Opinion filed December 16, 2021
In The
Eleventh Court of Appeals
__________
No. 11-20-00030-CV
__________
IN RE COMMITMENT OF JUSTIN ALLEN STRATTON
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV55427
OPINION
In 2019, the State filed a petition to commit Appellant, Justin Allen Stratton,
for involuntary treatment and supervision as a sexually violent predator pursuant to
the Texas Civil Commitment of Sexually Violent Predators Act (the SVP Act). TEX.
HEALTH & SAFETY CODE ANN. §§ 841.001–.153 (West Supp. 2021). The case
proceeded to trial. After the parties rested and closed, the State moved for a directed
verdict that Stratton is a sexually violent predator. The trial court granted the motion,
in part, and instructed the jury to find that Stratton is a repeat sexually violent
offender, the first requisite element to finding that he is a sexually violent predator.
The parties then presented evidence as to the second statutory element—
whether Stratton suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence. The jury unanimously found, beyond
a reasonable doubt, that Stratton is a sexually violent predator, necessarily finding
that he did suffer from a behavioral abnormality. As a consequence, Stratton was
civilly committed for treatment and supervision in accordance with the dictates of
the Texas Health and Safety Code. See id.
Stratton raises five issues on appeal: (1) the evidence is legally insufficient to
support the “repeat sexually violent offender” element of the State’s case; (2) the
evidence is factually insufficient to support the jury’s behavioral abnormality
finding; (3) the trial court erred when it admitted the findings and opinions of a non-
testifying expert; (4) the trial court erred when it excluded Stratton’s expert witness’s
testimony regarding legislative findings of the SVP Act; and (5) the trial court erred
when it excluded Stratton’s expert witness’s deposition testimony under Rule 106
(the rule of remainder writings) or Rule 107 (the rule of optional completeness) of
the Texas Rules of Evidence. For the reasons discussed below, we affirm the
judgment of the trial court.
I. Factual Background
Before the State petitioned to commit Stratton as a sexually violent predator,
in 2015 he had pleaded guilty to two charges of aggravated sexual assault. Both
offenses occurred within a few months of each other and under similar
circumstances. Stratton was later convicted and sentenced for each offense on the
same day.
2
The first aggravated sexual assault committed by Stratton was against a girl
he knew and had dated previously. They were both at a house party and Stratton
was intoxicated. According to the police report prepared by the investigating officer,
Stratton initiated this assault when he grabbed the victim by the throat and physically
pushed her against a wall. He then threw her onto a bed and sexually assaulted her
by penetrating her vaginally with his penis. Stratton threatened that he would kill
the victim and her family if she did not do what he asked. At the time, Stratton was
eighteen, and the victim was fifteen.
The second aggravated sexual assault committed by Stratton occurred a
couple of months later. Stratton met another teenage girl, a stranger to him, at a
house party at the same home where the first assault had occurred. According to the
police report and the SANE report that were filed for this offense, Stratton and the
victim flirted with each other and may have initially agreed to engage in consensual
sex. However, the reports state that when the victim refused to engage in anal sex
with Stratton, he became violent. He choked the victim from behind, which caused
her to lose consciousness. He then anally penetrated her while she was unconscious,
and this caused blood to run down her legs. He also bit the victim’s lip ring and
pulled it, which caused her lip to bleed. Further, he vaginally penetrated her and
shoved her face into a pillow to muffle her screams.
Other people at the party heard the assault occurring and opened the door to
the bedroom where Stratton and the victim were located; however, Stratton slammed
it shut. The victim fought Stratton off and eventually escaped into the bathroom,
where she locked herself inside. Stratton threatened to “green light” her—to have
her killed by a gang—if she told anyone what he had done to her. Later during the
party, the victim told her older sister what had occurred; several people then began
searching for Stratton to confront him. When Stratton was found, he was severely
3
intoxicated and unable to discuss what had occurred. Several witnesses reported to
the police that Stratton did tell them that he had “done something bad” but that, after
saying this, he immediately passed out from intoxication.
At the civil commitment trial, the State presented Dr. Jason Dunham, a
forensic psychologist, as an expert witness. Stratton presented Dr. Marisa Mauro,
also a forensic psychologist, as his expert witness. Stratton also testified. The
experts presented conflicting opinions regarding whether Stratton suffered from a
behavioral abnormality within the meaning of the SVP Act.
II. Civil Commitment of Sexually Violent Predators
The SVP Act 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 amendable to traditional mental illness treatment modalities and that makes
the predators likely to engage in repeated predatory acts of sexual violence.”
HEALTH & SAFETY § 841.001.
A civil commitment proceeding under the SVP Act incorporates the “beyond
a reasonable doubt” burden of proof that is applicable to criminal cases. In re
Commitment of Fisher, 164 S.W.3d 637, 641 (Tex. 2005). As such, to civilly commit
a person under the SVP Act, the State must prove beyond a reasonable doubt that
the person is a sexually violent predator. HEALTH & SAFETY § 841.062(a); see also
In re Commitment of Stuteville, 463 S.W.3d 543, 551 (Tex. App.—Houston [1st
Dist.] 2015, pet. denied). 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. HEALTH & SAFETY § 841.003(a).
4
Under the SVP Act, a person is a “repeat sexually violent offender” if he “is
convicted of more than one sexually violent offense and a sentence is imposed for at
least one of the offenses.” Id. § 841.003(b). “Behavioral abnormality” means “a
congenital or acquired condition that, by affecting a person’s emotional or volitional
capacity, predisposes the person to commit a sexually violent offense, to the extent
that the person becomes a menace to the health and safety of another person.” Id.
§ 841.002(2). “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.” In re Commitment of Harris, 541 S.W.3d 322, 328 (Tex. App.—Houston
[14th Dist.] 2017, no pet.) (citing In re Commitment of Bohannan, 388 S.W.3d 296,
303 (Tex. 2012)). The supreme court in Bohannan stated that the definition of
behavioral abnormality could be more clearly defined as a “congenital or acquired
predisposition, due to one’s emotional or volitional capacity, to commit a sexually
violent offense, to the extent that the person becomes a menace to the health and
safety of another person.” Bohannan, 388 S.W.3d at 303. Finally, “sexually violent
offense” is defined in the SVP Act to include certain enumerated Penal Code
offenses, including aggravated sexual assault, as well as offenses with substantially
similar elements under prior state law or the law of other jurisdictions. In re
Commitment of Stoddard, 619 S.W.3d 665, 669 n.1 (Tex. 2020); see HEALTH &
SAFETY § 841.002(8)(A) (listing aggravated sexual assault as a sexually violent
offense); TEX. PENAL CODE ANN. § 22.021 (West 2019).
III. Analysis
A. Partial Directed Verdict – Repeat Sexually Violent Offender
In his first issue, Stratton contends that the evidence is legally insufficient to
support the trial court’s grant of a partial directed verdict that Stratton is a repeat
sexually violent offender. Specifically, Stratton asserts that he is not a repeat
5
sexually violent offender because he was convicted and sentenced for both sexually
violent offenses on the same day. We disagree.
We review the grant of a directed verdict in the light most favorable to the
party against whom the verdict was rendered and disregard all contrary evidence and
inferences. In re Commitment of Talley, 522 S.W.3d 742, 750 (Tex. App.—Houston
[1st Dist.] 2017, no pet.). A directed verdict is warranted when the evidence is such
that no other verdict can be reached and the moving party is entitled to judgment as
a matter of law. See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d
636, 645 (Tex. App.—Dallas 2015, no pet.).
Although a defendant has an absolute right to a jury trial in civil commitment
cases under the SVP Act, see HEALTH & SAFETY § 841.061(b), this court and several
of our sister courts of appeals have uniformly held that when the undisputed evidence
establishes that the defendant has been convicted of more than one sexually violent
offense and a sentence was imposed for one of them, a person’s status as a repeat
sexually violent offender becomes a legal determination that is appropriate for the
grant of a partial directed verdict. See In re Commitment of Decker, No. 11-17-
00007-CV, 2017 WL 2869847, at *3–*4 (Tex. App.—Eastland June 30, 2017, no
pet.) (mem. op.) (holding that the trial court did not err when it granted a directed
verdict on the repeat sexually violent offender element); Harris, 541 S.W.3d at 330
(same); In re Commitment of Perdue, 530 S.W.3d 750, 754 (Tex. App.—Fort Worth
2017, pet. denied) (same); Talley, 522 S.W.3d at 750–51 (same); In re Commitment
of Black, 522 S.W.3d 2, 6 (Tex. App.—San Antonio 2017, pet. denied) (same); In
re Commitment of Lemmons, No. 09-13-00346-CV, 2014 WL 1400671, at *3 (Tex.
App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.) (same).
Here, the trial court granted a partial directed verdict in favor of the State and
determined that Stratton is a repeat sexually violent offender because he had been
6
convicted of more than one sexually violent offense and a sentence was imposed for
at least one of the offenses. The State offered two judgments of conviction, which
the trial court admitted into evidence, that proved each of Stratton’s prior aggravated
sexual assault convictions and the sentences that were imposed. Further, Stratton
testified and conceded that he had been convicted of and sentenced for both offenses.
No other evidence in the record controverts these facts. Therefore, the State was
entitled to a directed verdict on the first statutory civil commitment element (that
Stratton is a repeat sexually violent offender) as a matter of law. As such, the trial
court did not err when it granted a partial directed verdict on this element.
Accordingly, we overrule Stratton’s first issue.
B. Factual Sufficiency Review of the Jury’s Behavioral Abnormality Finding
In his second issue, Stratton contends that the evidence was factually
insufficient to support the jury’s finding that he suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
We disagree.1
Although SVP proceedings are civil in nature, the State’s burden of proof is
the same as in a criminal case (beyond a reasonable doubt). Stoddard, 619 S.W.3d
at 674. In these cases, the evidentiary standard of review for factual sufficiency
differs from the evaluation for legal sufficiency. A “factual-sufficiency review is
premised on consideration of the entire record.” Stoddard, 619 S.W.3d at 674 (citing
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). As in a legal sufficiency analysis,
the assumption remains that the factfinder resolved disputed evidence in favor of its
1
In support of his argument, Stratton explicitly relies upon the factual-sufficiency standard
previously set forth by the Fort Worth Court of Appeals in In re Commitment of Stoddard, 601 S.W.3d 879,
891–92 (Tex. App.—Fort Worth, 2019), rev’d, 619 S.W.3d 665, 674–78 (Tex. 2020). The Texas Supreme
Court has since rejected that approach. See Stoddard, 619 S.W.3d at 674–78. Therefore, we will analyze
Stratton’s factual-sufficiency argument under the standard adopted by the supreme court in Stoddard.
7
finding if a reasonable factfinder could do so. Id. However, disputed evidence that
a reasonable factfinder could not have credited in favor of the finding is treated
differently in a factual sufficiency analysis. Id. at 676. Thus, in sexually violent
predator cases the 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 that a reasonable factfinder could not have credited in favor of the
verdict, along with undisputed facts that do not support and are contrary to the
verdict, is so significant that the factfinder could not have found beyond a reasonable
doubt that the statutory elements were satisfied. Id. at 678. A reviewing court’s
mere disagreement with the factfinder’s verdict “as to the proper evidentiary weight
and credibility cannot be the basis of a reversal on factual-sufficiency grounds.” Id.
at 677.
As is often the situation in SVP cases, Stratton’s commitment trial was a
classic “battle of the experts,” each of whom presented testimony that conflicted
with the other. But the question before us is not the proper evidentiary weight or
credibility to be afforded either expert; we defer to the jury on that basis. Id. Rather,
our task is to evaluate the entire record to determine (1) what disputed evidence, if
any, the jury could not credit in favor of the verdict and (2) whether, along with
undisputed facts contrary to the verdict, the disputed evidence is so significant that
the factfinder could not have concluded that the statutory requirements were satisfied
beyond a reasonable doubt. Id. at 678.
1. Dr. Dunham’s Testimony
We begin with the testimony of Dr. Dunham, the State’s expert witness.
Dr. Dunham ultimately opined that Stratton suffered from a behavioral abnormality
and that he has a moderately high risk of reoffending.
8
Dr. Dunham holds a doctorate degree in counseling psychology and he
completed a postdoctoral fellowship in forensic psychology in 2002. His practice
focuses on forensic psychology, and he works in the private sector evaluating sex
offenders and providing expert testimony in commitment proceedings. Dr. Dunham
specializes in sex offender risk assessments and violence risk assessments; he has
also performed numerous risk assessments for imprisoned inmates. Dr. Dunham has
been licensed to practice forensic psychology in Texas since 2006 and he has
performed 265 SVP evaluations in Texas.
After detailing his training and experience, Dr. Dunham explained that he
became involved in Stratton’s case after being retained by the State to evaluate
Stratton’s risk for committing a sexual offense in the future. Dr. Dunham testified
that there is no standard test to determine if a person suffers from a behavioral
abnormality. His evaluation of Stratton consisted of reviewing records, making
necessary diagnoses, identifying risk factors and protective factors, completing a
face-to-face interview with and testing of Stratton, and formulating his ultimate
opinion. In his evaluation of Stratton, Dr. Dunham utilized a “clinically adjusted
actuarial approach” methodology, an accepted standard in the field of forensic
psychology, in which the practitioner adjusts his evaluation when he receives new
and additional information as the case progresses.
The records that are typically reviewed by Dr. Dunham include court records,
police records, interviews and tests conducted by other professionals, depositions,
medical records, education records, and a parole summary. Other experts that
conduct these evaluations rely on the same type of information. In this case,
Dr. Dunham reviewed the evaluation of Stratton that was conducted by another,
previous evaluator, Dr. Charles Woodrick. As part of the initial screening process
to determine whether a person should be considered for civil commitment, the Texas
9
Department of Criminal Justice retains an evaluator—in this case Dr. Woodrick—to
examine the person. See HEALTH & SAFETY §§ 841.022(b), .023(a). In his report,
which Dr. Dunham reviewed and relied upon, Dr. Woodrick opined that Stratton
suffers from a behavioral abnormality.
Dr. Dunham performed an extensive evaluation of Stratton in accordance with
the accepted standards in the field of forensic psychology. He testified that research
has identified certain risk factors that strongly correlate with a person’s affinity to
sexually reoffend. Here, Dr. Dunham identified numerous risk factors that were
present in Stratton; the risk factors were assigned into two broad categories: (a)
sexual deviancy and (b) antisocial orientation.
a. Sexual Deviancy
Dr. Dunham defined “sexual deviancy” as abnormal sexual behavior that,
while not necessarily illegal, is contrary to societal norms. When the abnormal
behavior reaches the level of deviance, it is an indicator that a person may be
predisposed to committing a sexually violent offense. Dr. Dunham reviewed the
records of Stratton’s two previous sexual offenses and utilized the Static-99R, an
actuarial measurement of a person’s risk of sexually reoffending, to evaluate those
offenses. The Static-99R measures ten risk factors that correlate with whether an
offender is likely to reoffend. The test score of an average sex offender is two.
According to Dr. Dunham, Stratton’s test score was four, which placed Stratton in
an “above average risk” category to be reconvicted for a sexual offense, when
compared to the average sex offender.
Based on the results of the Static-99R assessment of Stratton’s two previous
aggravated sexual assault offenses, Dr. Dunham identified the following risk factors
that applied to Stratton: (1) his young age; (2) that one of his previous sexually
violent offenses was against a stranger; (3) that one of his previous sexually violent
10
offenses was against someone who was not his relative; (4) the impulsivity of his
conduct; (5) that he was intoxicated when he offended; (6) that he offended in a
public place or where he could easily be detected; and (7) that he used threats of
violence and actually engaged in violent conduct when he offended. Although
Dr. Dunham also identified as a risk factor that Stratton had a pattern of committing
assaultive offenses, as shown by the assaults he committed against his multiple
victims, he acknowledged that this risk factor was tempered somewhat because
Stratton was sentenced for both offenses on the same date.
Stratton’s young age at the time that he committed these offenses is a pertinent
risk factor because a person’s risk can decrease as he ages. However, according to
Dr. Dunham, Stratton’s risk would only begin to decrease at around age thirty-five.
Stratton was eighteen at the time he committed these offenses, and twenty-three at
the time the commitment action proceeded to trial. Dr. Dunham testified that sexual
offenders who assault victims who are non-family members, and especially
strangers, are considered to have a higher risk of reoffending in the future.
Dr. Dunham stated that Stratton’s substance abuse was “an enormous risk
factor for him” because he appeared to have a difficult time controlling himself when
he was intoxicated and had shown a propensity for violence when he was
intoxicated. He did not believe that Stratton sought out his victims to assault them,
but rather that Stratton would become sexually impulsive, especially when
intoxicated. This was significant to Dr. Dunham because when an offender sexually
assaults his victim in a situation where he could easily be detected or caught, it is an
indication of the offender’s lack of ability to control his sexual urges and impulses.
Dr. Dunham diagnosed Stratton with polysubstance dependence, meaning that
Stratton has a physiological dependence on multiple substances. For Stratton, this
includes alcohol and drug use. As shown by his previous conduct, Stratton becomes
11
violent when he is intoxicated. Dr. Dunham stated that intoxication was the highest
risk situation for Stratton and that he should avoid becoming intoxicated at all costs.
But even if Stratton were to never use drugs or alcohol again, he would still have a
behavioral abnormality; however, his risk would be lower. Importantly, Stratton had
not received any substance abuse treatment, nor did he believe that he needed any.
In fact, Stratton informed Dr. Dunham that it was his intention to use substances
(drugs and alcohol) as soon as he is released from prison.
Dr. Dunham explained that the threat or use of violence or force was
significant to a behavioral abnormality evaluation because it could be used to obtain
compliance from the victim, as well as to keep a victim silent after an assaultive
offense had occurred. Dr. Dunham further explained that a more violent assault
would generally result in a higher level of sexual deviancy and a greater risk of
reoffending.
Although Dr. Dunham did not initially make a diagnosis related to Stratton’s
sexual arousal to violence during a sexual encounter, he later provisionally
diagnosed Stratton with sexual sadism. Sexual sadism, according to Dr. Dunham, is
one’s sexual arousal to the pain or humiliation that is experienced by another person.
Dr. Dunham stated that, while he did not possess enough information to fully
diagnose Stratton as a sexual sadist, he believed that “there is a decent chance that
he is actually sexually aroused to the violence that he inflicts on people.” In support
of this, Dr. Dunham pointed to Stratton’s testimony that he maintained an erection
as he choked and bit his two sexual assault victims and that Stratton was “quite
violent during both assaults.”
In addition to the risk factors measured by the Static-99R assessment,
Dr. Dunham also noted other “dynamic risk factors,” risk factors that can change
over time, that were present in Stratton. Dr. Dunham testified that, in his interview
12
with Stratton, Stratton demonstrated a lack of remorse toward his victims because
he denied, despite having been twice convicted, that he had ever assaulted them. In
fact, Stratton claimed that, in both instances, he did not choke the victims and that
they had engaged in consensual sex only.
Stratton has not received any sex offender treatment, and he told Dr. Dunham
that he did not believe that he needed any treatment, although he previously stated
when deposed that he did. Dr. Dunham opined that this lack of insight posed a risk
of reoffending because Stratton would not understand his high-risk situations, his
triggers, and his offense cycle that led him to sexually offend previously; therefore,
Stratton would not be able to institute safeguards, such as abstaining from alcohol
or drugs, in order to protect himself and others.
b. Antisocial Orientation
Turning to the second broad category for risk of sexually reoffending,
Dr. Dunham diagnosed Stratton with antisocial personality disorder—a chronic,
lifelong disorder that a person develops in their adolescence and continues to
manifest into their adulthood. Citing the Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition, Dr. Dunham explained that a person with this
disorder violates the norms of society, has a lawbreaking behavior, engages in fights,
and has a lack of concern for others. Further, this disorder is pervasive across
domains, environments, and ages. To qualify under this definition, a person with
this disorder must display antisocial behaviors by the time he is fifteen.
Dr. Dunham testified that Stratton exhibited numerous such behavioral
characteristics before and after turning fifteen. For instance, Stratton began using
drugs and alcohol around age ten or twelve. He was also suspended from school
four or five times and was sent to live with his grandparents around the age of eight,
13
because he would steal and get in trouble at home and at school, and because he
brought knives to school, got in fights, and was arrested for stealing.
After turning fifteen, Stratton continued to use and sell drugs, including
methamphetamine, marihuana, and alcohol. And he committed the two aggravated
sexual assault offenses when he was eighteen. Although his official affiliation with
the Aryan Brotherhood gang was unclear, Stratton used his perceived affiliation with
this gang to obtain compliance from victims when he engaged in criminal activity.
After Stratton was imprisoned for his aggravated sexual assault offenses, he,
contrary to prison regulations, had numerous tattoos scribed to his body that depicted
themes of white supremacy and the Aryan Brotherhood. Over the course of four
years of incarceration, Stratton was cited thirty-three times for disciplinary
violations, including the possession of weapons. Dr. Dunham testified that a
person’s behavior in prison is relevant to a personality disorder because it involves
more recent behavior and because it occurs in a new and different domain or
environment. He further stated that, in his experience, Stratton’s excessive number
of disciplinary violations while in prison was higher than the norm.
Multiple times, Stratton’s behavior necessitated a “use of force” response
from prison personnel; to obtain compliance from an inmate, correctional officers
may, if necessary, use force to restrain or subdue a noncompliant inmate. The State
offered, and the trial court admitted into evidence, a video of one such “use of force”
instance. Dr. Dunham testified that, upon reviewing the video, he observed that
Stratton appeared to enjoy the violent force that was used against him by the
correctional officers. In fact, he appeared “jovial” and was “singing happy birthday
to himself.” Dr. Dunham stated that Stratton seemed to cherish the use-of-force
14
incidents and was excited by them. This behavior further supported Dr. Dunham’s
diagnosis of antisocial personality disorder.2
At the time of the commitment trial, Stratton was housed in administrative
segregation. While there, he continued to commit disciplinary violations by
assaulting and threatening correctional officers, and prison personnel were required
to use force against him on three occasions. Although none of these disciplinary
instances involved a sexually violent offense, Dr. Dunham testified that this absence
did not negate the presence of a behavioral abnormality. Rather, according to Dr.
Dunham, the prison domain is not representative of the victims, temptations, and
high-risk situations that Stratton would be exposed to in the community outside of
prison.
Dr. Dunham also administered the PCL-R test, which is a checklist that
measures one’s psychopathic personality, in his evaluation of Stratton. This test is
also used to measure a person’s antisocial orientation. Dr. Dunham testified that
psychopathy is an elevation of antisocial personality disorder, which is an additional
risk factor that is considered in the evaluation. People who are psychopathic and
who have shown to have a history of sexual deviancy have a high correlation with
reoffending in the future. The PCL-R test assesses twenty characteristics of
psychopathy. Overall, Stratton’s score on the PCL-R was 23.3, which falls within
the “moderate” range of psychopathy. Dr. Dunham testified that although this score
indicates that Stratton is not a true psychopath, all of the scores are simply a measure
of severity. Further, Stratton’s young age limits the test’s accuracy because a
psychopath’s score would be expected to increase over time as the psychopath ages.
2
Dr. Dunham also related the video to his provisional diagnosis of sexual sadism because, in
addition to the evidence that Stratton maintained an erection while being violent with the two victims, the
video indicated to Dr. Dunham that “there is a decent chance that [Stratton] is actually sexually aroused to
the violence that he inflicts on people.”
15
Dr. Dunham noted that he excluded two characteristics in the PCL-R assessment that
were not applicable to Stratton because of his young age. However, according to
Dr. Dunham, Stratton’s score could increase over time because those factors would
become relevant.
c. Protective Factors
Finally, protective factors, such as increased age or substance abuse treatment,
may reduce a person’s risk of reoffending. Dr. Dunham testified that he did not
identify any protective factors that applied to Stratton. Although employment can
be a protective factor, Dr. Dunham stated that because Stratton committed the two
aggravated sexual assaults while he was employed, Dr. Dunham did not consider his
employment status to be a protective factor. Further, because family support may
be a protective factor, Dr. Dunham stated that he was not sure what family support,
if any, Stratton had received before committing the assaults.
In summary, based on his evaluation of Stratton, Dr. Dunham determined that
Stratton possesses numerous sexual deviancy factors that indicated a risk to reoffend,
including a propensity for intoxication, impulsivity, and violence in sexual assault
settings. Further, Stratton had not received any substance abuse treatment or sexual
offender treatment, despite being diagnosed with polysubstance dependency and
having committed multiple aggravated sexual assaults. According to Dr. Dunham,
Stratton had neither shown remorse nor acknowledged the commission of these
offenses, even though he pleaded guilty to both. Dr. Dunham also diagnosed
Stratton with antisocial personality disorder, concluded that Stratton scored as an
above-average risk to sexually reoffend, and determined that Stratton possessed a
moderate level of psychopathic traits. Ultimately, Dr. Dunham concluded that
Stratton’s risk to reoffend was moderately high and that Stratton suffered from a
16
behavioral abnormality as defined by the SVP Act that makes him likely to engage
in a predatory act of sexual violence in the future.
2. Dr. Mauro’s Testimony
Dr. Mauro, Stratton’s retained expert witness, opined that Stratton does not
suffer from a behavioral abnormality. Dr. Mauro is a forensic psychologist who has
performed over two hundred SVP evaluations. Dr. Mauro holds a doctorate in
psychology; she is also a licensed sex-offender-treatment provider. She maintains a
private practice in Austin and provides expert testimony in civil and criminal
commitment proceedings. Like Dr. Dunham, she has performed mental health
assessments for sex offenders who were incarcerated, albeit primarily in the
California prison system. In this case, Dr. Mauro used the same methodology, and
relied on the same records, as Dr. Dunham in formulating her opinions.
Dr. Mauro testified that she did not believe that Stratton satisfies the criteria
to be diagnosed with antisocial personality disorder. She stated that although she
did not diagnose Stratton with this disorder, it would be reasonable for others to do
so. Dr. Mauro believes that even though Stratton’s conduct as a juvenile was
somewhat indicative of the traits of antisocial personality disorder, his low
socioeconomic class contributed to his behavior. She opined that Stratton had
endured a difficult childhood, which included emotional and psychological abuse
and neglect. According to Dr. Mauro, Stratton’s background, young age, and fear
of prison were the reasons for his antisocial behaviors that occurred before and
during his incarceration.
Dr. Mauro did not diagnose Stratton with sexual sadism because she did not
detect any indication that he had this type of persistent interest or preference.
Dr. Mauro did not view the prison use-of-force video because she did not consider
it relevant to her evaluation of Stratton in determining whether he is a sexual deviant
17
or possesses a behavioral abnormality. She did note, however, that a paraphilia
diagnosis is not required to find that a person suffers from a behavioral abnormality.
Although Dr. Mauro did not diagnose Stratton with polysubstance abuse
disorder, she did diagnose that he suffers from alcohol use disorder and marihuana
or cannabis use disorder. She does not believe that any of these disorders are
currently active because they manifested years ago and were in remission while he
was in the controlled environment of prison. Further, Dr. Mauro did not find
Stratton’s use of substances while in prison to be a relevant consideration.
Nevertheless, she did testify that, if Stratton returned to using drugs or alcohol after
he is released from prison, he would become a greater risk to reoffend sexually.
Dr. Mauro identified what she considered to be pertinent risk and protective
factors. In doing so, she utilized the Static-99R, Static-2002R, and PCL-R tests.
Dr. Mauro agreed with Dr. Dunham’s use and scoring assessment with the Static-
99R. Stratton’s score of four on that assessment assigned him to an “above average
risk” to reoffend category. Of that group, ten to twelve percent were reconvicted
within a five-year period, and a person with a score of four is expected to recidivate
nearly two times as often as the typical sex offender. Dr. Mauro also assessed
Stratton using the Static-2002R, which is a subsequent version of the Static
instrument, because research suggests that it is more accurate to score both test
versions and then average the predicted risks for sexual recidivism. According to
Dr. Mauro, Stratton’s score on the Static-2002R was a four. Dr. Mauro concluded
that approximately ten percent of the group that Stratton was assigned to were
reconvicted within five years.
Stratton scored a 15.8 on the PCL-R, which was significantly lower than the
23.3 score that was noted by Dr. Dunham. Dr. Mauro testified that she believes she
and Dr. Dunham placed different emphases on different items, which explains the
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disparities in the scores that they assessed. Irrespective of the scores, Dr. Mauro
does not believe that Stratton is a psychopath, even though Dr. Dunham’s score
indicates that Stratton possesses significant psychopathic traits.
Ultimately, and based on her evaluation of Stratton, Dr. Mauro opined that
Stratton does not have a behavioral abnormality and that he has a below-average risk
to reoffend sexually. Additionally, she stated that she does not believe that Stratton
would require sex offender treatment to prevent him from reoffending.
3. Discussion
We have carefully reviewed the entire record, which is extensive and well
developed. In doing so, we hold that the disputed evidence 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 factfinder could not have found beyond a
reasonable doubt that the statutory elements were met.
Because the trial court concluded, as a matter of law, that Stratton is a repeat
sexually violent offender, the jury was only required to determine if Stratton suffers
from a behavioral abnormality that would make him likely to engage in a predatory
act of sexual violence. Drs. Dunham and Mauro agreed that Stratton presented an
above average risk to reoffend according to the Static-99R instrument, which focuses
on antisocial elements. Nevertheless, they disagreed about the importance or weight
of some of the individual risk factors that were measured. Their opinions and
diagnoses also conflicted.
Dr. Dunham diagnosed Stratton with (1) antisocial personality disorder and
(2) polysubstance disorder. According to Dr. Dunham, the potential for substance
abuse is an “enormous” risk factor for Stratton to reoffend because Stratton had
indicated his intention to immediately resume abusing substances after he is released
from prison. Dr. Dunham also provisionally diagnosed Stratton with sexual sadism.
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Conversely, Dr. Mauro did not diagnose Stratton with antisocial personality
disorder, sexual sadism, or polysubstance dependence; however, she did diagnose
Stratton with alcohol abuse disorder and marihuana abuse disorder. Dr. Mauro
believed that these disorders were in remission while Stratton was in a controlled
prison environment, but that Stratton would be at a high risk to reoffend if he did use
those substances.
According to Dr. Dunham, Stratton’s score on the PCL-R was a 23.3, which
is indicative of a “moderate” level of psychopathy. When tested by Dr. Mauro,
Stratton’s score was a 15.8. Although these test scores did not measure Stratton to
be a true psychopath, Dr. Dunham believes that Stratton does present a moderate
level of psychopathic traits.
Despite his history of violent sexual offenses, Stratton has received no sex
offender treatment and does not believe that such treatment is necessary.
Dr. Dunham identified this as a significant risk factor because Stratton will not have
the awareness to modify his behavior and avoid situations that pose a high risk to
reoffend. Conversely, Dr. Mauro believes that Stratton has a low risk to reoffend
and does not need sex offender treatment.
Of the disputed evidence, the jury reasonably could not have credited
Dr. Dunham’s provisional diagnosis of sexual sadism in favor of the verdict.
Nevertheless, there is sufficient and significant evidence in the record to support the
jury’s verdict that Stratton suffers from a behavioral abnormality. Although
Dr. Dunham and Dr. Mauro presented conflicting testimony concerning whether
Stratton has a behavioral abnormality, it is the factfinder’s task to determine the
weight and credibility of a witness’s testimony, and we defer to the factfinder on
those determinations. Stoddard, 619 S.W.3d at 675–76 (citing Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)). Indeed, it is undisputed
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that Stratton was not officially diagnosed as a psychopath and that he is serving
sentences for his aggravated sexual offense convictions. Nevertheless, this
undisputed evidence is not so significant in light of the entire record that the
factfinder could not have found beyond a reasonable doubt that the statutory
elements were met. See id. at 676.
Therefore, under the Stoddard standard of review, we hold that the evidence
is factually sufficient to support the jury’s verdict. In light of the entire record, the
jury could have determined, beyond a reasonable doubt, that Stratton has a
behavioral abnormality under the SVP Act and is a sexually violent predator.
Accordingly, we overrule Stratton’s second issue.
C. Evidentiary Issues
We review a trial court’s evidentiary rulings in a commitment proceeding for
an abuse of discretion. In re Commitment of Mares, 521 S.W.3d 64, 69 (Tex. App.—
San Antonio 2017, pet. denied). A trial court abuses its discretion when it acts
without regard for guiding rules or principles. U-Haul Intern., Inc. v. Waldrip, 380
S.W.3d 118, 132 (Tex. 2012) (citing Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998)). Because Stratton’s third, fourth, and fifth issues
all concern evidentiary rulings made by the trial court during the commitment trial,
we review each ruling under this standard.
1. Admissibility of Non-Testifying Expert’s Opinion
In his third issue, Stratton asserts that the trial court erred when it permitted
Dr. Dunham to testify about the findings and opinion of Dr. Woodrick, the State’s
initial, multidisciplinary team evaluator, because (1) Stratton had no opportunity to
cross-examine Dr. Woodrick, (2) Dr. Dunham’s testimony about Dr. Woodrick’s
report was hearsay, (3) Dr. Woodrick’s report was prepared in anticipation of
litigation, and (4) the admission of Dr. Woodrick’s opinion through Dr. Dunham
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was fundamentally unfair and a violation of due process. We hold that the trial court
did not abuse its discretion as Stratton claims.
The SVP Act specifically confers upon a person the right to cross-examine a
witness who testifies against him. HEALTH & SAFETY § 841.061(d)(3); see TEX. R.
EVID. 611(b). Nevertheless, in commitment cases that involved similar evidentiary
disputes, our sister courts of appeals have uniformly held that the Rules of Evidence
permit an expert witness to testify about a non-testifying expert’s report or opinion
that the offender suffers from a behavioral abnormality. See, e.g., In re Commitment
of Jurischk, No. 03-18-00670-CV, 2019 WL 2308594, at *6 (Tex. App.—Austin
May 31, 2019, no pet.) (mem. op.); In re Commitment of Sawyer, No. 05-17-00516-
CV, 2018 WL 3372924, at *6 (Tex. App.—Dallas July 11, 2018, pet. denied) (mem.
op.); In re Commitment of Winkle, 434 S.W.3d 300, 315 (Tex. App.—Beaumont
2014, pet. denied); accord In re Commitment of Barnes, No. 04-17-00188-CV, 2018
WL 3861401, at *5 (Tex. App.—San Antonio Aug. 15, 2018, no pet.) (mem. op.);
In re Commitment of Carr, No. 09-14-00156-CV, 2015 WL 1611949, at *2 (Tex.
App.—Beaumont Apr. 9, 2015, no pet.) (mem. op.). We agree.
An expert witness may base his opinion on facts or data that he has reviewed
or personally observed. TEX. R. EVID. 703. If experts in the particular field would
reasonably rely on those types of facts or data in formulating an opinion on the
subject, they need not be admissible for the opinion to be admitted. Id. Rule 705(a)
permits a trial court to admit the underlying facts or data on which an expert has
based an opinion. TEX. R. EVID. 705(a). Thus, when an expert relies upon hearsay
in formulating his opinion, and the hearsay evidence is of a type that is reasonably
relied upon by such experts, the jury is generally permitted to consider it. See, e.g.,
Barnes, 2018 WL 3861401, at *4; Sawyer, 2018 WL 3372924, at *5; Carr, 2015
WL 1611949, at *2. However, if the underlying facts or data would otherwise be
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inadmissible, the evidence should be excluded only if the probative value in assisting
the jury to evaluate the opinion is outweighed by its prejudicial effect. TEX. R.
EVID. 705(d). Moreover, the trial court may use a limiting instruction to ensure that
otherwise inadmissible evidence is not improperly considered by the jury. Id.;
Barnes, 2018 WL 3861401, at *4; Sawyer, 2018 WL 3372924, at *5.
The court in Barnes rejected the argument Stratton now advances, that the
State erroneously used its testifying expert (Dr. Dunham) as a conduit for the
admission of a non-testifying expert’s opinion (Dr. Woodrick). Barnes, 2018 WL
3861401, at *3. We also reject this argument. Notably, in Barnes, Dr. Dunham was
the State’s testifying expert and Dr. Woodrick was the initial evaluator. Id. at *5.
There, as in this case, Dr. Dunham testified that he relied upon the information and
data contained in Dr. Woodrick’s report. Id. Here, the trial court properly applied
Rule 705(d) and included a limiting instruction in the trial court’s charge which
advised the jury that its use and consideration of any hearsay evidence was restricted
solely for the purpose of showing the basis of Dr. Dunham’s reliance on such
evidence in formulating his opinions, and not for the truth of the matter asserted.
Absent contrary evidence in the record, of which there is none, we presume that the
jury followed the trial court’s limiting instruction. Id. (citing Mares, 521 S.W.3d at
70).
The State offered Dr. Woodrick’s opinion through Dr. Dunham for the sole
purpose of explaining the bases of Dr. Dunham’s expert opinions. Although Stratton
complains that the State improperly used Dr. Dunham’s testimony as a conduit to
present additional expert opinions, the Rules of Evidence clearly permit the
admission of Dr. Woodrick’s opinion for the purposes that were offered by the State.
Dr. Dunham testified that, in formulating his opinions, it is standard practice in these
types of cases to review and rely on the data and reports that have been prepared by
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previous evaluators. In this case, we find nothing in the record before us that
indicates Dr. Woodrick’s opinion was offered for the truth of the matter asserted or
that the jury refused to follow the trial court’s limiting instruction. Therefore, the
trial court did not abuse its discretion when it permitted Dr. Dunham to testify about
(1) the facts and data of Dr. Woodrick’s report, upon which he relied to formulate
his opinions, and (2) his ultimate opinion that Stratton suffers from a behavioral
abnormality. TEX. R. EVID. 703, 705; see Barnes, 2018 WL 3861401, at *4–6.
Further, even assuming arguendo that the trial court erred when it admitted
the objected-to evidence, any such error would be harmless. See Nissan Motor Co. v.
Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Based on the record before us, and
in light of Stratton’s prior convictions and Dr. Dunham’s testimony that Stratton
suffers from a behavioral abnormality that makes him likely to engage in predatory
acts of violence, Stratton has not demonstrated that the jury’s verdict turns on
this particular evidentiary issue. See Armstrong, 145 S.W.3d at 144; TEX. R.
APP. P. 44.1. Additionally, the trial court’s limiting instruction cured any potential
harm that the challenged testimony could have caused. See Mares, 521 S.W.3d at
71. Accordingly, we overrule Stratton’s third issue.
2. Legislative Findings
In his fourth issue, Stratton complains that the trial court abused its discretion
when it excluded relevant expert testimony from Dr. Mauro. The trial court
sustained the State’s objection to Dr. Mauro’s proposed testimony regarding the
legislative findings of the SVP Act, namely, the language regarding the “small but
extremely dangerous group” that is intended to be the subject of the SVP Act. See
HEALTH & SAFETY § 841.001. In an offer of proof, Dr. Mauro testified that she
considered the above language in formulating her opinions because it was the stated
purpose of the controlling law. Therefore, according to Dr. Mauro, she framed her
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evaluation based on whether Stratton fell into that specified “group,” although she
acknowledged that proving such membership was not a component of the State’s
burden of proof.
Contrary to Stratton’s argument, the supreme court has addressed the SVP
Act’s legislative-finding language and held that the “small but extremely dangerous
group” language relied on by Stratton is not part of or included in the statutory
definition of “sexually violent predator” and is not an element that the jury is
required to consider or find in determining whether the offender suffers from a
behavioral abnormality. See Stoddard, 619 S.W.3d at 677–78. The SVP Act sets
forth the requirements for the civil commitment of a limited subset of offenders:
those who commit “certain enumerated sexually violent offenses, are repeat
offenders, and suffer from a behavioral abnormality that makes them likely to
engage in a predatory act of sexual violence.” Id. at 678. In other words, “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.
We hold that the trial court did not abuse its discretion when it excluded
Dr. Mauro’s testimony regarding the legislative findings of the SVP Act because her
testimony was not relevant to any commitment element that the jury would have
been required to consider or determine. See TEX. R. EVID. 402 (“Irrelevant evidence
is not admissible.”). Accordingly, we overrule Stratton’s fourth issue.
3. Admissibility of Dr. Mauro’s Deposition Testimony
In his fifth issue, Stratton complains that the trial court erred when it excluded
a portion of Dr. Mauro’s deposition testimony under Rules of Evidence 106 and 107.
Conversely, the State contends that Stratton failed to preserve this issue for our
review.
25
During the State’s cross-examination of Dr. Mauro, the State sought to
impeach Dr. Mauro by introducing excerpts of her previous deposition testimony.
Stratton then made an offer of proof regarding an excerpt of Dr. Mauro’s deposition
testimony that was related to the specific excerpts that the State used to impeach her.
The excerpt that Stratton sought to introduce concerned Dr. Mauro’s statements, as
discussed above in Stratton’s fourth issue, that she relied on the SVP Act’s
legislative findings in formulating her opinion of whether Stratton has a behavioral
abnormality. On appeal, Stratton now contends that Dr. Mauro’s deposition
testimony regarding the SVP Act’s legislative findings is admissible under either
Rule 106 or Rule 107 and should not have been excluded.
Regardless of whether Stratton preserved this issue for our review, assuming
that the trial court erred when it excluded this evidence—and we do not hold that it
did—such error was harmless. First, even without her testimony regarding the SVP
Act’s legislative findings, Dr. Mauro was able to testify that, in her opinion, Stratton
did not have a behavioral abnormality; she also testified at length as to the facts and
data that she believed supported her opinion. See Bohannan, 388 S.W.3d at 305 (“In
SVP commitment proceedings, the only fact issue to be resolved by the trier-of-fact
is whether a person has the behavioral abnormality required for an SVP.”). Second,
the SVP Act’s legislative findings are neither applicable nor relevant to the jury’s
determination and verdict in this case because the findings are not included in the
statute’s pertinent definitions and are not a necessary statutory element to
establishing a basis for a civil commitment under the SVP Act, as we have discussed
above. Therefore, the trial court’s exclusion of Dr. Mauro’s testimony regarding the
SVP Act’s legislative findings was not an abuse of discretion. Accordingly, we
overrule Stratton’s fifth issue.
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IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
December 16, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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