                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00236-CV
                            ____________________


                IN RE COMMITMENT OF JASON DOCKERY

_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-10-10749 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Jason Dockery appeals from a jury verdict that resulted in his civil

commitment as a sexually violent predator. See Tex. Health & Safety Code Ann.

§§ 841.001-.151 (West 2010 & Supp. 2014). In three issues, Dockery challenges

the facial constitutionality of Chapter 841 of the Texas Health & Safety Code, the

trial court’s decision to admit evidence of a criminal offense that did not result in

his conviction, and the trial court’s decision to admit evidence relating to the

incidents that resulted in his prior criminal convictions for sexually violent crimes.



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We conclude the complaints Dockery raises are without merit; therefore, we affirm

the judgment and order of civil commitment.

                                    Background

      Dr. Sheri Gaines, a psychiatrist who, as an expert witness for the State,

testified at Dockery’s trial that he suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. In forming her opinion,

Dr. Gaines indicated that she considered and relied upon Dockery’s deposition as

well as Dockery’s records. The records Dr. Gaines reviewed included a

multidisciplinary team evaluation on Dockery that was prepared by a psychologist,

a report prepared by another psychologist who interviewed Dockery, Dockery’s

criminal records, various offense reports, various victim statements, Dockery’s

prison records, Dockery’s medical records, and Dockery’s disciplinary records.

During Dockery’s exam that he wanted permission to videotape, Dr. Gaines

indicated that she compared the information from his interview to the information

in his records.

      Dr. Gaines testified that in her opinion, Dockery has a behavioral

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

She indicated that her opinion is based on two risk factors that she concluded

Dockery possessed: sexual deviancy and an antisocial lifestyle. According to Dr.

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Gaines, those traits are highly correlated with the risk that he will offend again. Dr.

Gaines diagnosed Dockery as having an antisocial personality disorder, pedophilic

disorder, and exhibitionistic disorder. At trial, Dr. Gaines explained why

Dockery’s past history, which includes multiple convictions for crimes involving

sexual offenses, was significant to her conclusion that Dockery currently suffers

from a behavioral abnormality.

                                 Uncharged Offense

      In issue one, Dockery argues that the trial court should have excluded Dr.

Gaines’s testimony about an uncharged offense, which involved his sexual contact

with a three-year-old child. According to Dockery, the probative value of this

evidence was substantially outweighed by the undue prejudice he suffered because

the evidence was admitted. Dockery objected to the testimony when it was offered,

and he repeated his objection when the State asked Dockery about his allegation

that he had been accused of crimes that he did not commit.

      Rule 403 of the Texas Rules of Evidence authorizes courts to exclude

evidence that is unduly prejudicial. Tex. R. Evid. 403. The Rule provides: “The

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting

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cumulative evidence.” Tex. R. Evid. 403. In an SVP case, we have explained that

“[e]vidence is unfairly prejudicial when it has an undue tendency to suggest that a

decision be made on an improper basis, commonly, but not necessarily, an

emotional one.” In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex.

App.—Beaumont 2013, pet. denied). We have also indicated that the factors the

trial court should consider in deciding whether to exclude evidence about other

sexual offenses include: (1) the probative value of the evidence, (2) its potential to

impress the jury in some irrational way, (3) the time needed to develop the

evidence, and (4) the proponent’s need for the evidence. Id.

      In Dockery’s case, the testimony indicates that Dr. Gaines considered the

uncharged offense in forming her opinion that Dockery has a behavioral

abnormality. However, she also indicated that other information she had about

Dockery, unrelated to the alleged incident involving the three-year-old child,

would have caused her to conclude that Dockery has a pedophilic disorder.

According to Dockery, the evidence about the alleged offense with the three-year-

old child lacks probative value because Dr. Gaines would have concluded he is a

pedophile anyway.

      Nonetheless, the record shows that Dr. Gaines utilized the evidence in

forming her opinions. The alleged offense involving the three-year-old was not

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more sordid than the other offenses that resulted in Dockery’s convictions for

crimes involving sexual violence, and the record reflects that the State spent

minimal time in developing the evidence. See id. Dockery argues that the jury

might have been angered that he had not been punished for the incident with the

three-year-old child; however, the jury was also aware that Dockery spent fifteen

years in prison after being convicted of three sexually violent crimes. We conclude

that it is speculative whether the jury might have developed any significant animus

towards Dockery based on the testimony the trial court admitted about the incident

involving the three-year-old child, as Dockery did not completely escape

punishment for his history of sexual misconduct.

      We hold the trial court could reasonably conclude the evidence about the

incident with the three-year-old child had probative value because it provided

insight into how Dr. Gaines formed her opinions. Given the other evidence that

was admitted regarding Dockery’s other sexually violent offenses, together with

the minimal amount of time spent developing the testimony at issue, the trial court

could reasonably conclude that the evidence was not unduly prejudicial in the

context of the issues that the jury was asked to resolve at the conclusion of

Dockery’s trial. We hold the trial court did not abuse its discretion in admitting the

evidence at issue, and we overrule issue one.

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                Testimony Regarding Dockery’s Prior Convictions

      Dockery complains that the trial court erred in admitting testimony that

described what he did that led to his prior convictions of sexually violent crimes.

The testimony at issue, introduced through Dr. Gaines, was admitted by the trial

court for a limited purpose—to allow Dr. Gaines to explain the basis of her

opinion. Dockery objected to the testimony on the basis that its probative value

was outweighed by the danger the evidence would cause confusion and unfair

prejudice.

      In this case, Dr. Gaines stated that she follows the standard methodology in

conducting a behavioral abnormality evaluation, which includes conducting a face-

to-face psychiatric examination of the individual, as well as reviewing the

individual’s psychological reports, offense reports, any victim statements that

involved the individual’s crimes, prison records, medical records, and disciplinary

records. According to Dr. Gaines, experts in her field rely on these types of records

in forming opinions. Dr. Gaines explained that in a forensic setting, these types of

records are important because the individual has not voluntarily presented himself

for an evaluation, and the records often contain important information about events

that occurred long ago.




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      We have previously explained why evidence regarding the details of an

alleged sexually violent predator’s prior offenses has probative value to help the

jury understand the expert’s opinion in SVP cases. See generally In re Commitment

of Day, 342 S.W.3d 193, 198-99 (Tex. App.—Beaumont 2011, pet. denied)

(allowing the experts to explain the facts considered in reaching their opinions, and

to explain how those facts influenced the experts’ evaluations). During Dockery’s

trial, Dr. Gaines read the indictments associated with his prior crimes without

objection. Shortly after the information that was in the indictments was before the

jury, the trial court instructed the jury as follows:

      Hearsay is a statement other than the one made by the declarant while
      testifying at trial or hearing, offered to prove the truth of the matter
      asserted. Certain hearsay information which is contained in records
      reviewed by experts, that has been admitted or was admitted before
      you through an [] expert’s testimony. Such hearsay is admitted only
      for the purpose of showing the basis of the expert’s opinion, and
      cannot be considered as evidence to prove the truth of the matter
      asserted.

Dockery obtained a running objection to Dr. Gaines’s testimony based on his claim

that evidence addressing the details of his prior offenses would be prejudicial.

Dockery argues that the probative force of the evidence regarding the details of his

prior offenses does not make it more probable that he has a behavioral

abnormality, that the testimony was not relevant to Dr. Gaines’s opinion that he


                                            7
has a behavioral abnormality, and that the testimony did not assist the jury in

weighing any evidence.

      In our view, in the context of an SVP trial, the type of evidence at issue

generally has some probative value. The details revealed by the information about

Dockery’s prior offenses and the information that Dr. Gaines reviewed regarding

the incident with the three-year-old child all involved young children. In the

context of explaining how Dockery lacked control over his sexual behavior, the

details described by Dr. Gaines provided the jury with information regarding the

extreme nature of the conduct on which Dr. Gaines relied to form her opinion that

Dockery is unable to sufficiently control his sexual behavior. We disagree with

Dockery’s argument that the evidence has no probative force. For instance, Dr.

Gaines explained that violence together with sexual activity that involves young

children are risk factors that are used to assess the risk that an individual may

offend again, and these incidents influenced her opinion that Dockery has a sexual

abnormality. According to Dr. Gaines, one of the incidents involving one of the

children reflected conduct representative of Dockery’s exhibitionistic disorder, a

disorder that she stated Dockery continued to exhibit while in prison through the

date that his civil commitment process commenced. Dr. Gaines explained that the

combination of Dockery’s pedophilia and exhibitionistic behavior represent a

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heightened sexual deviance, which increases the risk that Dockery will offend

again.

         Dockery argues that because less inflammatory evidence was available, the

need for the testimony about the details of his offenses against children was

unnecessary for the jury to gain an understanding regarding the basis of Dr.

Gaines’s opinion. For instance, Dockery incurred over thirty prison disciplinary

actions while in prison for sexual conduct that shows he could not follow the

prison’s rules on such conduct. Dockery contends that these were all the State

needed to show that he had been involved in sexual acts that he committed when

others were present. These infractions, however, involved adult females, not

children. Given Dr. Gaines’s testimony associating the risk that Dockery will

offend again with his offenses involving children, it was reasonable for the trial

court to conclude that the testimony about the details of the incidents involving

children were more probative than prejudicial with respect to the issues involved in

Dockery’s case.

         Additionally, the details of the incidents at issue were not unduly prejudicial,

given that some of the details of the incidents that involved Dockery’s past conduct

with children were admitted into evidence without objection. We conclude the trial

court did not abuse its discretion by admitting Dr. Gaines’s testimony that

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addressed the details of Dockery’s sexual conduct with children. See Day, 342

S.W.3d at 198-99; see also Tex. R. Evid. 403, 705(d). We overrule issue two.

                         Constitutionality of Chapter 841

      In his third issue, Dockery argues that this Court’s decision in In re

Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852 (Tex. App.—

Beaumont June 26, 2014, pet. denied), cert. denied, 2015 WL 731079 (2015)

(mem. op.) renders Chapter 841 of the Texas Health and Safety Code facially

unconstitutional. We addressed and rejected this same argument in In re

Commitment of Lucero, No. 09-14-00157-CV, 2015 WL 474604, at *10 (Tex.

App.—Beaumont Feb. 5, 2015, pet. filed) (mem. op.). For the reasons discussed in

Lucero, we overrule Dockery’s third issue.

      Having overruled each of Dockery’s issues, the trial court’s judgment and

order of civil commitment are affirmed.

      AFFIRMED.


                                               ________________________________
                                                       HOLLIS HORTON
                                                            Justice


Submitted on January 12, 2015
Opinion Delivered May 7, 2015

Before Kreger, Horton, and Johnson, JJ.
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