Opinion filed August 31, 2022
In The
Eleventh Court of Appeals
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No. 11-20-00253-CV
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IN RE COMMITMENT OF MARVIN GUNTER
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause No. 20087
MEMORAND UM OPI NI ON
This is an appeal from a civil commitment order in which the State sought to
commit Appellant, Marvin Gunter, for 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. ch. 841 (West
Supp. 2021). A jury found beyond a reasonable doubt that Appellant is a sexually
violent predator, and the trial court entered a final judgment and commitment order
committing Appellant for treatment and supervision. HEALTH & SAFETY § 841.081.
Appellant contends in two issues that the evidence is legally and factually
insufficient to support the jury’s sexually violent predator finding. We affirm.
Background Facts
On January 26, 2000, Appellant pleaded guilty to three offenses involving
sexual misconduct—indecency with a child by contact, sexual assault, and
aggravated sexual assault. The trial court assessed his punishment at confinement
for twenty years, twenty years, and forty years, respectively, in the Institutional
Division of the Texas Department of Criminal Justice. The trial court sentenced
Appellant accordingly, and the sentences ran concurrently.
Although all three convictions occurred on January 26, 2000, Appellant
committed the offenses in 1999, 1998, and 1996. Appellant’s offenses were against
three of his prepubescent children. He pleaded guilty to indecency with his son,
sexual assault of his youngest daughter, and aggravated sexual assault of his oldest
daughter.
Appellant testified at the commitment trial. He did not deny having sexual
contact with his female children, nor did he deny that he had been convicted of the
three sexually violent offenses. He denied indecency with his son, but agreed that
he had pled guilty to the charge of doing so. He testified that he knew what he was
doing was wrong but that he enjoyed it, and he stopped sexually assaulting his
children when they no longer came to his bedroom. He testified that he blames
himself for his crimes and feels ashamed and angry at himself for his actions.
He testified that he does not believe he has a continuing problem with “this
type of behavior” and that he is not at risk of reoffending. Appellant testified that he
is working to complete his sex offender treatment but has faced obstacles in
preparing for the commitment trial, which caused him to miss classes. He testified
that he is benefiting from the treatment program.
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Amy Morrison, the sex offender treatment program provider for the TDCJ
described Appellant’s progress in the program as “needs improving.” She further
described Appellant’s demeanor as moody, angry, argumentative, and lackadaisical,
and she stated that Appellant failed to participate in group discussions. Morrison
has issued two formal “disciplinary cases” to Appellant for violating group rules—
one for possession of pornography and another for absences. She has never needed
to grant an extension to other program participants. Morrison testified that Appellant
was unable to complete his treatment program in a timely fashion and was given a
sixty-day extension to do so. At the time of the hearing, Appellant was still enrolled
in the program. However, the program was temporarily discontinued due to the
COVID-19 pandemic.
Two experts testified at the commitment trial. The State’s expert, Dr. Sheri
Gaines, is a licensed medical doctor with a specialization in psychiatry. Dr. Gaines
is board certified by the American Board of Psychiatry and Neurology and has more
than thirty years of experience in forensic psychiatry. After detailing her experience
and training, Dr. Gaines opined that Appellant has a behavioral abnormality. To
reach this opinion, Dr. Gaines reviewed “a couple thousand or more” pages of
records and conducted a face-to-face interview with Appellant. The interview lasted
for two and a half hours, which Dr. Gaines testified was a normal length for a risk
assessment evaluation.
Dr. Gaines opined that Appellant has a behavioral abnormality because “he
meets the terms of the definition that comes from the statute, and because he has risk
factors that make him likely to repeat the acts for which he is convicted.” She
explained that a “risk factor” is “something that has been studied that has been
identified in literature as making something more likely to happen.” By contrast, a
“protective factor” is one that statistically reduces an individual’s risk of reoffending.
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Among the risk factors that Dr. Gaines identified were sexual deviancy in the
form of pedophilia. Dr. Gaines diagnosed Appellant with pedophilic disorder using
the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5).
Other risk factors include the different types of sexual acts and abuse on each victim;
the occurrence of acts over many years; psychopathic traits like lack of remorse,
lying, and manipulation; offending under the influence of drugs and alcohol; victim
blaming; and offending in a public place.
Dr. Gaines also identified some protective factors, including Appellant’s age
and his completion of his GED and other educational programs while in prison.
However, Dr. Gaines noted that Appellant’s age was not a completely protective
factor because Appellant’s original offenses occurred when he was in his forties and
the academic literature indicates that reoffending is less likely once a person reaches
the age of thirty. Thus, Appellant was offending at an age when the literature would
indicate he was less likely to offend.
Finally, Dr. Gaines noted that Appellant had not completed his treatment
program, did not have stable plans post-release, and intended to live with another
sex offender. In her opinion, Appellant’s pedophilic disorder combined with his risk
factors constituted a behavioral abnormality as defined in the Health and Safety
Code because it affected his emotional and volitional capacity.
Appellant’s expert, Dr. Stephen Thorne, Ph.D., is a licensed psychologist with
a practice in forensic psychology. He reviewed the same documents as Dr. Gaines,
scored a Static-99 actuarial and a PCLR, and conducted a two-hour interview with
Appellant. Like Dr. Gaines, Dr. Thorne diagnosed Appellant with pedophilic
disorder. He opined that Appellant does not meet the criteria for having a behavioral
abnormality that makes him likely to engage in an act of predatory violence.
He performed a Hare-PCLR on Appellant, an actuarial designed to identify
psychopathic traits in an individual. Appellant’s PCLR score was 23 out of 40,
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which Dr. Thorne said is “considered to be in the moderate range for psychopathy,
at the high end of the moderate range.” Dr. Thorne explained that, although
Appellant has some antisocial or psychopathic traits, he did not believe Appellant to
be a psychopath. In addition to the PCLR, Dr. Thorne scored a Static-99 on
Appellant, an actuarial instrument designed to identify traits connected to sexual
recidivism. Dr. Thorne scored Appellant as a “negative two,” which “is
characterized as being in the very low range.”
Dr. Thorne identified protective factors, which included Appellant’s age, his
single sentencing occasion, his lack of a mental illness diagnosis that would affect
his impulse control (i.e., schizophrenia or bipolar disorder), his ability to maintain
stable employment, and the fact that his offenses were limited to familial victims
rather than strangers. He also opined that the low score on the Static-99 was a
protective factor.
Dr. Thorne noted that most of the risk factors are included or accounted for in
the PCLR and Static-99 actuarial. However, the risk factors that he identified
included Appellant’s lack of social support, antisocial behavior, sexual deviancy in
the form of pedophilic disorder, and offending under the influence of alcohol. He
also opined that offending in a public place was a risk factor on some assessment
instruments, but he stated that Appellant’s offending in a public place did not sway
his ultimate opinion. Finally, Dr. Thorne testified that he was concerned that
Appellant had not completed his treatment program. He stated that if Appellant was
unsuccessful in completing the program, his “ultimate opinion in this case would
probably change.”
Analysis
Appellant raises two issues for our review: he challenges the legal and factual
sufficiency of the jury’s finding that he is a sexually violent predator. The SVP Act
provides for the civil commitment of sexually violent predators based on legislative
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findings that “a small but extremely dangerous group of sexually violent predators
exists and that those predators have a behavioral abnormality that is not amenable to
traditional mental illness treatment modalities and that makes the predators likely to
engage in repeated predatory acts of sexual violence.” HEALTH & SAFETY § 841.001.
A person is a sexually violent predator if the person “(1) is a repeat sexually
violent offender; and (2) suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” Id. § 841.003(a) (emphasis
added). The legislature defines a “repeat sexually violent offender” as a person who
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). “Sexually violent offense” is
defined in the SVP Act to include enumerated Penal Code offenses. Id.
§ 841.002(8).1 Finally, “behavioral abnormality” is defined as “a congenital or
acquired condition that, by affecting a person’s emotional or volitional capacity,
predisposes the person to commit a sexually violent offense, to the extent that the
person becomes a menace to the health and safety of another person.” Id.
§ 841.002(2).
A commitment proceeding under the SVP Act is a civil case that incorporates
the “beyond a reasonable doubt” burden of proof from criminal cases. In re
Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020); In re Commitment of
Stratton, 637 S.W.3d 870, 875 (Tex. App.—Eastland 2021, no pet.). Thus, to civilly
commit a person as a sexually violent predator, the State must prove the above
elements beyond a reasonable doubt.
Appellant’s underlying convictions are for indecency with a child by contact, sexual assault, and
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aggravated sexual assault; all of which are “sexually violent offenses” under the Health and Safety Code.
See HEALTH & SAFETY § 841.002(8); TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011, 22.021 (West
2019 & Supp. 2021).
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Directed Verdict
In his first issue, Appellant contends that the evidence is legally insufficient
to support the trial court’s finding that he is a “repeat sexually violent offender.”
We note that although raised as a legal sufficiency issue, the trial court granted
a directed verdict in favor of the State as to element one—finding that Appellant is
a repeat sexually violent offender—and Appellant’s argument under his first issue
addresses the trial court’s directed verdict. See HEALTH & SAFETY § 841.003(a). 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 proper 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.). In a civil commitment case, Texas courts 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 partial directed verdict that the defendant is a repeat
sexually violent offender is appropriate. See Stratton, 637 S.W.3d at 876–77
(collecting cases).
Here, the trial court’s grant of a partial directed verdict that Appellant is a
repeat sexually violent offender was proper because Appellant had been convicted
of three sexually violent offenses and sentences were imposed for all three. The
State introduced three judgments of conviction for sexually violent offenses.
Appellant conceded that he was convicted and sentenced for all three offenses. Thus,
the partial directed verdict in favor of the State was proper because Appellant is a
repeat sexually violent offender as a matter of law. Accordingly, we overrule
Appellant’s first issue.
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Factual Sufficiency
In Appellant’s second issue, he contends that there is factually insufficient
evidence to support the jury’s finding that he has a behavioral abnormality that
makes him likely to engage in predatory acts of sexual violence. We disagree.
The standard of review for a factual-sufficiency review 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 A.C.,
560 S.W.3d 624, 630 (Tex. 2018)). As with the legal sufficiency analysis, there is
still an assumption that the factfinder resolved disputed evidence in favor of the
finding if a reasonable factfinder could do so. Id. at 674. “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, “where the burden of proof is beyond a reasonable doubt, the
evidence is factually insufficient if, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the [sexually
violent predator] finding, along with the undisputed facts that do not support the
finding, is so significant that the factfinder could not have found beyond a reasonable
doubt that the statutory elements were met.” Id. at 674–75. A reviewing court’s
mere disagreement with the factfinder “as to the proper evidentiary weight and
credibility cannot be the basis of a reversal on factual-insufficiency grounds.” Id. at
677.
To support his contention, Appellant again directs us to his “single sentencing
occasion.” Appellant also contends that he has no serious psychological issues, has
a history of maintaining employment, and has only two incidents of misconduct
during his incarceration.
We first turn to evidence supporting the verdict. Both experts diagnosed
Appellant with pedophilic disorder and agreed on several risk factors present in
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Appellant’s case. The risk factors include sexual deviancy, offending in a public
place, offending while under the influence of drugs or alcohol, and antisocial
behaviors. Additionally, all the witnesses at trial testified that Appellant had not
successfully completed his sex offender treatment program. Finally, Dr. Gaines
opined that Appellant has a behavioral abnormality.
Contrary to the verdict, Dr. Thorne opined that Appellant does not have a
behavioral abnormality. Dr. Thorne testified that a strong factor to consider is
whether a person has reoffended after release. However, he recognized that because
these are Appellant’s first convictions, Appellant has never been released after a
conviction. Both experts recognized Appellant’s age as a protective factor, but only
Dr. Thorne recognized Appellant’s lack of additional psychological diagnoses as
protective. 2 Dr. Thorne also listed Appellant’s history of stable employment and his
lack of nonfamilial (stranger) victims as protective factors.
In light of the entire record, viewing the supporting and contrary evidence, we
hold that the jury could have determined, beyond a reasonable doubt, that Appellant
has a behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence and that Appellant is a sexually violent predator.
Within his second issue, Appellant also contends that the State failed to prove
that he falls in the “small but extremely dangerous group of sexually
violent predators” mentioned in the legislative findings of the SVP Act.
HEALTH & SAFETY § 841.001. However, the Texas Supreme Court rejected this
argument in Stoddard, finding that the language in the legislative findings is not an
element of the statute. 619 S.W.3d at 677 (“This ‘small but extremely dangerous
group’ language, contained in the Act’s legislative findings, is not part of the statute’s
2
Dr. Gaines testified that the absence of a risk factor is not a protective factor.
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definition of ‘sexually violent predator’ and was not an element the jury was required
to find.”).
Because the “small but extremely dangerous” language is not an element, and
because the evidence was such that the jury could have determined that
Appellant has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence, we overrule Appellant’s second issue. See
HEALTH & SAFETY § 841.001, .003(a)(2).
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
August 31, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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