                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00498-CV
                           ____________________


      IN RE COMMITMENT OF BILLY ALEXANDER NICHOLSON

_______________________________________________________           ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-03-02428 CV
________________________________________________________           _____________

                         MEMORANDUM OPINION

      The State filed a petition to commit Billy Alexander Nicholson as a sexually

violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-841.151 (West

2010 & Supp. 2014) (the SVP statute). A jury found that Nicholson suffers from a

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

violence. See id. § 841.003(a) (West Supp. 2014). The trial court signed a final

judgment and order of civil commitment. In three issues, Nicholson maintains the

trial court erred in denying Nicholson’s motion for continuance, excluding

testimony from his expert regarding “the primary purpose of victimization,” and

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denying his motion for a directed verdict and failing to take judicial notice. Finding

no error, we affirm the trial court’s judgment.

                                 UNDERLYING FACTS

      In 2005, while Nicholson was on probation for an offense of indecent

exposure that he committed in 2004, he violated the terms of his probation when he

committed an offense of sexual assault, and his deferred adjudication probation

was revoked. In 2006, Nicholson pleaded guilty to two counts of indecency with a

child by sexual contact in 2004, and for each count Nicholson received an eight

year sentence, to be served concurrently. In 2008, he pleaded guilty to the 2005

offense of sexual assault and he received a five year sentence, to be served

concurrently with his “current prison sentence.” On or about March 7, 2013, the

State filed a Petition alleging Nicholson is a sexually violent predator and

requesting civil commitment of Nicholson. At the time of the civil commitment

trial, Nicholson was still incarcerated.

                                  APPLICABLE LAW

      The State was required to prove beyond a reasonable doubt that Nicholson is

a sexually violent predator. See id. § 841.062(a) (West 2010). A person is a

“sexually violent predator” subject to commitment if the person: “(1) is a repeat

sexually violent offender; and (2) suffers from a behavioral abnormality that makes

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the person likely to engage in a predatory act of sexual violence.” Id. § 841.003(a).

A person is a “repeat sexually violent offender” for purposes of the SVP statute if

the person is convicted of more than one sexually violent offense, and a sentence is

imposed for at least one of the offenses. Id. § 841.003(b) (West Supp. 2014). A

“sexually violent offense” includes, among other offenses, sexual assault and

indecency with a child by sexual contact. See id. § 841.002(8)(A) (West Supp.

2014); Tex. Penal Code Ann. §§ 21.11(a)(1), 22.011 (West 2011). 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.” Tex. Health & Safety Code Ann. § 841.002(2) (West

Supp. 2014). A “predatory act” is “an act directed toward individuals, including

family members, for the primary purpose of victimization.” Id. § 841.002(5).

                      DENIAL OF MOTION FOR CONTINUANCE

      In Nicholson’s first issue, he contends that the trial court erred in “failing to

grant [Nicholson’s] Motion for Continuance, denying [him] discovery[.]” Along

with his answer to the State’s commitment petition, Nicholson filed a counterclaim

for declaratory judgment and temporary injunction, asserting that the “application

of Chapter 841 to him will deny him equal protection and due process under the

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law.” Just before trial, Nicholson made an oral motion for continuance, arguing

that he was being denied certain discovery that he needed in order to pursue his

counterclaim. The State opposed the continuance, and the trial court denied the

motion.

      An appellate court will not reverse a judgment based on a denial of a motion

for continuance absent a clear abuse of discretion. BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Snider v. Stanley, 44 S.W.3d 713, 718

(Tex. App.—Beaumont 2001, pet. denied). An abuse of discretion occurs when the

trial court “‘reaches a decision so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law.’” Marchand, 83 S.W.3d at 800 (quoting Johnson

v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). A judge may grant

a motion to continue a trial under the SVP statute on the request of either party and

a showing of good cause. Tex. Health & Safety Code Ann. § 841.063 (West 2010).

      Rule 251 of the Texas Rules of Civil Procedure requires a party seeking a

continuance to show sufficient cause by affidavit, consent of the parties, or

operation of law as support for the motion. Tex. R. Civ. P. 251. “A motion for

continuance must be in writing, state the specific facts supporting the motion, and

be verified or supported by an affidavit.” Serrano v. Ryan’s Crossing Apts., 241

S.W.3d 560, 564 (Tex. App.—El Paso 2007, pet. denied). The record contains

                                         4
Nicholson’s unsworn written motion for continuance supported by an unsigned and

unsworn affidavit. Because the motion for continuance does not comply with Rule

251, we cannot say the trial court abused its discretion in denying the motion. See

Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (Failure to comply with Rule

251 creates a rebuttable presumption that the trial court did not abuse its discretion

in denying a motion for continuance.); Metro Aviation, Inc. v. Bristow Offshore

Helicopters, Inc., 740 S.W.2d 873, 874 (Tex. App.—Beaumont 1987, no writ)

(“When the provisions of rule 251 have not been satisfied, it will be presumed that

the trial court did not abuse its discretion in denying a continuance.”). Issue one is

overruled.

        EXCLUSION OF “PRIMARY PURPOSE OF VICTIMIZATION” TESTIMONY

      In his second issue on appeal, Nicholson asserts that the trial court

committed reversible error by not allowing Nicholson’s expert, Dr. Marisa Mauro,

a forensic psychologist, to testify regarding the “primary purpose of

victimization[,]” and that because the State failed to introduce evidence on this

element, his motion for directed verdict should have been granted. According to

Nicholson, an “elemental requirement” in the determination of whether an

individual is a SVP is that the behavioral abnormality must rise to a level that the

individual is likely to engage in a sexually violent act directed toward individuals,

                                          5
including family members, for the “primary purpose of victimization.” Nicholson

argues that “[i]t is not permissible to assume or imply that a jury has found that

[his] primary purpose in any of his sexual assaults were to create a victim, because

the [Texas Legislature] has required [the State to] prove beyond a reasonable doubt

that [Nicholson]’s primary purpose was to create a victim.”

      We review the exclusion of expert testimony under an abuse of discretion

standard of review. In re Commitment of Day, 342 S.W.3d 193, 218 (Tex. App.—

Beaumont 2011, pet. denied). The erroneous exclusion of evidence will constitute

reversible error when the complaining party shows that the trial court committed

error and the error probably caused the rendition of an improper judgment. State v.

Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). “[T]he

exclusion or admission [of evidence] is likely harmless if the evidence was

cumulative, or the rest of the evidence was so one-sided that the error likely made

no difference in the judgment.” Id. “[I]f erroneously admitted or excluded evidence

was crucial to a key issue, the error is likely harmful.” Id.

      In In re Commitment of Bernard, No. 09-10-00462-CV, 2012 Tex. App.

LEXIS 4681 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.), we

explained that the concept of “victimization” is implicit in the definition of

“behavioral abnormality” and assumes a victim. See Bernard, 2012 Tex. App.

                                           6
LEXIS 4681, at **6-7. We have previously concluded that “the ‘primary purpose

of victimization’ is not a specified element in section 841.003.” In re Commitment

of Simmons, No. 09-09-00478-CV, 2011 Tex. App. LEXIS 4500, at **1-2 & n.1

(Tex. App.—Beaumont June 16, 2011, no pet.) (mem. op.); In re Commitment of

Chapa, No. 09-10-00334-CV, 2011 Tex. App. LEXIS 9798, at **10-11 (Tex.

App.—Beaumont Dec. 15, 2011, no pet.) (mem. op.) (A finding that an offender is

likely to engage in a predatory act of sexual violence directed toward individuals

for the primary purpose of victimization is implicit in the finding that the offender

suffers from a behavioral abnormality.). As stated by the Texas Supreme Court,

“whether a person ‘suffers from a behavioral abnormality that makes the person

likely to engage in a predatory act of sexual violence’ is a single, unified issue.” In

re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133

S.Ct. 2746 (2013) (quoting Tex. Health & Safety Code Ann. § 841.003(a)(2)). The

State was required to prove Nicholson has a “behavioral abnormality,” and we

cannot conclude that the trial court erred in excluding the testimony at issue or in

denying Nicholson’s request for a directed verdict.

      The trial court could have reasonably concluded that Mauro’s testimony

regarding “primary purpose of victimization” confused the issues and would not

assist the jury with its assigned task under the SVP statute. See E.I. du Pont de

                                          7
Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 553-56 (Tex. 1995); see also In

re Commitment of Simmons, 2011 Tex. App. LEXIS 4500, at *17-18. A trial court

may exclude evidence when its probative value is outweighed by the danger of

issue-confusion or the danger of misleading the jury. See Robinson, 923 S.W.2d at

557.

       Furthermore, even assuming that the trial court abused its discretion by

excluding the “primary purpose of victimization” portion of Mauro’s testimony,

we cannot say that it probably caused the rendition of an improper judgment. The

State’s experts, Dr. Antoinette McGarrahan and Dr. Sheri Gaines, testified that

Nicholson suffers from a behavioral abnormality. Dr. McGarrahan, a forensic

psychologist, diagnosed Nicholson with paraphilia not otherwise specified,

exhibitionism, voyeurism, history of alcohol abuse, bipolar Type II by history, and

antisocial personality traits. She explained that based on Nicholson’s score on the

actuarial test Static-99, Nicholson has a moderate-high risk for reoffending. Dr.

Gaines, a forensic psychiatrist, also diagnosed Nicholson with paraphilia not

otherwise specified, exhibitionism, as well as mood disorder not otherwise

specified, and antisocial personality traits. Based on the risk factors identified by

Gaines and upon her review of McGarrahan’s scoring of the Static-99 on

Nicholson, Gaines testified she believes Nicholson is likely to reoffend in the

                                         8
future. Given the evidence submitted to the jury, we conclude that Nicholson has

not shown that any error in excluding that portion of Mauro’s expert testimony

regarding “primary purpose of victimization” probably caused the rendition of an

improper judgment. See Cent. Expressway Sign Assocs., 302 S.W.3d at 870. Issue

two is overruled.

       FAILURE TO GRANT A DIRECTED VERDICT OR TAKE JUDICIAL NOTICE

      In his third and final issue, Nicholson contends that the trial court erred in

failing to grant Nicholson’s motion for directed verdict because he is amenable to

traditional mental illness treatment modalities. Nicolson further argues the trial

court erred in failing to take “proper judicial notice of the issue.” On appeal,

Nicholson argues that “[i]n Section 841.001 of the Texas Health and Safety Code,

the Texas Legislature makes clear those individuals who are amenable to

traditional mental illness treatment are not to be considered as persons with

behavioral abnormalities.” He argues that because one of the three experts made no

comment as to whether Nicholson was amenable to traditional mental illness

treatment and the other two experts agreed Nicholson was amenable to some type

of traditional mental illness treatment, he is not within the scope of individuals

targeted by the SVP statute, and his motion for directed verdict should have been

granted.

                                         9
       We review the trial court’s denial of a motion for directed verdict under a

legal sufficiency standard. See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827

(Tex. 2005); In re Commitment of Hatchell, 343 S.W.3d 560, 564 (Tex. App.—

Beaumont 2011, no pet.). “Because the State has the burden of proof that is

employed in criminal cases, we use the appellate standard of review applied in

criminal cases for legal sufficiency of the evidence.” In re Commitment of Barbee,

192 S.W.3d 835, 839 (Tex. App.—Beaumont 2006, no pet.); see Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Thus, we assess all the evidence in the light

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

find, beyond a reasonable doubt, the elements required for commitment under the

statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont

2002, pet. denied). 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. at 887.

       Dr. McGarrahan did not testify regarding whether she believed Nicholson

was amenable to traditional treatment modalities. Dr. Gaines testified that

Nicholson would be amenable to cognitive behavioral therapy. Dr. Mauro testified

that, in her opinion, Nicholson is amenable to traditional mental health treatment

modalities. In asserting his motion for directed verdict, Nicholson’s counsel

                                          10
asserted that “there’s uncontroverted evidence that Mr. Nicholson is amenable to

the traditional mental health treatment modality of cognitive behavior therapy.”

The trial court overruled the motion and stated that the relevant question is not

whether he was amenable to traditional treatment but whether Nicholson “has a

behavioral abnormality today.”

      Section 841.001 is entitled “Legislative Findings.” See Tex. Health & Safety

Code Ann. § 841.001 (West 2010). The State was required to prove beyond a

reasonable doubt that Nicholson is a “sexually violent predator.”1 See id. at

841.062(a). Although Mauro testified that in her opinion Nicholson does not suffer

from a behavioral abnormality, both of the State’s experts reached a contrary

conclusion and testified that Nicholson suffers from a “behavioral abnormality” as

defined by the SVP statute. See id. at § 841.003. 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 at 887. Dr. McGarrahan and Dr. Gaines

diagnosed Nicholson with a behavioral abnormality. Whether Nicholson would or

would not be amenable to certain traditional treatment modalities would go to the

weight of the evidence that a jury might consider in making its decision of whether

or not Nicholson suffers from a behavioral abnormality. Nicholson was diagnosed

      1
          See infra p. 3.
                                        11
with paraphilia, and other antisocial traits which were, according to the State’s

witnesses, part of his behavioral abnormality which were chronic conditions. The

jury also heard testimony from Nicholson and other witnesses about the fact he

reoffended after receiving treatment.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

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

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

in a predatory act of sexual violence. We hold that the trial court did not err when

it denied Nicholson’s motion for directed verdict.

      Nicholson further argues that the trial court was required to take “proper

judicial notice of the law before the jury.” According to Nicholson, the trial court

refused to take judicial notice of language in the legislative findings in the SVP

statute and of opinions in civil commitment cases from this Court that he argues

would support his argument that because he is amenable to traditional mental

illness treatment modalities, then he is not the intended target of the Texas

Legislature under the SVP statute. Nicholson does not specify on appeal any

adjudicative facts from any particular case which he claims the trial court should

have judicially noticed. At trial, Nicholson’s counsel asked the trial court to take

judicial notice of certain opinions issued by this Court in other cases but he failed

                                         12
to identify adjudicative facts therein as required by Texas Rule of Evidence 201.

See Tex. R. Evid. 201. The trial court did not, as Nicholson argues, refuse to take

judicial notice of the SVP statute or of “the law” governing his case. The trial court

reasonably could have concluded that his request did not include adjudicative facts.

We conclude that the trial court did not err in overruling his request to take judicial

notice. Issue three is overruled.

      We affirm the trial court’s judgment.

      AFFIRMED.

                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice



Submitted on July 7, 2014
Opinion Delivered September 11, 2014

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




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