                                     In The

                                Court of Appeals
                      Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-15-00499-CV
                             ____________________


           IN RE COMMITMENT OF CURTIS ALLEN ARNOLD

__________________________________________________________________

                On Appeal from the 435th District Court
                     Montgomery County, Texas
                   Trial Cause No. 15-05-05169-CV
__________________________________________________________________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit Curtis Allen Arnold (Arnold)

as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-

.151 (West 2010 & Supp. 2015) (SVP statute). On October 14, 2015, a jury found

that Arnold is a sexually violent predator, and the trial court rendered a final

judgment and an order of civil commitment. Arnold filed a motion for new trial.

The court denied the motion for new trial. Arnold filed a notice of appeal. In two

issues, Arnold challenges the constitutionality of the SVP statute, as amended, and




                                        1
the denial of his motion for directed verdict. We affirm the trial court’s judgment

and order of civil commitment.

                                 Evidence at Trial

Responses to Requests for Admissions

      The State read into the record Arnold’s responses to Requests for

Admissions. Arnold admitted that he was born in July of 1969, that on or about

April 8, 1999, he was convicted in Liberty County of aggravated sexual assault of

a child, who was younger than fourteen, and that he was convicted of indecency

with a child, in a separate cause number in Liberty County. Arnold admitted that

he received an eighteen-year sentence for each Liberty County offense, and he is

currently incarcerated for the Liberty County offenses. Arnold also admitted that in

May of 1999, he was convicted of indecency with a child in Walker County,

Texas, in February of 1999, he was convicted of indecency with a child in

Montgomery County, Texas, and in February of 1999, he was also convicted of

aggravated sexual assault of a child in Montgomery County.

      Arnold admitted that he engaged in sexual contact with E.N., a five-year-old

child, and that he engaged in sexual contact with W.T., a thirteen-year-old child.

He admitted that he knew it was wrong to sexually offend against the children, but




                                         2
he did it anyway. Arnold also admitted that he is a sex offender, and that he

believes he has zero risk of reoffending.

      The trial court took judicial notice that the offense of indecency with a child

by sexual contact falls under section 21.11(A)(2) of the Texas Penal Code and that

aggravated sexual assault falls under section 22.021 of the Texas Penal Code, and

both are sexually violent offenses as defined by the SVP statute.1

Testimony of Arnold

      The State called Arnold as its first witness at trial. Arnold agreed that he has

five convictions for sex offenses, and that his discharge date for his offenses will

be in February of 2017. One of Arnold’s victims, W.T., was the child of one of

Arnold’s friends. Arnold testified about the two occasions when Arnold took W.T.

camping. At the time Arnold offended against W.T., Arnold was twenty-seven

years old and, according to the records, W.T. was twelve years old, although

Arnold testified that he thought W.T. was “like 14[.]” The camping was part of an

event for a group called Society for Creative Anachronism, where the participants

reenact events from the Middle Ages and dress in costumes like “kings and []

queens and knights and lords and ladies.” Arnold testified that he and W.T. stayed


      1
         At the close of the State’s evidence, the trial court entered a directed
verdict finding Arnold to be a repeat sexually violent offender. Arnold did not
object and does not challenge this finding on appeal.
                                            3
in the same tent. According to Arnold, Arnold was a “massage therapist[,]” and

“massaged” W.T.’s legs because W.T. complained of pain in his legs. Arnold

denied pulling W.T.’s shorts down, denied telling W.T. to relax, denied trying to

remove W.T.’s shorts, and denied intentionally touching W.T.’s sex organ. Arnold

admitted, however, that he pleaded guilty to indecency with a child by contact and

to intentionally and knowingly touching W.T.’s sex organ with sexual desire.

Arnold also admitted that he offended against W.T. on another camping trip that

occurred in Montgomery County, Texas.

      Arnold also admitted that on the Montgomery County camping trip, Arnold

sexually offended against another child, E.N., and that he was convicted of the

offense against E.N. Arnold was convicted for two aggravated assaults against

E.N., who was only five years old at the time. Arnold was also charged for

touching E.N.’s sex organ in Liberty County. Arnold denied committing the

conduct for which he was convicted with respect to the aggravated sexual assault

charges.

      Arnold testified that he gave a statement to the Cleveland Police and signed

the statement about the offense against W.T., but Arnold claimed that he touched

W.T.’s sex organ not for his own sexual gratification but because he “thought it

was what [W.T.] wanted.” Arnold also agreed that in the statement he gave to

                                        4
police about the offense against E.N., Arnold stated: “I drove [E.N.] to my house.

While on the way, I had my hand on [E.N.]’s [sex organ]. I know that [E.N.] is five

years old[.]” Arnold also signed a written stipulation in connection with the

Montgomery County aggravated sexual assault.

      Arnold testified that he was currently enrolled in a sex offender treatment

program. The program is a nine-month program which is part of his parole

stipulation, and it is something he never inquired about before, and he has never

had any other sex offender treatment. The first part of the program is classroom

instruction, and the second part is group therapy. Arnold agreed he never told his

therapist about anything other than two of his offenses, because he says the other

offenses have now “fallen off” of his record. Arnold denied that he has been

resistant to feedback from his treatment. Arnold believes it is safe for him to be

around children because of the treatment he has had and due to his belief in God.

When asked about his risk of reoffending, Arnold testified that he would not put

himself in situations where he would be alone with a child, like going to the mall,

babysitting, or getting involved with women who have children. Arnold also stated

that he does not believe that he has a “deviant sexual attraction to children[,]” and

that he has never had such an attraction.




                                            5
      On examination by Arnold’s attorney, Arnold agreed that he deserved every

day he has spent in jail or prison, that he had severely hurt his victims, destroyed

their trust, caused shame, and that what he has done could lead his victims to

depression and destroy their lives. Arnold admits that in one of his statements to

the authorities he said touching his victims was a “joke” and that one of the victims

“wanted [Arnold]” to offend the victim, but he testified that was in the late

nineties. According to Arnold, at the time of the commitment trial, he did not find

sexually abusing children to be sexually exciting, and he did not have sexual

fantasies involving children. Arnold also explained that he has had support while in

prison from his family and from Rabbi Pratt, his “spiritual mentor.” Arnold

believes he has changed and he is not the same person that he was when he

offended against his victims. Arnold testified that while in prison he has not been

charged with any other crime, and he has received no disciplinary write ups.

      However, on further examination by the State, Arnold admitted he has

received nine disciplinary violations for violating prison rules while incarcerated.

He received a violation for creating a disturbance, which was a “major case[,]” for

refusing to obey orders, and for possession of contraband (which he says was for

possessing stamps). He did not recall that he has also been written up for refusing




                                         6
to go to his cell. Arnold also testified that he does not believe he has ever been a

pedophile.

Testimony of Dr. Gaines

      The State’s expert witness was Dr. Sheri Gaines, a medical doctor with a

specialty in psychiatry. Dr. Gaines is board-certified in psychiatry and in child and

adolescent psychiatry. She currently works at a residential treatment center that

provides services to patients, and she also treats patients in an outpatient setting.

As a forensic psychiatrist for the past twenty-five years, Dr. Gaines testifies in

legal proceedings and performs evaluations for the court system. Approximately

thirty percent of her practice involves forensic psychiatry, and the other seventy

percent involves seeing patients, treating patients, and supervising other clinicians.

      Dr. Gaines explained to the jury that she uses a “standard methodology” that

is used by experts in Texas who conduct behavioral abnormality evaluations. Her

opinion was based on her knowledge of literature, facts, and details that she

gathered from interviewing Arnold and from reviewing all the collateral

information. Dr. Gaines also relied upon her education, training, and clinical

judgment. Before interviewing Arnold, Dr. Gaines reviewed Arnold’s records,

which included a report from a psychologist hired by the multidisciplinary team,

Arnold’s indictments and penitentiary packets, and some information regarding the

                                          7
facts and details of his offenses. She also reviewed actuarial instruments from a

psychologist about Arnold. According to Dr. Gaines, her meeting or interview of

Arnold lasted about three hours. After meeting with Arnold, she received

additional records including Arnold’s deposition in this case, additional records

regarding the offenses, as well as prison records and sex offender treatment

records, all of which she reviewed and relied upon. Dr. Gaines explained that some

of the records she reviewed were official records such as police reports and prison

records, and that the older information is important to her in identifying risk factors

that are published in the literature and in looking for a pattern of behavior.

According to Dr. Gaines, “the psychiatric literature indicates that past behavior is a

good predictor of future behavior especially when that past behavior is repetitive.”

      Dr. Gaines testified that her evaluation of Arnold was done in accordance

with her training as a psychiatrist, and within accepted standards in the field of

psychiatry. Based upon her education, training, experience and methodology, she

formed an opinion based on a reasonable degree of certainty that Arnold currently

suffers from a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence.

      Dr. Gaines diagnosed Arnold with pedophilic disorder and major depressive

disorder. Gaines testified that pedophilia is a chronic condition, but it can lessen

                                          8
with time and treatment. Dr. Gaines diagnosed Arnold with a pedophilic disorder

because: his first offenses against a prepubescent child occurred around September

of 1996 and then continued according to the last conviction around October of

1997, one victim was four or five years old, and another twelve or thirteen, and the

convictions and sexual offenses meet the criteria as defined in the DSM.2

      Dr. Gaines explained that she considered the factual details of Arnold’s

offenses. Dr. Gaines recalled that Arnold had seven charges that resulted in five

convictions, and she considered all of the information. During her interview of

Arnold, Arnold denied engaging in some of the sexual acts that were otherwise

documented in records of his offense against E.N., but he admitted fondling the

child and to having the child perform a sexual act that Arnold later denied in his

deposition. Dr. Gaines found it significant that Arnold gave different versions of

what happened at different times; this “is significant because it’s evidence of the

risk factor of not taking full responsibility” and of “the risk factor of minimizing

what he has done.” Dr. Gaines also considered the records from Arnold’s sex

offender treatment program, which indicated that Arnold is “resistant to feedback

that he gets from peers[,]” and although Arnold has made some progress in

treatment, he still has “a lot more to work on.” In Dr. Gaines’s opinion, although
      2
          Dr. Gaines explained that the “DSM” is the Diagnostic and Statistical
Manual.
                                         9
Arnold “echoed” a lot of terminology, Arnold does not understand why he sexually

offended, which is also significant. And, while one progress note indicated Arnold

admitted he had a sexual attraction to his victims, other notes indicated he does not

admit such attraction. Dr. Gaines considered this as present-day evidence that

Arnold has a sexual deviancy.

      Dr. Gaines identified risk factors for Arnold reoffending that include

Arnold’s deviant sexual behavior, offending against prepubescent boys, the range

of the victims’ ages from four to thirteen, the multiple types of sexual acts, the

grooming of his victims, offending in public places, the lack of age-appropriate

romantic relationships, and the lack of accepting responsibility and minimization.

Dr. Gaines also identified some positive factors for Arnold, which include that he

is in sex offender treatment, his faith, and the education he has obtained in prison.

Arnold also scored very low on the PCL-R actuarial as to psychopathic traits.

Testimony of Rabbi James Pratt

      James Pratt is a Messianic Jewish Rabbi, a Jewish believer in Jesus Christ,

who has a congregation and also volunteers in the prison system. 3 Rabbi Pratt

      3
        Arnold notified the State after the deadline in the scheduling order that he
wanted to call Rabbi James Pratt as a witness on behalf of Arnold. In a pretrial
hearing, the trial court ruled that the defense had shown “good cause” for the late
designation, but the court concluded at the pretrial hearing that his testimony was
not relevant. During the trial, the State conceded it had not objected based on
                                         10
mentored Arnold from 2005 until 2013, while Arnold was incarcerated. The Rabbi

admitted that he did not know the details of Arnold’s criminal offenses, but the

Rabbi testified he knew Arnold “has an offense, a sexual offense with children.”

The Rabbi testified about his work in the prison with Arnold and the support

system that faith provides, and he explained that he would not be testifying if “I

wasn’t convinced that [Arnold] was a new man in Christ, that he is remorseful for

his mistake and that he would never do that again. I couldn’t sit here and testify on

his behalf if I had any doubt in my mind that he would repeat that crime.” Rabbi

Pratt also agreed he is not a licensed psychiatrist, counselor, or sex offender

provider. According to Rabbi Pratt, Arnold has admitted to and repented of being

sexually attracted to prepubescent boys, and the Rabbi believes Arnold is sincere.

                             Constitutional Challenge

      In his first issue, Arnold argues that the SVP statute “as amended by Senate

Bill 746 is facially unconstitutional because it requires all persons adjudicated as

sexually violent predators to live in oppressive confinement with no evidence they

cannot be treated in an outpatient model first, and as amended fails the ‘intent-

effects test’ utilized by the Texas Supreme Court in In re Commitment of Fisher,

relevancy, and Dr. Gaines testified about the protective factor of Arnold’s faith.
The trial court then ruled that Rabbi Pratt would be allowed to testify but limited
his testimony. The Rabbi was not allowed to testify as an expert on the specific
risk of reoffending as a sexual offender.
                                         11
164 S.W.3d 637 (Tex. 2005).” Arnold contends that the findings of a trial court

judge as to another civilly committed person, Alonzo May, equally apply to

Arnold, and Arnold argues that “at least five out of six of the ‘intents-effects’ test

factors as analyzed in Fisher have been rendered moot by SB 746.”

      Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas

Health and Safety Code in several respects. See Act of May 21, 2015, 84th Leg.,

R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2701, 2701-12. The Legislature created a

new state agency, the Texas Civil Commitment Office (TCCO), with the

responsibility for treatment and supervision of sexually violent predators.4 Id. § 3

(current version at Tex. Health & Safety Code Ann. § 841.007 (West Supp. 2015)).

The Legislature required the TCCO to develop a tiered program of supervision and

treatment that provides a seamless transition from a total confinement facility to

less restrictive housing and supervision and eventual release from civil

commitment, based on the person’s behavior and progress in treatment. Id. § 16

(current version at Tex. Health & Safety Code Ann. § 841.0831 (West Supp.

2015)). Under the statute as amended, the TCCO transfers a committed person to

      4
        See Tex. Gov’t Code Ann. § 420A.002 (West Supp. 2015). Throughout this
opinion we refer to the Texas Civil Commitment Office by its acronym, “TCCO.”
We refer to its predecessor agency, the Office of Violent Sex Offender
Management, as “OVSOM.” In some places in this opinion, we refer to Chapter
841 of the Texas Health and Safety Code as “the SVP statute.”
                                         12
less restrictive housing and supervision if the transfer is in the best interests of the

person and conditions can be imposed that adequately protect the community, and

a committed person may petition the court for a transfer to less restrictive housing

and supervision. Id. (current version at Tex. Health & Safety Code Ann.

§ 841.0834 (West Supp. 2015)). The enacting language of SB 746 provides:

      If a civil commitment requirement imposed under Chapter 841, Health
      and Safety Code, before the effective date of this Act differs from any
      of the civil commitment requirements listed in Section 841.082,
      Health and Safety Code, as amended by this Act, the applicable court
      with jurisdiction over the committed person shall, after notice and
      hearing, modify the requirement imposed as applicable to conform to
      that section.

Id. § 40(b).

      The statutory amendments about which Arnold complains became effective

on June 17, 2015, and Arnold’s trial began on October 12, 2015. The appellate

record indicates that Arnold did not raise the issue of the constitutionality of the

amended SVP statute before or during trial, and he failed to raise the issue in his

motion for new trial. Generally, to preserve a complaint for appellate review, the

complaining party must present the complaint to the trial court by timely request,

objection, or motion. Tex. R. App. P. 33.1(a)(1).

      We apply the preservation rule to constitutional challenges. See In re L.M.I.,

119 S.W.3d 707, 710-11 (Tex. 2003) (parent failed to preserve his due process

                                          13
challenge); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (party

failed to raise constitutional argument that trial court’s ruling violated open-courts

provision in response to summary judgment motion and thus did not preserve it for

appeal); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (party waived due

process and equal protection challenges by failing to raise them in trial court);

Lowe v. Jefferson Dental Clinics, No. 05-11-00902-CV, 2012 Tex. App. LEXIS

3796, at **4-5 (Tex. App.—Dallas May 14, 2012, no pet.) (mem. op.) (appellant

failed to preserve her challenge to the constitutionality of Chapter 74 by failing to

raise the complaint in the trial court); In re J.R.N., No. 09-08-00029-CV, 2010

Tex. App. LEXIS 2280, at **8-9 (Tex. App.—Beaumont Apr. 1, 2010, no pet.)

(mem. op.) (“The law is well settled that even constitutional errors may be waived

by failure to raise the issues at trial.”). Arnold did not raise his constitutional

arguments in the trial court. Therefore, he failed to preserve the issue for appellate

review. See Tex. R. App. P. 33.1. We overrule Arnold’s first issue.5



      5
        Nevertheless, even if Arnold had preserved his constitutional challenge, we
would still overrule his first issue. This court recently examined the
constitutionality of the SVP statute, as amended, in In re Commitment of May, No.
09-15-00513-CV, 2016 Tex. App. LEXIS 8058 (Tex. App.—Beaumont July 28,
2016, no pet. h.). In May, we reversed the trial court and concluded that the statute
is constitutional, and we specifically examined and applied the factors as outlined
in Fisher. Id. For the same reasons discussed in May, we conclude the statute
remains civil and we reject Arnold’s constitutional challenge.
                                         14
                           Motion for Directed Verdict

      In his second issue, Arnold argues that the trial court erred in denying his

motion for directed verdict because he claims that the State’s expert, Dr. Sheri

Gaines, “could not provide scientific support for her methodology used in this

case, and could not provide scientific support of her opinion that Appellant’s

actions 16 years ago constitute a behavioral abnormality today.” Arnold did not

raise a challenge to Dr. Gaines’s testimony either before or during her testimony.

However, at the close of the trial, after the State and Defense rested, Arnold moved

for a directed verdict wherein he argued as follows:

      [Respondent’s Attorney]: Your Honor, at this time, the Respondent
      moves for a directed verdict on the grounds that the State has failed to
      offer any proof that Mr. Arnold suffers from a behavioral abnormality.
      Evidence is legally insufficient to support a verdict whether the
      evidence at trial would enable reasonable and fair minded people to
      reach a verdict. The State has presented no evidence or insufficient
      evidence to show that Mr. Arnold suffers from a behavioral
      abnormality that makes him likely to engage in a predatory act of
      sexual violence today. The State’s expert was unable to close the
      analytical gap between Mr. Arnold’s last offense and his sexual
      behavior today. There is no evidence that even if Mr. Arnold is
      sexually deviant that Mr. Arnold is likely to act on that tendency
      which is required for the State to prove.

             The State’s expert opinion is based upon an unstructured
      clinical judgment as she gave no basis for support of her methodology
      or the research she relied upon in giving her opinion in this case. She
      never cited to any specific articles regarding her risk factors for an
      example. She scored no actuarial instruments and, even though she
      said she reviewed these instruments, she also testified that she has no
                                         15
      training and/or experience in scoring these instruments, thus, her
      ability to review this instrument is questionable at best.

             Unstructured clinical judgment is a process involving no
      specific guidelines but relies on the individual clinician’s evaluation
      having regard to the clinician’s experience and qualifications. Thus,
      her testimony is wholly conclusory, speculative and unreliable.

The trial court overruled the motion for directed verdict.

      We review the denial of a motion for directed verdict under a legal

sufficiency standard. In re Commitment of Hatchell, 343 S.W.3d 560, 564 (Tex.

App.—Beaumont 2011, no pet.). We view the evidence in the light most favorable

to the verdict to determine if a rational jury could have found, beyond a reasonable

doubt, the elements required for commitment under the SVP statute. In re

Commitment of Nicholson, No. 09-13-00498-CV, 2014 Tex. App. LEXIS 10179, at

**9-10 (Tex. App.—Beaumont Sept. 11, 2014, no pet.) (mem. op.). “It is the

factfinder’s responsibility to fairly resolve conflicts in the testimony, weigh the

evidence, and draw reasonable inferences from basic facts to ultimate facts.” Id.

      The State argues that Arnold failed to make timely objections to Dr.

Gaines’s testimony and that he waived the complaints in his motion for directed

verdict. When a party intends to challenge the reliability of an expert’s

methodology, a timely objection must be made in the trial court. Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); In re Commitment of

                                         16
Barbee, 192 S.W.3d 835, 843 (Tex. App.—Beaumont 2006, no pet.); see also Tex.

R. App. P. 33.1; Tex. R. Evid. 103. An objection to reliability is timely if it is made

before trial, or when the evidence is offered. Maritime Overseas, 971 S.W.2d at

409. An objection raised after the evidence is offered is not timely. See In re

Commitment of Dodson, 434 S.W.3d 742, 749-50 (Tex. App.—Beaumont 2014,

pet. denied) (finding an objection raised the day following the testimony was

untimely). Additionally, an objection raised after the deadline set in a docket

control order is also untimely. In re Commitment of Conley, No. 09-10-00383-CV,

2011 Tex. App. LEXIS 7877, at **12-13 (Tex. App.—Beaumont Sept. 29, 2011,

no pet.) (mem. op.).

      The docket control order in this case set the deadline for challenges to expert

testimony as September 16, 2015. Arnold did not object to the testimony of Dr.

Gaines, or to the reliability or methodology used by Dr. Gaines, until after the

deadline in the docket control order and after both parties had rested and closed at

trial. Appellant does not address this deficiency in his appellate brief. However,

Appellant contends that while “[c]hallenges that raise questions regarding the

scientific reliability of [the] expert’s methodology used to examine a set of facts

must be raised before trial or when the evidence [is] offered[,][] challenges to an

expert’s conclusory, speculative, or ipse dix[i]t opinion may be raised for the first

                                          17
time on appeal (or in Appellant’s case, the motion for directed verdict and the

motion for new trial).”

      On appeal, Arnold challenges Gaines’s testimony as conclusory, non-

probative, speculative, and legally insufficient. He contends that there is an

analytical gap between the facts and the expert’s conclusions, the expert’s opinions

are lacking in methodology and authoritative support, and, therefore, unreliable.

Arnold also argues that Gaines misapplied the actuarial tests. Nevertheless, in his

Reply Brief, Arnold states that he “does not challenge the scientific reliability of

Dr. Gaines’ methodology . . .” but rather that Dr. Gaines’s “failure to provide

specific articles or research to support her opinion is what Appellant challenges on

appeal[.]”

      Arnold’s complaints regarding Gaines’s use of or misapplication of actuarial

tests and her alleged failure to provide authoritative support for her opinions

concern the foundational data used or relied on by the expert in reaching her

opinions. See In re Commitment of Sprague, No. 09-10-00228-CV, 2011 Tex. App.

LEXIS 4503, at **28-29 (Tex. App.—Beaumont June 16, 2011, no pet.) (mem.

op.). Similarly, a complaint that an analytical gap exists in an expert’s testimony or

a complaint that the expert’s testimony is not based on the facts of the case is a

challenge to the methodology used by the expert. In re Commitment of Robertson,

                                         18
No. 09-09-00307-CV, 2010 Tex. App. LEXIS 7421, at **28-29, 31 (Tex. App.—

Beaumont Sept. 9, 2010, pet. denied) (mem. op.). Arnold’s objections to Gaines’s

testimony were untimely. See Tex. R. App. P. 33.1(a)(1). Under these

circumstances, Arnold’s challenges to the expert’s testimony as outlined in the

motion for directed verdict were not timely preserved for appellate review. See

Dodson, 434 S.W.3d at 749-50; City of San Antonio v. Pollock, 284 S.W.3d 809,

816-17 (Tex. 2009); see also Sprague, 2011 Tex. App. LEXIS 4503, at *29;

Robertson, 2010 Tex. App. LEXIS 7421, at *29; Barbee, 192 S.W.3d at 843.

      To the extent Arnold challenges Gaines’s opinions as legally insufficient, we

also disagree. Gaines’s opinions were based upon established methodology and

techniques in her profession. See Dodson, 434 S.W.3d at 750 (quoting In re

Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011, pet.

denied)). Dr. Gaines is a board-certified psychiatrist. The methodology she

employed in this case is the same methodology that she learned during her formal

education and training, and it is the methodology used by other professionals

conducting behavioral abnormality evaluations. Like the expert in Dodson, Dr.

Gaines conducted a face-to-face interview with Arnold. She also reviewed and

relied upon records typically used by other professionals conducting this type of

evaluation. Dr. Gaines diagnosed Arnold with pedophilic disorder and major

                                        19
depressive disorder. She identified risk factors Arnold possesses, as well as

positive factors. She testified about the risk factors and explained what they are

based upon. She also explained to the jury that her opinion is based on her

education, training, clinical judgment, knowledge of the literature, the details

obtained from Arnold and his records, and her review of all of the collateral

information. In Dr. Gaines’s expert opinion, Arnold suffers from a behavioral

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

Dr. Gaines explained in detail the facts and evidence she found relevant in forming

her opinions and the role those facts played in her evaluation. Her testimony was

not so speculative or conclusory as to be completely lacking in probative value.

See In re Commitment of Moss, No. 09-12-00599-CV, 2014 Tex. App. LEXIS

1612, at **6-7 (Tex. App.—Beaumont Feb. 13, 2014, pet. denied) (mem. op.).

Conley, 2011 Tex. App. LEXIS 7877, at *13; Sprague, 2011 Tex. App. LEXIS

4503, at **29-30; see also Barbee, 192 S.W.3d at 843.

      “The jury is the sole judge of the credibility of the witnesses and the weight

to be given their testimony.” In re Commitment of Mullens, 92 S.W.3d 881, 887

(Tex. App.—Beaumont 2002, pet. denied). The jury may resolve conflicts and

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

testimony. Id. Viewing the evidence in the light most favorable to the verdict, we

                                        20
conclude that a rational jury could have found, beyond a reasonable doubt, that

Arnold 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, 413 (2002); Mullens, 92 S.W.3d at 885; In re

Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930 (Tex.

App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.). Weighing all of the

evidence, we also 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

and we affirm the trial court’s judgment and order of civil commitment.

      AFFIRMED.

                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on July 14, 2016
Opinion Delivered August 25, 2016

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




                                        21
