                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00276-CV


IN RE: THE COMMITMENT OF
CHARLES RAY DEVER

                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                TRIAL COURT NO. CDC4-S-13029-15

                                    ----------

                                   OPINION

                                    ----------

      The State of Texas filed a petition to civilly commit Appellant Charles Ray

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

§§ 841.001‒.151 (West 2010 & Supp. 2016) (the SVP Act). At the time, Dever

was incarcerated, serving concurrent thirteen-year sentences for aggravated

sexual assault of a child under age fourteen and for aggravated sexual assault of

a child under age seventeen. Dever denied the State’s allegations, and the case

eventually proceeded to trial.   A jury found that Dever is a sexually violent
predator, and the trial court signed a final judgment civilly committing Dever

under the SVP Act.

      In a single issue, Dever argues that the evidence is legally and factually

insufficient to support the jury’s finding because, in opining that Dever suffers

from a “behavioral abnormality” as defined by the SVP Act, David Self, M.D., the

State’s expert witness, relied in part on a diagnosis that is not recognized by the

Diagnostic and Statistical Manual of Mental Disorders (DSM-V)—“other specified

paraphilia, nonconsent.” Dever’s argument is foreclosed by both the language of

the SVP Act and the relevant caselaw authorities construing it.1

      The SVP Act requires the State to prove beyond a reasonable doubt that a

person is a sexually violent predator. See id. § 841.062. We therefore review

the legal sufficiency of the evidence using the appellate standard of review for

criminal cases. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex.

App.—Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979)). We assess the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have




      1
        The State initially contends that Dever failed to preserve his argument for
appeal, but in his motion for new trial, Dever argued that there is no evidence or
insufficient evidence to support the jury’s finding and that no authority supports
Dr. Self’s opinion about Dever’s sexual deviance, which encompassed the
testimony about the challenged diagnosis. Dever therefore preserved his issue
for appellate review. See Tex. R. Civ. P. 324(b)(2); T.O. Stanley Boot Co. v.
Bank of El Paso, 847 S.W.2d 218, 220–21 (Tex. 1992).

                                        2
found, beyond a reasonable doubt, the elements required for commitment under

the SVP Act. Id.

      Factual sufficiency review has been abandoned in criminal cases in which

the burden of proof is reasonable doubt, see Brooks v. State, 323 S.W.3d 893

(Tex. Crim. App. 2010), but the Beaumont Court of Appeals, which until recently

handled the bulk of SVP Act appeals, has continued to perform a factual

sufficiency review.   See In re Commitment of Day, 342 S.W.3d 193, 206‒13

(Tex. App.—Beaumont 2011, pet. denied) (explaining that as an intermediate

appellate court, it has a constitutional duty to review factual sufficiency when the

issue is raised on appeal; that the Texas Supreme Court, not the Court of

Criminal Appeals, construes the Texas constitution as it is applied in civil cases;

and that it would continue to apply the factual sufficiency review until the Texas

Supreme Court overrules or distinguishes its binding precedent); see also In re

Commitment of Stuteville, 463 S.W.3d 543, 552 (Tex. App.—Houston [1st Dist.]

2015, pet. denied) (applying factual sufficiency review); In re Commitment of

Wirtz, 451 S.W.3d 462, 465 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(same). We therefore will too. Under this factual sufficiency review, we weigh

the evidence to determine “whether a verdict that is supported by legally

sufficient evidence nevertheless reflects a risk of injustice that would compel

ordering a new trial.”   Day, 342 S.W.3d at 213 (reasoning that “commitment

proceedings are decided on evidence that concerns the application of ‘soft’

science that calls for the exercise of a considerable amount of intuitive judgment

                                         3
on the part of experts with specialized training” and that the “consequences of an

incorrect judgment are great enough that the legal system should retain a factual

sufficiency standard of review to minimize the risk of an injustice”).

      Under the SVP Act, a person is a sexually violent predator if the person

(1) is a repeat sexually violent offender and (2) suffers from a behavioral

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

Tex. Health & Safety Code Ann. § 841.003(a). A behavioral 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). The trial court directed a verdict that Dever is

a repeat sexually violent offender, and he does not challenge that ruling on

appeal. Thus, in answering jury question number one—“Do you find beyond a

reasonable doubt that [Dever] is a sexually violent predator?”—the jury only had

to determine whether Dever suffers from a behavioral abnormality that makes

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

      Dever’s argument that the evidence is legally and factually insufficient

because Dr. Self relied in part upon a diagnosis that the DSM-V does not

recognize necessarily implicates the requirements of the SVP Act. As with any

question of statutory construction, we seek to ascertain and give effect to the

legislature’s intent as expressed by the language of the statute. City of Rockwall

v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). The SVP Act is silent as to both

                                          4
mental diagnoses and the DSM-V; it merely establishes what the State must

prove, not how the State must go about proving it. Indeed, as now-Chief Justice

Hecht has observed, “A medical diagnosis of a person’s mental health may

certainly inform an assessment of whether he has an SVP’s behavioral

abnormality, but the principal issue in a commitment proceeding is not a person’s

mental health but whether he is predisposed to sexually violent conduct.” In re

Commitment of Bohannon, 388 S.W.3d 296, 306 (Tex. 2012); see In re

Commitment of Lewis, 495 S.W.3d 341, 347 (Tex. App.—Beaumont 2016, pet.

denied) (reasoning that “a mental disorder is not a prerequisite to commitment

under the SVP statute”).

      Accordingly, because the SVP Act plainly does not require the State to

establish a mental diagnosis to prove that a person suffers from a behavioral

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

we fail to see how Dr. Self’s reliance on a diagnosis that the DSM-V does not

recognize could have, in and of itself, rendered the evidence legally and factually

insufficient to support the jury’s finding.    At most, Dr. Self’s unobjected-to

testimony was merely one piece of evidence that the jury had to consider—and,

as the factfinder, even could have rejected—in determining whether Dever

suffers from a behavioral abnormality.2


      2
        We also note that Dr. Self did not diagnose Dever with only “other
specified paraphilia, nonconsent.” He also diagnosed Dever with exhibitionistic
disorder, antisocial personality disorder, and narcissistic personality disorder.
Dever does not complain about those diagnoses.

                                          5
      Dever argues that if a medical diagnosis is not required to civilly commit a

person under the SVP Act, but the State nevertheless relies on a diagnosis to

prove behavioral abnormality, then we should create an exception requiring that

the diagnosis be recognized by the DSM-V. We have no authority to rewrite the

SVP Act to require such a showing. See Entergy Gulf States, Inc. v. Summers,

282 S.W.3d 433, 443 (Tex. 2009) (“Enforcing the law as written is a court’s safest

refuge in matters of statutory construction, and we should always refrain from

rewriting text that lawmakers chose . . . .”).

      Dever also expresses concern that Dr. Self’s testimony undermines the

careful distinction drawn by the United States Supreme Court between the typical

recidivist in an ordinary criminal case and the dangerous sexual offender whose

mental illness, abnormality, or disorder subjects him to civil commitment,

reasoning that, constitutionally, civil commitment requires proof that the person

have serious difficulty controlling his behavior. See Kansas v. Crane, 534 U.S.

407, 412‒13, 122 S. Ct. 867, 870 (2002). The SVP Act’s definition of “behavioral

abnormality” adequately subsumes the inquiry.        See In re Commitment of

Browning, 113 S.W.3d 851, 863 (Tex. App.—Austin 2003, pet. denied) (“A finding

that a person suffers from an emotional or volitional defect so grave as to

predispose him to threaten the health and safety of others with acts of sexual

violence entails a determination that he has ‘serious difficulty in controlling

behavior.’”).



                                           6
      Dever does not otherwise challenge the legal or factual sufficiency of the

evidence, but suffice it to say that Dr. Self testified extensively about the

foundations of his opinion that Dever suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence, identifying and

discussing in detail the various “risk factors” that he relied upon to form and to

support his opinion, including Dever’s sexual criminal history, his lifestyle

instability and criminality, his response to treatment or supervision, his age at

onset of offending, and the presence of sexual deviance. Dever disputed the

facts underlying his convictions, but his testimony was not of such a character as

to otherwise render the evidence factually insufficient, nor was Dr. Self’s reliance

in part upon the diagnosis of “other specified paraphilia, nonconsent.”

      The evidence is legally and factually sufficient to support the jury’s

sexually-violent-predator finding.   See Day, 342 S.W.3d at 213; Mullens, 92

S.W.3d at 885.     We overrule Dever’s sole issue and affirm the trial court’s

judgment.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: March 23, 2017



                                         7
