrote on a sex

offender treatment worksheet that after he raped the first woman, he felt empowered,

sexually satisfied, and “I fulfilled my fantasies to be with a white woman sexually.”

At trial, Jackson denied details of his sexual offenses that he previously admitted

during his deposition or prior evaluations and denied the truth of the information he

wrote in sex offender treatment, stating: “In order to complete the sex offender

program you’ve got to admit to the things that are in the police report. If you don’t[,]

you don’t leave prison, period.” Jackson testified that he has no triggers that would

cause him to reoffend, but he admitted a high-risk situation for him to reoffend

sexually would be encountering abusive or aggressive women. He believes he is

safe to be in the community because he will stay away from these women. Dr.

Gaines believes that Jackson has a very limited understanding of his problems and a

lot more work to do to change.

–30–
 Considering research-based protective factors as well as risk factors, the

doctors agree that Jackson currently suffers from a behavioral abnormality that

makes it more likely he will engage in a predatory act of sexual violence. There was

no contradictory expert testimony. Even though Jackson believes he won’t

reoffend—which he also believed the first time he was released from prison—the

experts believe he has yet to complete the extensive therapeutic treatment necessary

to gain an ability to control the dangerous behaviors he exhibited due to his sexual

deviancy and antisocial/psychopathic personality disorder. Jackson testified before

the jury and presented his evidence and arguments to the contrary. In SVP cases,

the jury is the sole judge of witness credibility and the weight to be given testimony,

and we may not substitute our judgment for a jury's reasonable assessment of the

evidence. Commitment of Stoddard, 619 S.W.3d at 676 n. 12 (citing Commitment of

Johnson, 2019 WL 364475, at *3).

Viewing the entire record in a neutral light, we conclude the evidence contrary

to the verdict is not so significant that the factfinder could not have found beyond a

reasonable doubt that Jackson is a sexually violent predator as defined by the SVP

Act. See Commitment of Stoddard 619 S.W.3d at 678.

–31–
 Finding the evidence factually sufficient, we overrule Issue Three and affirm

the trial court’s judgment.

/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE

200519F.P05

–32–
 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN RE COMMITMENT OF On Appeal from the 291st Judicial
VICTOR DEWAYNE JACKSON District Court, Dallas County, Texas
Trial Court Cause No. CV1970005.
No. 05-20-00519-CV Opinion delivered by Justice
Goldstein. Justices Molberg and
Smith participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

Judgment entered this 6th day of October, 2021.

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