                           NUMBER 13-17-00378-CV

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG



          IN RE COMMITMENT OF DONALD WAYNE HULL


                    On appeal from the 252nd District Court
                         of Jefferson County, Texas.


             DISSENTING MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
      Dissenting Memorandum Opinion by Justice Benavides

       I write separately to respectfully dissent to the majority’s conclusion that the trial

court’s error in admitting unreliable evidence constituted harmful error. Although I agree

with the majority that the trial court erred in admitting Dr. Turner’s testimony regarding the

travel card, for the reasons explained below, I would conclude that the trial court’s error

was not harmful.

                                I.     STANDARD OF REVIEW
      “To obtain reversal of a judgment based upon the improper admission of evidence,

an appellant must show that the trial court’s error was reasonably calculated to cause,

and probably did cause, the rendition of an improper judgment.” Bhatia v. Woodlands N.

Houston Heart Ctr., PLLC, 396 S.W.3d 658, 668 (Tex. App.—Houston [14th Dist.] 2013,

pet. denied) (citing TEX. R. APP. P. 44.1(a); Owens–Corning Fiberglas Corp. v. Malone,

972 S.W.2d 35, 43 (Tex.1998).)); see also Nissan Motor Co. v. Armstrong, 145 S.W.3d

131, 144 (Tex. 2004) (“Erroneous admission of evidence requires reversal only if the error

probably (though not necessarily) resulted in an improper judgment.”) (citing TEX. R. APP.

P. 61.1 (stating that no judgment may reversed on appeal due to trial court erred unless

the Texas Supreme Court concludes the complained-of error either “probably caused the

rendition of an improper judgment” or “ “probably prevented the petitioner from properly

presenting the case to the appellate courts”); City of Brownsville v. Alvarado, 897 S.W.2d

750, 753 (Tex. 1995)). The entire record must be reviewed to determine whether the trial

court’s erroneous admission of evidence was harmful. Kia Motors Corp. v. Ruiz, 432

S.W.3d 865, 883 (Tex. 2014). In determining harm, courts have “sometimes looked to

the efforts made by counsel to emphasize the erroneous evidence, and whether there

was contrary evidence that the improperly admitted evidence was calculated to

overcome.” Nissan Motor Co., 145 S.W.3d at 144. There is no precise test for harmless

error review; however, “[a] reviewing court must evaluate the whole case from voir dire to

closing argument, considering the ‘state of the evidence, the strength and weakness of

the case, and the verdict.’” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867,

871 (Tex. 2008). A reviewing court should not reverse for the erroneous admission of

evidence “unless the appellant can demonstrate that the judgment turns on the



                                               2
challenged evidence.” Bhatia, 396 S.W.3d at 668 (citing Interstate Northborough P’ship

v. State, 66 S.W.3d 213, 220 (Tex. 2001) (“Typically, a successful challenge to a trial

court’s evidentiary rulings requires the complaining party to demonstrate that the

judgment turns on the particular evidence excluded or admitted.”); see Kia Motors Corp.,

432 S.W.3d at 883 (citing Nissan Motor Co., 145 S.W.3d at 144) (“In analyzing whether

the trial court’s error was harmful, ‘[w]e review the entire record, and require the

complaining party to demonstrate that the judgment turns on the particular evidence

admitted.’”).

                                    II.   THE EVIDENCE

       Dr. Turner testified that when evaluating someone for a behavioral abnormality, he

looks for risk factors “because we want to see, does this person deviate from the, quote,

unquote, ‘average sex offender’ enough that they do exist in that small but dangerous

group” and that he believed Hull was a part of this “small but dangerous” group. Dr.

Turner found Hull to be a sexual deviant in the past because of Hull’s sexual interests

outside of two consenting adults as shown by his participation in the aggravated

kidnapping with intent to rape and his behavior in prison of threatening an inmate who

refused to engage in a sex act. Dr. Turner also concluded that Hull continues to be a

sexual deviant because of his pedophilia or sexual attraction to children, which according

to Dr. Turner, “doesn’t go away.”

       In addition, Dr. Turner diagnosed Hull with antisocial personality disorder pursuant

to the DSM-5 criteria, which is a lifelong condition. Dr. Turner stated, “the DSM-5 stands

for the Diagnostic and Statistical Manual” which outlines and lays out the criteria for all

mental illnesses.   Dr. Turner explained that people, such as Hull, with antisocial



                                                3
personality disorder do not care if they hurt others, do not care about the rules, and are

comfortable lying to and manipulating people. According to Dr. Turner, Hull exhibits “this

continued pattern of being in trouble, being punished for it and getting in trouble again.

And that’s what you see when you see someone with antisocial personality disorder.”

        1.        Hull Pleaded Guilty to Aggravated Kidnapping

        Dr. Turner testified that Hull told him about the aggravated kidnapping that

occurred when Hull was either nineteen or twenty years old. Hull told Dr. Turner that he

was with an accomplice, smoking marihuana, and driving around when the accomplice

jumped out of the car, grabbed a girl off her bicycle, and pulled her into the backseat. Hull

minimized his behavior by claiming that he drove away with the girl in the car because he

was afraid. Hull also claimed the girl testified on his behalf. 1

        Dr. Turner testified that Hull’s version of the events was not consistent with the

records he reviewed. 2 Dr. Turner challenged Hull’s statement of what occurred when the

men kidnapped the victim as being inconsistent with the records he reviewed, stating:

“We have transcripts from the trial where his co-defendant says what happened. We

have the victim who says what happened. All of which are fairly consistent with one

another. And then we have Mr. Hull’s statement that he’s just this innocent guy.”

        Dr. Turner stated, “The records indicate that [Hull] and his friend were driving [on

the day of the incident] and they decided that—I believe the quote used by the co-

defendant was they wanted to get some—and they used the ‘P’ word”; the men wanted



        1 The record from Hull’s aggravated kidnapping case was not presented to the jury. The trial court

did, however, admit a copy of the judgment convicting Hull of the offense, which documents that Hull
pleaded guilty to the offense pursuant to a plea agreement with the State.
        2   Hull does not complain of Dr. Turner’s reliance on those records on appeal.


                                                          4
to take a woman to a secluded area and “take turns raping her.” Dr. Turner testified that

the records showed that Hull and his co-defendant first tried to abduct a girl from Lamar

University; however, that girl was able to get away. Thus, according to Dr. Turner, Hull

and his co-defendant then drove to a residential area where Hull drove his vehicle around

a couple of girls riding their bikes and caused the vehicle to come to a screeching halt.

Hull’s co-defendant grabbed one of the girls off her bike, forced her into the backseat of

Hull’s car, and Hull drove away. The victim ultimately “was able to get out and open the

door” with help from “a gentleman that followed” Hull’s car. Dr. Turner testified that the

“gentleman” then either hit Hull “or tried to pull him out [of the car] or something like that;

but that’s when the girl was able to get out of the car, was thrown out of the car.” Thus,

Dr. Turner’s testimony based on the criminal record completely contradicted Hull’s version

of what occurred. Moreover, although Hull claims he helped the girl, he did not remain at

the scene of the crime and instead drove back to his girlfriend’s house where he cleaned

the car.

       The State asked Dr. Turner how these inconsistencies factor into his opinion. Dr.

Turner responded, “So, you know . . . we’re seeing . . . denial. We’re not seeing any

remorse. We’re not seeing any empathy for the victim or for the teenage girl that she was

with that was scared and rode off. So, it’s pretty significant.”

       Although Hull had not touched the victim himself prior to her escape, Dr. Turner

considered Hull’s participation as showing his sexual deviancy “[b]ecause of the intent,

the kidnapping the woman off of her bicycle. The sexual assault had already begun in

the backseat,” “the accomplice had begun removing the victim’s clothes,” and “per his

accomplice,” their intent was to take turns raping the victim “had they not been caught.”



                                                  5
       2.      Hull’s Sexual Misconduct While Incarcerated

       Next, Dr. Turner testified about the four disciplinary infractions Hull received while

he was in prison for the aggravated kidnapping from 1976 until 1984.                 Dr. Turner

explained that infractions occur when prisoners break the rules and they “get written up”

with penalties. First, according to Dr. Turner, “[i]n 1978 [Hull] received a disciplinary

infraction for suggesting to an inmate that they go somewhere privately for sex. The

inmate refused; and [Hull] said, Well, what if I just take it?” Then, “[i]n 1980, [Hull] received

a disciplinary infraction for receiving oral sex from another inmate”; “in 1981, he was

soliciting sex from another inmate for physical protection from other inmates”; and there

was another incident that was ultimately found to be consensual sex between Hull and

some other inmates. Hull testified that he was “written up for inciting sex malpractice by

threat” for the 1981 incident and was placed on administrative segregation. Dr. Turner

stated that Hull claimed he “had no memory” of those incidents. Dr. Turner explained that

his assessment considered these infractions because breaking the rules in prison

involving sexual behavior and “threatening another inmate or inmates for sex is very

important when we’re talking about something like a behavioral abnormality, which is a

condition that affects their ability to control their behavior.”

       3.      Hull’s Large Victim Pool

       Dr. Turner stated that “the victim pool” of an offender can be “rather clear and

isolated”; for example if “[t]hey’re attracted to female children . . . that’s who they offend

against.”   However, Hull “has offended against multiple female children, he’s also

offended against an adult female [when he committed the aggravated kidnapping], and

then now we have evidence of offenses against adult males,” making Hull’s victim pool



                                                   6
“quite large.” The State asked why Dr. Turner would consider the consensual prison

sexual infractions as part of his analysis, and Dr. Turner said, “Well, if—if an inmate has

sex with another inmate, it’s against the rules. So, it’s an indication of an inability or an

unwillingness to follow the rules. But most importantly, in these disciplinary infractions is

this [n]otion that he was making threats and he was forcing himself on other inmates.”

       4.     Dr. Turner’s Diagnosis of Pedophilic Disorder

       According to Dr. Turner, Hull continued to engage in sexually deviant behavior

after he was released from prison by sexually abusing a twelve-year-old girl and eleven-

year-old girl. Dr. Turner testified that, when he interviewed Hull about the children, Hull

“denied offending against them, and he said that they were very starved for affection from

their caregiver; so, he would hug them a lot . . . .” Dr. Turner stated Hull has provided

inconsistent statements about his relationship with the children in that he told Dr. Turner

that the children referred to him as “grandpa,” but when the State asked him, “he denied

telling [Dr. Turner] that the children called him ‘grandpa.’” Dr. Turner opined that when a

person is telling different people a different story, “it starts to provide further evidence that

they are being untruthful; I think that Mr. Hull is untruthful to the extent that he has

problems remembering who he said what to at what time . . . .”

       The twelve-year-old child claimed Hull touched her vagina underneath her

underwear, and she reported the incident immediately. According to Dr. Turner, Hull

denied any contact with the twelve-year-old girl. After the twelve-year-old reported that

incident, the eleven-year-old child reported that Hull had been sexually abusing her by

“rubbing her breast, rubbing her vagina, exposing his penis, asking her if she liked it—as

well as offering her money or ice cream or pickles and things like that.” However,



                                                   7
according to Dr. Turner, Hull claimed that when the eleven-year-old girl came to his

house, “he slipped on some water . . . . he reached out to stop himself; and that’s when

he accidently touched her vagina.” Dr. Turner opined that Hull’s continued and repeated

denial of committing the offenses is “very, very important” because “that really, really is

going to impact his ability to progress in treatment. It’s evidence of lack of remorse; and

so, it’s problematic for a variety of reasons.” Hull pleaded “guilty” to two counts of

indecency with a child as a repeat felony offender, and the trial court sentenced him to

twenty-five years’ confinement despite Hull’s claim now that he slipped on water in his

home and to break his fall grabbed the child’s waist and did not intentionally touch her

vagina. 3

        Dr. Turner opined that Hull’s actions indicate “a pattern of sexual attraction to

children” that “occurred over a period of at least six months with two victims” that “leads

us to a whole new realm of sexual deviance in terms of pedophilia.” Dr. Turner stated

that Hull’s behavior of threatening to kill the victims’ families showed Hull’s “antisociality,”

“is evidence of poor behavioral control, evidence of some anger issues . . . [and] evidence

of generally poor decision making . . . .” Dr. Turner said, “[S]o, here’s another instance

where he’s, you know threatening people.”

        The State displayed the diagnostic criteria for pedophilic disorder for the jury, and

Dr. Turner explained that the diagnosis “comes from the DSM-5.” Dr. Turner explained

that the criteria for pedophilic disorder are as follows: (1) having a sexual attraction to

prepubescent children over a period of six months; (2) which causes the person “a great



       3 During his testimony, Hull denied being alone with the eleven-year-old child and denied that he

touched her inappropriately. Again, however, Hull pleaded “guilty” to that offense.


                                                       8
amount of interpersonal distress or it causes problems in their life because they’ve acted

out on it”; and (3) there is a significant age difference. Dr. Turner testified Hull met each

criterion for pedophilic disorder because the court documents establish that Hull sexually

assaulted a child under thirteen years of age for a period of at least six months, he was

incarcerated for sexually assaulting two children causing him a great amount of

interpersonal distress, and he was forty-four and forty-five when he committed the

offenses against an eleven-year-old child and a twelve-year-old child constituting a

significant age difference between Hull and the children. Dr. Turner opined that Hull’s

disorder is a chronic condition in that “[a] pedophilia is not something that happens for six

months and then goes away. If it’s happening over a period of time and it’s meeting the

criteria for a pedophilic disorder, then it’s going to be a chronic condition.”

       Dr. Turner opined that Hull’s sexual deviance is more extensive than just the

pedophilic disorder diagnosis because “there is extensive evidence of him forcing himself

on people sexually based on the other offenses . . . [t]hat sort of gets into the area of

possibly some sadistic urges, which is gaining pleasure from hurting the other person or

forcing or humiliation of causing pain.” However, Dr. Turner did not diagnose Hull with

sadism. Still, he opined that “there is more to his overall picture of sexual deviance than

the pedophilic disorder” because “he has been willing to violate others, to violate adults,

to violate women, to violate men and threaten them for his own sexual gratification.”

       5.     The Diagnostic Tests

       In his evaluation of Hull, Dr. Turner used the PCL-R diagnostic test to determine

whether Hull is a psychopath. The total possible score is forty, which Dr. Turner explained

“would be like the Ted Bundys of the world.” The test requires the tester to score the test



                                                  9
taker “on 20 items that have been shown through research to be present in people with

this personality construct.”    Dr. Turner testified that the statute allowing for civil

commitment “indicates you have to assess for psychopathy.” Dr. Turner explained that

although the PCL-R was not designed to predict whether a person would re-offend, “lo

and behold, it turns out that people that have a high degree of psychopathy are also at a

high risk to re-offend sexually if they have prior sex offenses. So, it’s turned out to be a

good and solid risk assessment tool . . . .” Dr. Turner’s score of Hull was twenty-nine,

which “means that out of 40 possible points, [Hull] has 29 points that would be evidence

of psychopathic personality construct.” Dr. Turner explained that research indicates that

“the most predictive part of the PCL-R in terms of predicting risks” consists of five of the

PCL-R items. The combined maximum score of these five items is ten, and Hull scored

a nine out of ten on them.

       Dr. Turner opined that “what we have here is the very definition of a behavioral

abnormality . . . we have someone that has some condition that makes him likely to

engage in acts of sexual violence.” Dr. Turner believed Hull is a menace to the health

and safety of another person “[b]ecause . . . he still has sexual deviant interests,” he is

“still antisocial,” “and essentially, his entire life all he’s done is commit sex offenses, be

punished and commit more sex offenses.” Dr. Turner opined that aggravated kidnapping

as committed by Hull and indecency with a child are predatory acts of sexual violence.

       Moreover, Dr. Mauro testified that, although she disagreed with Dr. Turner’s

diagnosis of antisocial personality disorder, she did not believe it was unreasonable for

Dr. Turner to make that diagnosis. And when asked by the State if it was unreasonable

for “a mental health professional to have found Mr. Hull to have both pedophilic disorder



                                                 10
and antisocial personality disorder,” Dr. Mauro said, “No. It’s not unreasonable.” Dr.

Mauro also stated that she employed the same or similar methodology used by Dr.

Turner; she believed she reviewed the same information, including the records of Hull’s

past offenses; and she agreed with the State that Hull is a sexual recidivist. Dr. Mauro

said, “Well, [Hull] shouldn’t be alone [around] any children.”

                                    III.   DISCUSSION

       Here, Dr. Turner, as set out above, did not rely solely on the travel card to form his

opinion that Hull suffers from a behavioral abnormality. Dr. Turner relied on, among other

things, details of Hull’s other sexual crimes, details of Hull’s behavior in prison, Hull’s

pattern of denying and minimizing his participation in the offenses, Hull’s lack of remorse,

and his assessment of Hull’s psychological tests—none of which Hull challenges on

appeal as causing an erroneous judgment. Dr. Turner also relied on his interview with

Hull. Thus, the jury heard extensive evidence, aside from the travel card, supporting its

finding that Hull suffers from a behavioral abnormality as further explained below.

       Dr. Turner explained that to evaluate a person as having a behavioral abnormality,

he uses the definitions as set out in the statute. He stated that he looks “at risk factors

that have been supported and researched to increase someone’s likelihood of offending”

and examines the individual’s “current attitude about [his] offenses and offense history

and attitude about sex and sex offending in general.” Dr. Turner stated that having risk

factors such as sexual deviance and antisocial personality disorder “raises a person’s risk

of re-offending” based on published research that has “been reviewed by other experts

and found to be sound and reliable.”

       Dr. Turner agreed with the State that the details of Hull’s sexual offenses are



                                                11
significant in determining whether he suffers from a behavioral abnormality. Dr. Turner

conceded that there are no details available concerning the sexual offense mentioned in

the travel card and testified that although he relied on the travel card to show that Hull

committed a prior sexual offense, he did so merely as evidence of Hull’s willingness to re-

offend to satisfy his own sexual urges. However, the jury heard detailed evidence that

Hull committed aggravated kidnapping, went to prison, threatened another inmate for sex,

was released, and re-offended two times against two child victims. Thus, there is other

evidence showing Hull’s willingness to re-offend for his own sexual urges even

discounting the travel card.

       Considering Hull’s admitted sexual assaults of two children, Dr. Turner opined that

Hull is a sexual deviant because of his sexual attraction to children which “doesn’t go

away.” Dr. Turner stated that Hull met each criterion from the DSM-5 for pedophilic

disorder, which is a chronic condition. Dr. Turner also based his opinion that Hull is a

sexual deviant on Hull’s pleading guilty to and thus admitting that he committed the

offense of aggravated kidnapping of a girl with the intent to rape her. In addition, Dr.

Turner testified that Hull’s attitude toward women now, his lack of remorse and empathy

for his victims, and his denial of his offending even while pleading guilty is evidence of

Hull’s “continuing deviance.” Dr. Turner stated that Hull told him that “all women are

prostitutes because you pay for” the “‘P’ word.” Dr. Turner considered Hull’s statement

inappropriate, especially because he made the comment to Dr. Turner during his risk

assessment of Hull. Although Dr. Mauro disagreed with Dr. Turner’s diagnosis, the jury

was free to believe Dr. Turner.

       In addition, after performing psychological tests, Dr. Turner diagnosed Hull as



                                               12
having antisocial personality disorder/antisociality pursuant to the DSM-5 criteria. Dr.

Turner explained that “[a]n antisocial personality disorder is a personality construct that

is characterized by someone who is out for themselves, who is very entitled—I want what

I want,” and a person with antisocial personality disorder does not “care” about the rules

or if he hurts other people. According to Dr. Tuner, such a person lacks empathy and is

comfortable lying, manipulating other people, conning, and rule breaking. Dr. Turner

stated that he sees evidence that Hull has antisocial personality disorder because Hull

has a willingness to victimize other people for his own sexual gratification, he is not

remorseful, and does not admit his offenses. Dr. Turner gave Hull a score of “2” on the

Static-99R test, and Dr. Mauro gave Hull a “1.” Dr. Turner testified that he would conclude

that Hull suffers from a behavioral abnormality even with a score of “1.”

        Next, when Dr. Turner administered the PCL-R, Hull scored a twenty-nine, while

Dr. Mauro scored Hull with a twenty-three. According to Dr. Turner, the threshold score

to qualify as a psychopath is twenty-five, and Hull’s average score on the PCL-R

performed by Dr. Turner and Dr. Mauro is twenty-six. 4 Dr. Turner testified that the term

“behavioral abnormality” “is not a mental health term” and is instead “a legal term, just

like insane is a legal term but it has a mental health connotation.” Dr. Turner explained

that the statute states “very clearly” that “a diagnosis of a mental illness is not a behavioral

abnormality.” Dr. Turner testified that the statute instead requires a determination of

whether the individuals have “some kind of condition that impairs their ability to control

themselves and makes them likely to commit another sex offense.”


        4  Dr. Mauro testified that to qualify as a psychopath, a person must score a thirty on the PCL-R.
However, Dr. Mauro found that Hull has some traits associated with psychopathy and stated that she found
that Hull had mixed psychopathic traits.


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        Moreover, Dr. Turner stated that he gave Hull a “2” on the question regarding “poor

behavioral controls” because of Hull’s juvenile offense as set out in the travel card, as

well as Hull’s juvenile street fights, his suspension from school on multiple occasions, and

his continuous rule breaking, which has continued. Thus, although Dr. Turner listed the

juvenile rape offense as one of his reasons for giving Hull a “2” for “poor behavioral

controls,” Dr. Turner had other justifications for providing that score. Assuming for sake

of argument that Dr. Turner should have given Hull a score of “0” for “poor behavioral

controls,” Dr. Turner’s score of the PCL-R would have still been twenty-seven, and the

average of Dr. Mauro’s score and Dr. Turner’s score would have been twenty-five. In

addition, according to Dr. Mauro, in a third PCL-R test, administered by a risk evaluator

employed by TDCJ, Hull scored a twenty-six.

        Nonetheless, as previously stated, Dr. Turner also diagnosed Hull with sexual

deviance and antisocial personality disorder, which Dr. Turner explained were

problematic risk factors. Dr. Turner could not have relied on Hull’s juvenile offense as

stated by the travel card when he made those diagnoses because the travel card did not

contain any details concerning that offense. 5 Moreover, Dr. Turner testified that Hull is

currently a sexual deviant, a diagnosis which does not depend on Hull’s juvenile record.

        Dr. Turner opined that “[i]t’s extremely problematic” if a person has antisocial

personality disorder and is also a sexual deviant because

        [i]f someone has a sexual deviant interest, some attraction to something
        that is not consenting—another consenting adult, that’s a problem. If they

        5  On cross-examination by Hull’s trial counsel, Dr. Turner explained that to diagnose a person with
antisocial personality disorder, there must be evidence of the disorder before the age of fifteen. Dr. Turner
testified that in Hull’s case, “there were several instances of arrests noted as a juvenile with periods . . . of
supervised release that he violated” and “[t]here was a history of suspensions from school and a history of
fighting.” Dr. Turner did not mention that he relied on the travel card or the juvenile rape when he made
this determination.


                                                           14
       have antisociality to a high degree, they are willing to victimize other people.
       They are willing to break the rules. They can do it without feeling any
       remorse. They can go through life and not admit it to themselves and make
       a statement like he made at his deposition, “I have a clear conscience.”
       That’s a problem.

               If they exist alone, sometimes people with sexually deviant interests
       don’t have enough antisociality to act on those interests. They couldn’t see
       themselves hurting someone else. They couldn’t live with themselves for
       that. So, maybe they seek treatment for it or maybe they keep it a secret or
       maybe they join a . . . [special] community where it’s a consensual thing
       with safe words and so on and so forth. If someone is antisocial and they
       are willing to victimize other people and they are willing to lie and manipulate
       and there’s no sexual deviance, then we see them at a risk for joining politics
       or you know, other things likes [sic] that, white collar crime, so to speak
       Bernie Madoff. But there’s no indication that they’re going to act out
       sexually.

Dr. Turner concluded that in this case Hull’s sexual deviance is fueled by his antisocial

personality, which increases his risk level. On cross-examination by the State, Dr. Mauro

agreed that if a person is diagnosed with antisocial personality disorder and sexual

deviance, then that person has a greater risk to reoffend.

       Dr. Turner considered Hull’s admitted aggravated kidnapping as showing that Hull

has a higher risk to re-offend and is a sexual deviant due to his participation in kidnapping

a stranger with the intent to rape her. Dr. Turner also considered Hull’s threat to kill the

children’s families after the children made their outcries about Hull’s sexual abuse as

indicative of Hull’s antisociality—one of the two risk factors Dr. Turner believed shows

that Hull is willing to victimize other people. In addition, Dr. Turner considered Hull’s

admitted behavior in prison where he threatened another inmate with violence for refusing

to perform a sex act as showing that Hull was willing to break the rules in prison, which

according to Dr. Turner indicates Hull has an antisocial personality disorder. Dr. Turner

also considered Hull’s nonsexual juvenile arrests where Hull was “placed on supervised



                                                 15
release and violated it.” Dr. Turner specifically clarified that he was speaking of Hull’s

nonsexual juvenile record, which is not listed on the travel card. He stated that “this

continued pattern of being in trouble, being punished for it and getting in trouble again”

shows “someone with antisocial personality disorder.” The same can be said for Hull’s

adult behavior in prison, in committing aggravated kidnapping, and then reoffending by

committing sexual assault of two children.

       Dr. Turner did not rely on the travel card in his assessment of Hull when he made

the above-stated determinations. Dr. Turner concluded that Hull is a sexual deviant due

to his opinion that Hull has a pedophilic disorder, Hull’s participation in the aggravated

kidnapping with the intent to rape, and Hull’s threatening an inmate to perform a sex act.

Dr. Turner testified that he found Hull’s juvenile record as gleaned from the travel card as

merely “more evidence” of Hull’s sexual deviance and antisociality. In other words,

discounting the travel card, Dr. Turner found substantial other evidence supporting his

conclusion that Hull is a sexual deviant and has antisocial personality disorder, which are,

according to Dr. Turner, two risk factors of reoffending, and the travel card merely adds

to that evidence. In addition, the State asked Dr. Mauro if she agreed “that Hull’s sexual

offenses are sexually deviant,” and she replied that she prefers to “avoid that term in

explaining behavior. But they [Hull’s crimes] are considered sexually deviant under the

law and clinically.” Dr. Mauro also acknowledged Hull’s juvenile delinquency in the PCL-

R by giving Hull a “2,” which means that the trait is there.

       In his determination that Hull suffers from a behavioral abnormality, Dr. Turner

placed some emphasis on Hull’s denial of his offenses. For example, Hull’s testimony

that he drove away when his co-defendant grabbed a stranger off her bike because he



                                                16
was scared is dubious and was discredited by Dr. Turner’s testimony, Hull’s behavior after

the girl escaped, and his own decision to plead guilty to that crime. Dr. Turner found

Hull’s denial of his participation in the aggravated kidnapping and lack of remorse as

“pretty significant.” Hull now claims that he was trying to help the victim during the

aggravated kidnapping, but Hull pleaded “guilty” to the offense and there is evidence that

the men intended to take turns raping the girl. See TEX. HEALTH & SAFETY CODE ANN. §

841.002(8) (defining sexually violent offenses as including aggravated kidnapping if the

person intended to abuse or violate the victim sexually). 6 Although the majority notes that

“Hull denied committing any sexual misconduct in prison,” Hull testified that he pleaded

guilty to threatening another inmate for refusing to perform a sex act and spent some time

in administrative segregation.

        Hull also denied that he sexually assaulted the two children; however, again, Hull

pleaded guilty to both counts, and Hull admitted to Dr. Turner that he touched the eleven-

year-old child’s vagina. Hull’s slip-and-fall explanation of why he touched the child’s

vagina is farfetched. Dr. Turner stated that Hull’s continued denial of his offenses is

evidence of his lack of remorse and is “problematic for a variety of reasons.” Dr. Mauro

acknowledged that Hull’s version of the sexual assault of a child offenses “certainly differs

significantly from the allegations made by the children, as well as the actual convictions.”

        Dr. Turner explained that Hull’s substance abuse factored into his opinion that Hull

suffers from a behavioral abnormality because “[i]t speaks to antisociality. It speaks to a

willingness to ignore the rules and not obey the rules. It can also speak to . . . behavioral



         6 Hull does not argue on appeal that the aggravated kidnapping offense should not be considered

in Dr. Turner’s analysis.


                                                      17
control problems, impulse control problems.” Dr. Turner would still consider Hull as

having a behavioral abnormality even if he never uses drugs or alcohol again.

        Thus, the jury heard evidence that Hull had a behavioral abnormality based not

only on the offenses he committed but also on his behavior in prison and Hull’s answers

to psychological tests. The jury also heard evidence from Dr. Mauro that the travel card

was unreliable because it did not include any information regarding who wrote it and it

had no details about Hull’s juvenile offense. In addition, Dr. Mauro told the jury that she

considered the juvenile offense in her evaluation of Hull, and she believed he did not

suffer from a behavioral abnormality. Therefore, I do not believe that the jury relied solely

on the travel card in finding that Hull suffers from a behavioral abnormality. To the

contrary, the jury’s finding was based on the totality of Hull’s criminal history and on his

own admissions—not on one event noted in the travel card that contained no details. I

also disagree with the majority’s conclusion that “the repeated references to Hull having

allegedly raped a fifteen-year-old girl must have necessarily impacted the jury’s

reconciliation of the conflicting testimony.”

        Moreover, Dr. Turner testified that even “set[ting] aside” Hull’s juvenile offense

which was documented on the travel card, he would still have concluded that Hull suffers

from a behavioral abnormality based on Hull’s other prior offenses and behavior. 7 See

U-Haul Int’l, Inc., 380 S.W.3d at 132 (“Even if the trial court abused its discretion in

admitting certain evidence, reversal is only appropriate if the error was harmful, i.e., it




        7  In addition, Dr. Mauro testified that even taking the alleged juvenile offense as documented on
the travel card into account along with Hull’s other offenses, she does not believe Hull has a behavioral
abnormality. Dr. Mauro said that she “considered that some type of sexual offense happened in his juvenile
history,” but she “did not know the details of that [offense].”


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probably resulted in an improper judgment.”); Nissan Motor Co., 145 S.W.3d at 144; see

also TEX. R. APP. P. 44.1. Dr. Turner provided extensive expert testimony regarding Hull’s

psychological disorders including his pedophilic disorder, antisocial personality disorder,

and psychopathy.

       Although, as the majority points out the State and Dr. Turner referenced the travel

card on several occasions, Dr. Turner did not rely solely on the travel card to make his

determination that Hull suffers from a behavioral abnormality. In fact, Dr. Turner testified

that he even if he “set aside” the travel card, he would have concluded that Hull suffers

from a behavioral abnormality. Therefore, I believe that the travel card did not sway the

jury to decide that Hull has a behavioral abnormality given the other significant evidence

presented of Hull’s psychological disorders and admitted sexual crimes. The allegations

contained in the travel card are vague and insignificant compared to the overwhelming

evidence regarding Hull’s additional offenses of aggravated kidnapping and indecency

with a child. Moreover, there is nothing in the record showing that the State offered Dr.

Turner’s testimony regarding Hull’s juvenile offense as set out in the travel card to

overcome contrary evidence presented by Hull. Instead, Dr. Turner testified that he relied

on the alleged juvenile crime to determine whether Hull had a behavioral abnormality and

stated that even setting aside that crime, he still believed Hull suffers from a behavioral

abnormality.

                                   IV.     CONCLUSION

       Accordingly, I do not agree with the majority that Hull has demonstrated that the

judgment turns on the admission of the travel card. See Bhatia, 396 S.W.3d at 668; see

also Tex. R. App. P. 44.1; Kia Motors Corp., 432 S.W.3d at 883; Interstate Northborough



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P’ship, 66 S.W.3d at 220. Therefore, I would conclude given the state of the entire record

and the properly admitted evidence that Hull has not shown that the trial court’s error was

reasonably calculated to cause and probably did cause an improper judgment. See TEX.

R. APP. P. 44.1(a)(1); U-Haul Int’l, Inc., 380 S.W.3d at 132.        For these reasons I

respectfully dissent.


                                                GINA M. BENAVIDES,
                                                Justice

Delivered and filed the
18th day of July, 2019.




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