 
 




                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-12-00605-CV
                             ____________________


              IN RE COMMITMENT OF BEN B. MCCLELLAN

_______________________________________________________                ______________

                     On Appeal from the 435th District Court
                          Montgomery County, Texas
                        Trial Cause No. 12-03-03157 CV
________________________________________________________                _____________

                           MEMORANDUM OPINION

      Ben B. McClellan challenges his civil commitment as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2013) (the SVP statute). McClellan raises four issues in his appeal,

challenging the facial constitutionality of the SVP statute, the trial court’s failure to

strike the testimony of an expert witness, and the legal and factual sufficiency of

the evidence supporting the jury’s verdict. We conclude that McClellan’s issues do

not present reversible error, and we affirm the trial court’s judgment.



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                             Constitutional Challenge

      In issue one, McClellan contends the SVP statute, as interpreted by the

Texas Supreme Court in In re Commitment of Bohannan, is facially

unconstitutional and violates the due process clause of the Fourteenth Amendment.

388 S.W.3d 296, 302-03 (Tex. 2012), cert. denied, 133 S. Ct. 2746 (2013).

McClellan concedes this Court rejected this claim in another civil commitment

appeal. See In re Commitment of Anderson, 392 S.W.3d 878, 885-86 (Tex. App.—

Beaumont 2013, pet. denied). McClellan provides no argument or persuasive

authority for our consideration, but presents the claim “for the purpose of

preserving it for review by a higher court.” We overrule issue one.

                    Reliability of Expert Witness Testimony

      In issue two, McClellan argues that the opinion testimony of Dr. Lisa K.

Clayton, the State’s expert witness, was unreliable because it “showed her opinion

was baseless, or in the very least, significantly flawed, in that she could produce no

evidence her opinion was correct or founded upon acceptable standards or

methodology.” McClellan filed a pre-trial objection to the expert testimony of Dr.

Clayton, a psychiatrist. In his pre-trial objection, McClellan argued that Dr.

Clayton’s testimony “is not reliable because there is no statutory criteria requiring

specific methodology be used. The psychiatrist/clinicians rely on a hunch they

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refer to as ‘clinical judgment’ that has no established predictive accuracy. Thus, all

conclusions by the expert are unreliable.” The trial court overruled McClellan’s

written pre-trial objections before the State commenced its case-in-chief. After Dr.

Clayton testified, McClellan moved to strike her testimony, in part because Dr.

Clayton was “providing unreliable information[.]”

              McClellan argues Dr. Clayton’s opinion is unreliable because she did not

score any actuarial instruments in this case, but Dr. Clayton explained that

actuarials are more within the purview of psychologists rather than forensic

psychiatrists, such as herself. Also, McClellan argues that Dr. Clayton’s opinion is

unreliable because she did not independently verify the psychologist’s actuarials in

this case, but Dr. Clayton explained that she does not conduct an independent

verification of the records because forensic psychiatrists are trained to look at

records, and they are taught to assess and trust the validity of reasonable records.

McClellan has not shown that Dr. Clayton’s expert opinion as a psychiatrist is

unreliable because she considered the psychologist’s actuarial instruments.1

McClellan further argues Dr. Clayton’s evaluation and opinion were unreliable

because they were not sufficiently tied to objective, peer-reviewed, reliable, and

replicable scientific methods, studies, and research. In support of this argument,
                                                            
              1
        McClellan does not argue the psychologist scored the actuarial instruments
incorrectly.
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McClellan points to Dr. Clayton’s inability at trial to identify any literature

regarding denial as a factor in sex offender treatment, to cite to or describe any

actuarials or other methods used to measure empathy or denial, and to explain

whether the methodology she employed required a determination of rate of error.     

      However, when asked to describe her methodology, Dr. Clayton stated she

receives background information, including information about the offender’s

sexual and other criminal history, behavior in prison, education, and therapy. In

addition to reading the police reports, witness statements, and prison records, Dr.

Clayton reviews the multidisciplinary team’s report and the evaluation prepared by

a psychologist. After reviewing the information, she performs a face-to-face

forensic psychiatric clinical interview with the offender, and obtains the offender’s

view of his history and experiences. She performs a mental status examination of

the offender to assess how the offender thinks and responds to stimuli. Dr. Clayton

stated that this same methodology is followed by both State and defense experts in

Texas and elsewhere in the United States. Dr. Clayton followed this methodology

in McClellan’s case.

      Based on her education, training, experience, and methodology, Dr. Clayton

formed an opinion that McClellan suffers from a behavioral abnormality that

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

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the DSM-IV-TR2 diagnostic criteria for pedophilia includes: (1) recurrent, intense,

sexually-arousing fantasies, sexual urges, or behaviors involving sexual activity

with a prepubescent child over a period of at least six months; (2) the person has

acted on these sexual urges or they caused marked distress or interpersonal

difficulty; and (3) the person is at least sixteen years of age and older than, but not

close in age to, the child. As significant factors that formed the basis of the

diagnosis of pedophilia in McClellan’s case, Dr. Clayton identified McClellan’s

offenses against two female victims under the age of seven, including an offense in

1986 when at twenty-one years of age McClellan digitally penetrated the genitals

of a four-year-old. While McClellan confessed to the incident before he was

convicted, McClellan denied having committed the offense during his interview

with Dr. Clayton. The other offense occurred in 1997, when, at thirty-three years of

age and while on mandatory supervision, McClellan on several occasions digitally

penetrated the genitals of a six-year-old non-relative living in the same household.

Again, McClellan gave a contemporaneous confession, but denied the offense in

his interview with Dr. Clayton.

              Dr. Clayton explained that not all pedophiles have a behavioral abnormality

that makes them likely to reoffend, but in her opinion McClellan meets the criteria
                                                            
              2
       American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 572 (Text Revision, 4th ed. 2000) (DSM-IV-TR).
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because although he had received sex offender treatment, he still refused to admit

that he assaulted the children and that he had inappropriate deviant desires for

children. She also diagnosed McClellan with personality disorder NOS with

antisocial personality traits,3 which, she testified, means: (1) that numerous times

after reaching adulthood the person exhibits breaking the law, conning and

manipulating others; and (2) there is evidence of these behaviors before age

thirteen. That disorder related to his behavioral abnormality in that even after

receiving sex offender treatment, McClellan continued to deny and expressed no

guilt regarding his criminal behavior.

              Dr. Clayton employed a methodology held to be reliable in other civil

commitment cases tried under the SVP statute. See In re Commitment of Moss, No.

09-12-00599-CV, 2014 WL 580694, at **1-2 (Tex. App.—Beaumont Feb. 13,

2014, pet. denied) (mem. op.); In re Commitment of Polk, No. 09-10-00127-CV,

2011 WL 662928, at *8 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied) (mem.

op.); In re Commitment of Gollihar, 224 S.W.3d 843, 853 (Tex. App.—Beaumont

2007, no pet.). The record demonstrates that Dr. Clayton presented a professional

opinion that represents “a reasoned judgment based upon established research and

techniques for [her] profession and not the mere ipse dixit of a credentialed

                                                            
              3
                  See DSM-IV-TR at 701-06.
                                                               6
 
 
 




witness.” See In re Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—

Beaumont 2011, pet. denied). The trial court could have determined that Dr.

Clayton’s inability to cite actuarials used to measure empathy or denial or specific

literature on rate of error went to the weight of Dr. Clayton’s testimony, rather than

to its admissibility. See In re Commitment of Hill, No. 09-11-00593-CV, 2013 WL

772834, at *7 (Tex. App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.). The

trial court did not abuse its discretion in denying McClellan’s motion to strike Dr.

Clayton’s testimony. See In re Commitment of Cox, No. 09-13-00316-CV, 2014

WL 1400667, at *3 (Tex. App.—Beaumont Apr. 10, 2014, no pet. h.) (mem. op);

In re Commitment of Mitchell, No. 09-12-00607-CV, 2013 WL 5658425, at *2

(Tex. App.—Beaumont Oct. 17, 2013, pet. denied) (mem. op.). We overrule issue

two.

                            Sufficiency of the Evidence

       McClellan’s third and fourth issues challenge the legal and factual

sufficiency of the evidence to support the jury’s verdict that McClellan is a

sexually violent predator. In reviewing the evidence of legal sufficiency, we view

all of the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could find, beyond a reasonable doubt, the elements

required for civil commitment. In re Commitment of Mullens, 92 S.W.3d 881, 885

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(Tex. App.—Beaumont 2002, pet. denied). In reviewing evidence for factual

sufficiency, we weigh the evidence to determine whether a verdict supported by

legally sufficient evidence nevertheless reflects a risk of injustice so great that we

are compelled to grant a new trial. Day, 342 S.W.3d at 213.

      McClellan argues the evidence is insufficient because Dr. Clayton’s

testimony was unreliable. Because the record shows the trial court did not abuse its

discretion in refusing to strike Dr. Clayton’s testimony, the jury could consider her

opinions in reaching a verdict. Moss, 2014 WL 580694, at *3; In re Commitment of

Zamora, No. 09-06-504 CV, 2007 WL 2127080, at *4 (Tex. App.—Beaumont July

26, 2007, no pet.) (mem. op.). As the sole judge of the credibility of the witnesses

and the weight to be given their testimony, the jury could resolve conflicts and

contradictions in the evidence by believing all, part, or none of the witnesses’

testimony. Mullens, 92 S.W.3d at 887. Dr. Clayton relied on McClellan’s 1986 and

1997 sexually violent offenses which resulted in imprisonment, and on

McClellan’s criminal history which began when he was in his mid-teens, to

diagnose McClellan with pedophilia nonexclusive type and personality disorder

NOS with antisocial personality traits.

      According to Dr. Clayton, even with extensive sex offender treatment, it is

very difficult for pedophiles to control their acting-out sexual behavior because the

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sexual object does not go away. During his interview McClellan referred to his

victims as “little angels.” Dr. Clayton noted that McClellan’s mood and facial

expression indicated some presence of sexual attraction to prepubescent females

when he recalled his victims and when he stated that all girls are little angels. Dr.

Clayton indicated that McClellan’s denial of responsibility for his sexually violent

offenses and his lack of remorse prevented McClellan from progressing beyond the

first step in treatment. When the evidence is viewed in the light most favorable to

the verdict, the jury could rationally find beyond a reasonable doubt that McClellan

is a sexually violent predator.

      McClellan argues Dr. Clayton’s opinion testimony is factually insufficient

evidence because she did not utilize objective actuarial and medical tests in her

evaluation, which McClellan argues is based entirely on Dr. Clayton’s clinical

judgment. Dr. Clayton stated that she reviewed the records and evaluations in the

multidisciplinary team packet, including the notes of McClellan’s current sex

offender treatment provider. She reviewed two different Static-99 tests, a

MnSOST, a Psychopathy Checklist Revised, and a personality test. We conclude

that Dr. Clayton utilized objective information in forming her opinion, and the jury

could reasonably give weight to her opinions in reaching a verdict. On this record,

the evidence is legally sufficient and does not reflect a risk of injustice that would

                                          9
 
 
 




compel ordering a new trial. Day, 342 S.W.3d at 213. We hold the evidence is

legally and factually sufficient and overrule issues three and four.

      Having overruled all issues on appeal, we affirm the trial court’s judgment.

      AFFIRMED.



                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice


Submitted on December 2, 2013
Opinion Delivered June 12, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.




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