In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00130-CV
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IN RE COMMITMENT OF GILBERT B. TOLBERT JR.
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On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 21-06-08819-CV
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MEMORANDUM OPINION
The State of Texas filed a petition to commit Gilbert B. Tolbert Jr. as a
sexually violent predator. See Tex. Health & Safety Code Ann. § 841.001–.153.
(SVP statute). A jury found that Tolbert is a sexually violent predator. The trial court
rendered a final judgment and order of civil commitment, and Tolbert appealed. In
two issues, Tolbert challenges the legal and factual sufficiency of the evidence
supporting the jury’s finding. As discussed below, we affirm the trial court’s
judgment and order of civil commitment.
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THE EVIDENCE
Dr. Sheri Gaines, a board-certified psychiatrist who has specialized training
in forensic psychiatry, testified that she evaluated Tolbert and relied upon principles
of psychiatry in doing so. Dr. Gaines explained that the standard methodology
involves face-to-face interviews, as well as reviewing police and prison records,
victim statements, and depositions. Dr. Gaines testified that she interviewed Tolbert
for approximately two hours, reviewed the records, and conducted a risk assessment.
Dr. Gaines opined that, based on her education, training, experience, and
methodology, Tolbert suffers from a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence.
Dr. Gaines explained that the facts and data surrounding Tolbert’s sexual
convictions and nonsexual criminal history constitute risk factors and helped her to
formulate her opinion about whether Tolbert is likely to reoffend. Dr. Gaines
testified that Tolbert’s first offense with an element of a sexual nature involved
forcing a victim in his car at gunpoint and telling the victim he was going to have
sex with her, and Tolbert admitted that he tried to force the victim to have sex. Dr.
Gaines testified that Tolbert was convicted of false imprisonment or terroristic
threat. Dr. Gaines testified that Tolbert was also convicted of rape and placed on
probation for ten years, and he claimed the encounter was consensual. Dr. Gaines
explained that while on probation, Tolbert was convicted of attempted sexual assault
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and burglary of a habitation with the intent to commit kidnapping, which involved a
sexual assault that was dismissed in a plea deal. Dr. Gaines testified that Tolbert
committed another sexual assault after he was released on parole. Dr. Gaines
explained that Tolbert is sexually deviant, and sexual deviance is a condition that
affects his emotional and volitional control and makes him a menace to society. Dr.
Gaines testified that other risk factors included that Tolbert has repeatedly engaged
in sexually deviant behavior, the fact that Tolbert reoffended while on probation and
parole, persistence after punishment, offending in public places, unrelated victims,
violence during a sexual offense, denial, lack of insight, lack of understanding, lack
of remorse, and use of substances during an offense.
Dr. Gaines diagnosed Tolbert with sexual sadism disorder and other specified
personality disorder with antisocial features. Dr. Gaines also testified that Tolbert
received approximately thirty disciplinaries for sexual offenses in prison, including
for public masturbation toward female correctional officers, which further evidenced
his sexual deviance and antisocial personality. Dr. Gaines explained that Tolbert has
not had sex offender treatment, and his denial of offending and lack of remorse and
responsibility elevates his risk for reoffending. Dr. Gaines testified the evidence
shows Tolbert has a congenital or acquired condition that has affected his emotional
or volitional capacity. Dr. Gaines identified positive factors that might decrease
Tolbert’s risk of reoffending, including his age, family support, education level,
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participation in prison programs, participation in a sex offender education program,
and employment history, but Dr. Gaines explained those factors do not change her
opinion that Tolbert suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence.
Tolbert testified that he is currently incarcerated for sexual assault and serving
sixty years. Tolbert testified that he committed his first sexual offense in 1982, and
he admitted that he had a gun and drove the victim out in the country against her will
and told her he wanted to have sex, but he claimed he did not plan on having sex
with the victim against her will. Tolbert explained the victim escaped and he was
only charged with a misdemeanor. Tolbert testified that in 1983 he was charged with
rape, and he pled guilty and was placed on probation but claimed it was consensual.
Tolbert further testified that while on probation he was charged with attempted
sexual assault and pled guilty, but he claimed the victim lied. Tolbert explained that
he was also charged with sexual assault while on probation, and he agreed that
records showed the charge was dropped because he was convicted of burglary with
intent to kidnap. Tolbert testified that after he got out of prison, he was charged with
committing another sexual assault while on parole and a jury found him guilty, but
Tolbert claimed the victim lied.
Tolbert admitted that while in prison, he had received over thirty disciplinary
cases that involved sexual misconduct. Tolbert testified that during his incarceration,
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he received disciplinary cases for masturbating in public. Tolbert testified that he
completed a sex offender education program, but he never participated in sex
offender treatment because he did not believe he was a sex offender or had any
mental health problems. Tolbert denied that he sexually victimized anyone, but he
also admitted to sexually assaulting one of his victims while on parole and claimed
he did not know he was sexually victimizing the victim.
ANALYSIS
In two appellate issues, Tolbert argues that the evidence is legally and
factually insufficient to support the jury’s finding that he has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Tolbert argued that Dr. Gaines’s opinion cannot support the verdict, because her
opinion is unreliable, conclusory, and speculative.
In an SVP civil commitment proceeding, the State bears the burden to prove
beyond a reasonable doubt that the respondent is a sexually violent predator. See
Tex. Health & Safety Code Ann. § 841.062; In re Commitment of Morales, 98
S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied). A person is a sexually
violent predator if the person “is a repeat sexually violent offender[] and []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). A behavioral
abnormality is “a congenital or acquired condition that, by affecting a person’s
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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).
Under a legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether a rational trier of fact could find,
beyond a reasonable doubt, the elements required for commitment under the SVP
statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont
2002, pet. denied). It is the factfinder’s responsibility to resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. See id. at 887. Under a factual sufficiency review, we weigh the
evidence to determine “whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011,
pet. denied).
To the extent Tolbert argues on appeal that Dr. Gaines’s methodology or
underlying data on which she relied is unreliable, Tolbert failed to properly preserve
these arguments. An objection to reliability must be timely made at trial. Tex. R.
App. P. 33.1(a)(1) (providing that to preserve error, a defendant’s challenge, whether
by request, objection, or motion must be timely); In re Commitment of Grunsfeld,
No. 09-09-00279-CV, 2011 WL 662923, at *6 (Tex. App.—Beaumont Feb. 24,
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2011, pet. denied) (mem. op.) (stating the defendant must timely object to the
reliability of an expert’s methodology). At trial, Tolbert did not challenge the
reliability of Dr. Gaines’s methodology or the underlying data on which she relied
at trial. In Tolbert’s motion for new trial, Tolbert alleged that the trial court erred by
allowing Dr. Gaines to testify regarding the likelihood about his risk to reoffend
because the SVP statute does not properly define the term “likely” and the term’s
meaning should be held as void and unconstitutional. Tolbert has not shown that he
challenged the reliability of Dr. Gaines’s testimony when a challenge could have
allowed the trial court to analyze the expert’s underlying methodology. See
Grunsfeld, 2011 WL 662923, at *6; In re Commitment of Hood, No. 09-16-00012-
CV, 2016 WL 4247961, at *4 (Tex. App.—Beaumont Aug. 11, 2016, no pet.) (mem.
op.).
Under Texas law, wholly conclusory and speculative opinion testimony does
not constitute legally sufficient evidence to support a verdict because such testimony
“does not tend to make the existence of a material fact ‘more or less probable.’” City
of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Coastal
Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)).
Therefore, “[b]are, baseless opinions will not support a judgment even if there is no
objection to their admission in evidence.” Id. Tolbert argues that Dr. Gaines reached
her opinions without data that supports her conclusions. Dr. Gaines testified she is
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board certified in and has specialized training in forensic psychiatry. In reaching her
conclusions, Dr. Gaines testified that she applied her training and experience related
to evaluating whether a person has a behavioral abnormality, as well as the
information she reviewed in Tolbert’s case in forming her opinions. The testimony
shows that Dr. Gaines interviewed Tolbert, reviewed records that are relevant to
Tolbert’s criminal history, and she reviewed the details of Tolbert’s offenses
involving sexually violent crimes. The records Dr. Gaines reviewed are the types of
records that experts in Dr. Gaines’s field rely on in forming opinions. Dr. Gaines
also explained that she performed her assessment of Tolbert in a manner that is
consistent with the methodology that experts in her field follow and the accepted
standards in the field of forensic psychiatry.
After Dr. Gaines explained her methodology and how she applied that
methodology to Tolbert, Gaines testified that in her professional opinion Tolbert has
a behavioral abnormality that makes Tolbert likely to engage in predatory acts of
sexual violence. The jury heard evidence of Tolbert’s risk factors, sexual offenses,
and diagnoses. The jury also heard Dr. Gaines’s testimony that Tolbert is sexually
deviant and that his sexual deviance affects his emotional and volitional control and
makes him a menace to society. The jury also considered Dr. Gaines’s testimony
that Tolbert continued to engage in sexual offenses while on probation and parole
and in prison and that his risk of reoffending was elevated due to his lack of remorse
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and responsibility and failure to participate in sex offender treatment. The jury also
heard Tolbert testify about his criminal history and considered his testimony that he
did not believe he had sexually victimized any of his victims or that he was a sex
offender.
We conclude that Dr. Gaines’s testimony was not baseless nor was it too
conclusory to support a finding that Tolbert suffers from a behavioral abnormality.
Viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found, beyond a reasonable doubt, that Tolbert is a sexually
violent predator, and the evidence is legally sufficient to support the jury’s finding.
See Tex. Health & Safety Code Ann. § 841.062(a); see also Kansas v. Crane, 534
U.S. 407, 412 (2002); Mullens, 92 S.W.3d at 885. Tolbert argues that portions of Dr.
Gaines’s testimony were misleading. However, it was up to the jury to decide these
issues as the sole judge of the weight and credibility of the evidence. See Mullens,
92 S.W.3d at 887. On this record, the evidence allowed the jury to draw reasonable
inferences from basic facts to determine ultimate issues. See In re Commitment of
Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *4(Tex. App.—Beaumont
Dec. 31, 2009, no pet.) (mem. op.) (citation omitted); see also Hood, 2016 WL
4247961, at *5. The jury may resolve conflicts and contradictions in the evidence by
believing all, part, or none of the testimony. Mullens, 92 S.W.3d at 887. We further
conclude that, as the sole judge of the credibility of the evidence, the jury could
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reasonably conclude that Tolbert suffers from a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. See In re Commitment of
Muzzy, No. 09-13-00496-CV, 2014 WL 1778254, at *3(Tex. App.—Beaumont May
1, 2014, pet. denied) (mem. op.); see also Mullens, 92 S.W.3d at 887; Hood, 2016
WL 4247961, at *5. Weighing all the evidence, we conclude the verdict does not
reflect a risk of injustice that compels ordering a new trial. See Day, 342 S.W.3d at
213. We overrule both issues raised by Tolbert, and we affirm the trial court’s
judgment and order to civil commitment.
AFFIRMED.
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W. SCOTT GOLEMON
Chief Justice
Submitted on December 27, 2022
Opinion Delivered February 16, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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