                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00403-CV
                            ____________________


      IN RE COMMITMENT OF THOMAS FRANCIS FITZPATRICK


_______________________________________________________               ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-11-12506 CV
________________________________________________________               _____________

                           MEMORANDUM OPINION

      Thomas Francis Fitzpatrick 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, Fitzpatrick

contends that the evidence is factually insufficient to support the jury’s verdict, that

comments made by the trial court revealed judicial bias that denied him his right to

have a fair trial in an impartial forum, and that the State’s attorney, during

summation, advanced arguments unsupported by the record that caused the jury to


                                           1
reach an improper verdict. We conclude that Fitzpatrick’s issues are without merit,

and we affirm the judgment and order of civil commitment.

      We address Fitzpatrick’s second issue first. In issue two, Fitzpatrick asserts

that the jury’s verdict is not supported by factually sufficient evidence. According

to Fitzpatrick, the conclusions of Dr. Lisa Clayton, the State’s expert witness, are

not supported by the evidence. Specifically, Fitzpatrick contends that Dr. Clayton

had no basis to support her conclusion that Fitzpatrick is volitionally impaired or

that he is likely to reoffend. Fitzpatrick also asserts that the testimony of his expert,

Dr. Roger Saunders, demonstrates that the risk factors discussed by Dr. Clayton

during her testimony were factors that were not relevant to his case.

      In reviewing a factual sufficiency claim in an SVP case, we weigh the

evidence to determine whether a verdict that is supported by legally sufficient

evidence nevertheless reflects a risk of injustice that compels our ordering a new

trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied). However, the risk of an injustice arising from the weight of the

evidence is necessarily slight when the jury uses a beyond-reasonable-doubt

standard in deciding the case, and when the evidence admitted during the trial is

legally sufficient to support the jury’s verdict. Id. Nonetheless, “if in the view of

the appellate court after weighing the evidence, the risk of an injustice remains too

                                           2
great to allow the verdict to stand, the appellate court may grant the defendant a

new trial.” Id.

      In SVP cases, the State must prove the elements of its case beyond a

reasonable doubt. See Tex. Health & Safety Code Ann. § 841.062(a) (West 2010).

In forming her opinions about Fitzpatrick, Dr. Clayton used the standards found in

Chapter 841 of the Texas Health and Safety Code. Under the provisions of that

chapter, a person can be found to be 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) (West Supp. 2014). A “‘[b]ehavioral abnormality’” is

“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) (West Supp. 2014). “‘Predatory act’ means an act

directed toward individuals, including family members, for the primary purpose of

victimization.” Id. § 841.002(5) (West Supp. 2014).

      On appeal, Fitzpatrick contends that Dr. Clayton’s testimony was

conclusory. We disagree with Fitzpatrick’s view of the record. In our opinion, the

evidence adduced at trial is factually sufficient to demonstrate that Dr. Clayton has

                                         3
the qualifications relevant to testifying in a case involving the question of whether

a person is a sexually violent predator, and her testimony reflects that her opinions

were based on the evidence that is relevant to Fitzpatrick’s case. During the trial,

Dr. Clayton, who is board certified in general and forensic psychiatry, discussed

her training and experience as related to evaluating whether a person has a

behavioral abnormality. Dr. Clayton discussed the information she reviewed in

Fitzpatrick’s case, and she related the information she reviewed to her opinions.

For example, the testimony shows that Dr. Clayton interviewed Fitzpatrick,

reviewed records that are relevant to his sexual history, and reviewed records

relevant to his prior convictions of offenses involving sexually violent crimes. The

records Dr. Clayton reviewed are the types of records that experts in Dr. Clayton’s

field rely on in forming opinions. Dr. Clayton also explained that she performed

her assessment in Fitzpatrick’s case in a manner that is consistent with the training

she had received as a professional.

      Dr. Clayton also discussed how Fitzpatrick’s records contributed to her

opinions. For example, Dr. Clayton testified that she had relied on Fitzpatrick’s

prior convictions of sexually violent crimes to form her opinion that Fitzpatrick has

a “behavioral abnormality.” The evidence before the jury included Fitzpatrick’s

actuarial scores, and Dr. Clayton explained why she chose to discount his scores on

                                         4
those tests in her evaluation. After Dr. Clayton explained her methodology and

how she applied that methodology to Fitzpatrick, she expressed the opinion that

Fitzpatrick has a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. We conclude that the opinions at issue on appeal

were neither wholly conclusory nor were they without any foundation. See In re

Commitment of Muzzy, No. 09-13-00496-CV, 2014 WL 1778254, at *2 (Tex.

App.—Beaumont May 1, 2014, pet. denied) (mem. op.).

      Fitzpatrick also complains that the evidence is not factually sufficient to

support Dr. Clayton’s testimony that he has a volitional impairment. However, Dr.

Clayton’s testimony that Fitzpatrick’s pedophilia affects his volitional capacity is

tied to facts in the record, as the records reviewed by Dr. Clayton reflect that

Fitzpatrick does not know what causes his abnormal sexual behavior, and she

suggests that his history shows that he has not had the ability or the inclination to

control his abnormal behavior. According to Dr. Clayton, pedophilia is a chronic

condition, and she explained that Fitzpatrick’s sociopathic traits contributed to her

opinions related to the risk that Fitzpatrick would likely reoffend. Dr. Clayton

identified several risk factors that she thought were relevant to her opinion that

Fitzpatrick would reoffend, and she noted that she did not find any factors, such as

his completion of a program on sex offender treatment, that would mitigate against

                                         5
Fitzpatrick’s risk. According to Dr. Clayton, if released, Fitzpatrick would reoffend

at some point because “he can’t help it.”

      Fitzpatrick suggests that the evidence did not show that he had a serious

difficulty controlling his behavior. However, whether a person suffers from an

emotional or volitional defect so grave as to cause behavior that makes him a

menace is included in the determination of whether he has “serious difficulty in

controlling his behavior.” In re Commitment of Almaguer, 117 S.W.3d 500, 505-06

(Tex. App.—Beaumont 2003, pet. denied). “A condition which affects either

emotional capacity or volitional capacity to the extent a person is predisposed to

threaten the health and safety of others with acts of sexual violence is an

abnormality which causes serious difficulty in behavior control.” Id. at 506. The

jury could infer serious difficulty controlling behavior from Fitzpatrick’s past

behavior and from Dr. Clayton’s testimony. 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.); see also In re Commitment of Grinstead, No. 09-07-00412-

CV, 2008 WL 5501164, at *7 (Tex. App.—Beaumont Jan. 15, 2009, no pet.)

(mem. op.).

      Fitzpatrick further argues that the testimony of his expert, Dr. Saunders,

supports his conclusion that the evidence is factually insufficient to support the

                                            6
jury’s finding that he is a sexually violent predator. For example, Fitzpatrick

asserts that Dr. Saunders’s testimony indicates that Fitzpatrick is not likely to

reoffend. Nevertheless, the jury was not required to agree with Fitzpatrick’s expert

in a case where the jury heard conflicting evidence on that subject. For instance,

Dr. Saunders agreed that generally, pedophilia does not go away on its own. Dr.

Saunders further acknowledged that Fitzpatrick had not had sex offender treatment.

      In this case, the jury heard conflicting opinions from mental health experts

relevant to whether Fitzpatrick is a sexually violent predator and regarding whether

he is likely to reoffend. Dr. Saunders expressed the opinion that Fitzpatrick had a

“very low risk[]” of reoffending; Dr. Clayton expressed the opinion that Fitzpatrick

would likely reoffend. On this record, the evidence allowed the jury to draw

reasonable inferences from basic facts to determine ultimate fact issues and to

resolve conflicts and contradictions in the evidence by believing all, part, or none

of the testimony. See Grinstead, 2008 WL 5501164, at *7. As the sole judge of the

weight and credibility of the evidence, the jury apparently chose to accept the

opinions of Dr. Clayton and to reject those offered by Dr. Saunders. See In re

Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet.

denied).




                                         7
      Based on the jury’s findings, the jury implicitly determined that Fitzpatrick

has serious difficulty controlling his behavior and is likely to commit predatory

acts of sexual violence directed toward individuals for the primary purpose of

victimization. See Muzzy, 2014 WL 1778254, at *3. Weighing all of the evidence,

we conclude the verdict does not reflect a risk of injustice that compels our

ordering a new trial. See Day, 342 S.W.3d at 213. We overrule issue two.

      In issue three, Fitzpatrick complains about several comments the trial court

made during a pretrial scheduling conference and during trial. According to

Fitzpatrick, these comments revealed the trial court was biased against him and

that it was biased in favor of the State. Fitzpatrick concludes several of the

comments require that we conclude he was denied a fair trial before an impartial

tribunal.

      We examine the comments at issue in the context of the entire record. See In

re Commitment of Barbee, 192 S.W.3d 835, 848 (Tex. App.—Beaumont 2006, no

pet.). Whether a trial court’s comments reveal bias are issues that are reviewed as

presenting a question of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.

2001). In conducting a trial, a court has a significant amount of discretion and may

“express itself in exercising this broad discretion.” Id. at 240-41. “A trial court has

inherent power to control the disposition of cases with economy of time and effort,

                                          8
exercising that power without bias and with patience, and in a manner that

promotes confidence in the judge’s impartiality.” In re Commitment of Anderson,

392 S.W.3d 878, 885 (Tex. App.—Beaumont 2013, pet. denied). “Generally,

Texas law imputes good faith to a trial judge’s judicial actions in controlling a

trial.” Barbee, 192 S.W.3d at 847. “‘[J]udicial remarks during the course of a trial

that are critical or disapproving of, or even hostile to, counsel, the parties, or their

cases, ordinarily do not support a bias or partiality challenge.’” Francis, 46 S.W.3d

at 240 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

       On appeal, the complaining party must show that the comments were

improper, and then show that the improper comments prejudiced the complaining

party. Barbee, 192 S.W.3d at 847. We must examine the record to determine

whether the complaint was preserved for review on appeal. Id. With respect to a

complaint asserting the trial court made an improper comment showing bias, the

complaining party must object when the comment occurs and request an

instruction to cure the complaint when the comment occurred, unless a proper

instruction would not have rendered the comment harmless. Francis, 46 S.W.3d at

241.

       During trial, the record does not show that Fitzpatrick objected to the

comments at issue when they occurred. Additionally, the comments at issue, in our

                                           9
opinion, did not reveal what the trial court might have thought about the merits of

Fitzpatrick’s case. Instead, the comments show the trial court desired to timely

dispose of Fitzpatrick’s case. To the extent the comments can be construed as

unduly critical of counsel’s tactics, any harm from the comments at issue could

have been resolved when the comments occurred, had Fitzpatrick requested

appropriate instructions about the comments which are the subject of Fitzpatrick’s

complaints. By failing to timely object and request appropriate instructions in

response to the comments when they were made, Fitzpatrick failed to preserve his

complaints for review on appeal. See Tex. R. App. P. 33.1; Francis, 46 S.W.3d at

241.

       Fitzpatrick also complains about several comments the trial court made

during a pretrial scheduling conference. The comments that occurred at the

scheduling conference are not the type of comments that raise any question about

the trial court’s qualifications to serve; rather, Fitzpatrick contends the comments

reflect a bias that required the trial court to be recused. Compare Tex. R. Civ. P.

18b(a), with Tex. R. Civ. P. 18b(b); see Merendino v. Burrell, 923 S.W.2d 258,

262 (Tex. App.—Beaumont 1996, writ. denied) (noting the distinction between

motions to disqualify and motions to recuse).




                                        10
      Complaints that concern recusal can be waived if the party suggesting the

trial court was subject to recusal fails to timely file appropriate motions presenting

the issue within the time required by Rule 18b of the Texas Rules of Civil

Procedure. Tex. R. Civ. P. 18b(e). In Fitzpatrick’s case, the pretrial conference

took place approximately seven months before trial. The record shows that

Fitzpatrick failed to object when the comments occurred. Prior to trial, Fitzpatrick

failed to file a motion asking that the trial court be recused. See Janicek & Ol’Don,

Inc. v. Kikk Inc., No. C14-94-00228-CV, 1995 WL 227929, at *1 (Tex. App.—

Houston [14th Dist.] Apr. 13, 1995, writ. denied) (not designated for publication)

(noting that the appropriate vehicle to preserve a complaint claiming the judge

should be recused for bias is a motion to recuse).

      We conclude the record shows that Fitzpatrick failed to preserve his

complaints about the comments the trial court made during the scheduling

conference for appellate review. See Tex. R. Civ. P. 18a(a), (b)(1)(A); Tex. R. Civ.

P. 18b(e). We overrule issue three.

      In issue one, Fitzpatrick complains the State’s attorney, in summation,

argued that Fitzpatrick might have offended against other children who never

reported the crimes. According to Fitzpatrick, the State’s argument was improper,

and probably resulted in an improper verdict. See Tex. R. App. P. 44.1(a)(1).

                                         11
      Generally, proper jury argument falls into one of these areas: (1) a

summation of the evidence, (2) a reasonable deduction from the evidence, (3) an

answer to an argument made by opposing counsel, or (4) a plea for the

enforcement of a law. See generally Tex. R. Civ. P. 269(b), (e); see also Brown v.

State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Arguments that are presented

to juries in summation are to be confined “strictly to the evidence and to the

arguments of opposing counsel.” Tex. R. Civ. P. 269(e). To obtain a reversal based

on an error that arises during jury argument, the appellant must show “‘(1) an

error[,] (2) that was not invited or provoked, (3) that was preserved by the proper

trial predicate, such as an objection, a motion to instruct, or a motion for mistrial,

and (4) was not curable by an instruction, a prompt withdrawal of the statement, or

a reprimand by the judge.’” In re Commitment of Eeds, 254 S.W.3d 555, 560 (Tex.

App.—Beaumont 2008, no pet.) (quoting Standard Fire Ins. Co. v. Reese, 584

S.W.2d 835, 839 (Tex. 1979)).

      The record shows that when the State’s attorney presented his closing

arguments, Fitzpatrick’s attorney did not object to the State’s argument referencing

the existence of other victims. Moreover, there was evidence admitted before the

jury showing that Fitzpatrick had committed additional sexual offenses other than

those which formed the bases of his convictions. During the trial, Dr. Clayton

                                         12
testified that based on her clinical experience, her evaluation of Fitzpatrick, and her

review of the records in the case, Fitzpatrick did not wait until the age of “38 or

42” to start offending; rather, in Dr. Clayton’s opinion, that is just when Fitzpatrick

got caught. Dr. Clayton also testified that she “fully believe[s] Mr. Fitzpatrick has

left a large wake of other victims.” Dr. Clayton and Dr. Saunders both testified that

Fitzpatrick had two convictions; however, the experts also agreed that the records

they reviewed indicated that Fitzpatrick had three victims.

      Because the argument the State’s attorney presented to the jury about other

victims finds support in the evidence that was before the jury, the argument

Fitzpatrick complains about in his appeal was not improper. See In re Commitment

of Dodson, 434 S.W.3d 742, 751 (Tex. App.—Beaumont 2014, pet. filed). Having

concluded the State’s attorney’s argument about other victims was not error, we

overrule issue one.

      Having carefully reviewed the issues that Fitzpatrick presents in his appeal,

the trial court’s judgment and order of civil commitment are affirmed.

      AFFIRMED.

                                               ________________________________
                                                         HOLLIS HORTON
                                                             Justice
Submitted on July 29, 2014
Opinion Delivered November 13, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
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