 
 




                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00193-CV
                            ____________________



             IN RE COMMITMENT OF BERTIS DOYLE CUPIT


_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-06-06636 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Bertis Doyle Cupit challenges his civil commitment as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2013) (the SVP statute). In two issues, Cupit challenges the legal and factual

sufficiency of the evidence supporting the jury’s verdict, which he argues is based

upon the mere ipse dixit of the State’s testifying forensic psychiatrist. We conclude

that Cupit’s issues are without merit, and we affirm the trial court’s judgment.



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      The State must prove, beyond a reasonable doubt, that a person is a sexually

violent predator. Id. § 841.062(a). Because the SVP statute employs a beyond-a-

reasonable-doubt burden of proof, under a legal sufficiency review, 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 SVP statute. In re Commitment of Mullens, 92 S.W.3d

881, 885 (Tex. App.—Beaumont 2002, pet. denied). The factfinder has the

responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and

draw reasonable inferences from basic facts to ultimate facts. Id. at 887. Under a

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.” In re Commitment of Day, 342

S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied).

      A person is a “sexually violent predator” if he is a repeat sexually violent

offender and 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 “‘[b]ehavioral abnormality’ means 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

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becomes a menace to the health and safety of another person.” Id. § 841.002(2). “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.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—

Beaumont 2003, pet. denied).

      Cupit does not challenge the sufficiency of the evidence with regard to his

status as a repeat sexually violent offender. See Tex. Health & Safety Code Ann. §

841.003(b). Cupit’s offense history includes convictions for sexually assaulting the

sixteen-year-old sister of a former girlfriend, an adult female acquaintance, and his

twelve-year-old daughter. In 1979, Cupit pled guilty to the offense of rape of a

child and was placed on probation. His probation was revoked in 1980 and he was

incarcerated until January 1984. In 1986, Cupit pled guilty to and was convicted

of aggravated sexual assault. He received a ten-year sentence but was released to

mandatory supervision in February 1990. In 1993, Cupit pled guilty to and was

convicted on three counts of aggravated sexual assault of a child, for which he

received concurrent, twenty-year sentences. The civil commitment trial preceded

his release from prison after having served his sentence.




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      Dr. David Self, a forensic psychiatrist, testified that he evaluated Cupit for a

behavioral abnormality and that he was able to form an opinion that Cupit has a

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

violence. Cupit does not challenge Dr. Self’s qualifications to render a professional

opinion on behavioral abnormality, but he contends Dr. Self provided a baseless

and conclusory opinion on which the jury could not rely in reaching its verdict.

      Our review of the appellate record reveals that Dr. Self adequately explained

the basis for his professional opinion. Dr. Self described the standard methodology

used in Texas by professionals in his field for the evaluation process, which

includes: examining the documents assembled by the Multidisciplinary Team,

interviewing the subject, and the application of structured clinical judgment that

considers risk assessment actuarial instruments that have been scored by

psychologists, the subject’s sexual criminal history, his lifestyle instability or

criminality and intimacy deficits, and issues about sex offender treatment and

supervised release.

      For this case, Dr. Self testified that he interviewed Cupit for just under two

hours, and reviewed actuarial tests and a report prepared by Dr. Daniel Murrie,

who placed Cupit in the moderate-to-high-risk group. Dr. Self considered and

explained in detail Cupit’s three sexual assault convictions, which Dr. Self found

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to be significant for increased risk due to a broad victim pool and a diverse array of

offending sexual conduct. Based on offense reports and charges that were never

prosecuted to judgment, Dr. Self considered the possibility that Cupit committed

other offenses or groomed additional victims. In considering Cupit’s volitional

capacity, Dr. Self found it noteworthy that Cupit committed the sexual assaults

against non-consenting victims despite having a consenting sexual partner at the

time of each offense and that he continued to offend even though he was on a form

of parole. According to Dr. Self, Cupit demonstrated his inability to control his

impulses when he committed an offense after twice being punished for sexual

offenses, greatly increasing the risk that he will reoffend. Dr. Self also considered

Cupit’s sexual deviance, or propensity for being excited by abnormal

circumstances.

      Using the Diagnostic and Statistical Manual of the American Psychiatric

Association, or DSM, Dr. Self diagnosed Cupit as having paraphilia not otherwise

specified-nonconsenting type and antisocial personality disorder. Dr. Self testified

that Cupit met the criteria for the nonconsenting type of paraphilia NOS because he

differentially chose a nonconsenting partner when he had a consenting partner

available to him. He also testified that Cupit met five of the seven criteria for

antisocial personality disorder, and his school history showed clear evidence of the

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presence of conduct disorder in his youth. Additionally, Dr. Self testified that he

suspected Cupit was a pedophile but, due to a lack of evidence of activity

continuing for six months or more, Cupit did not meet the diagnostic criteria for

pedophilia. Dr. Self explained that many people with unusual sexual appetities

never break the law, but Cupit was at great risk to reoffend because he displayed a

combination of acting on deviant impulses, a lifestyle that was tolerant of crime,

and disregard for the rights and feelings of others.

      Further, Dr. Self testified that Cupit demonstrated an unstable social history

that included six marriages, methamphetamine use, manufacturing alcohol in

prison, and renting out a contraband cellphone while in prison. He explained that

Cupit’s other risk factors include his lack of sex offender treatment and his belief

that he did not need it and that his absolute lack of insight and desire to change did

“not bode well for him prognostically.” Although Dr. Self doubted that Cupit

would benefit from sex offender treatment, he testified that based on Cupit’s

psychopathic tendencies, treatment would make it possible to monitor him for

risky behavior.

      Dr. Self relied on the types of records relied upon by experts in his field and

performed his evaluation in accordance with his training as a forensic psychiatrist.

Dr. Self based his opinion on facts and data he gathered from Cupit’s records, their

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interview, and Dr. Murrie’s risk assessment. He detailed the relevant facts and

explained how those facts played a role in his evaluation. Dr. Self concluded that

Cupit suffers from a behavioral abnormality as defined by the SVP statute.

Contrary to the argument in Cupit’s brief, Dr. Self’s testimony is not baseless and

conclusory.

      Cupit argues that Dr. Self’s opinion lacks a sufficient basis because Dr. Self

admitted that “paraphilia not otherwise specified nonconsensual type” is a

controversial diagnosis. Dr. Self explained that one of the chairs of the DSM

committee, a very prominent psychiatrist named Allen Frances, objected to the use

of this diagnosis because in his opinion serial rape is a crime and does not indicate

a mental disorder. According to Dr. Self, many other people considered a

preference for a coercive environment to be differential for paraphilia.

      Cupit contends Dr. Self’s opinion testimony provides no evidence from

which the jury could conclude that Cupit has serious difficulty controlling his

behavior, but Dr. Self explained in detail how Cupit’s impulsivity is demonstrated

by the pattern of sexual reoffending and irresponsibility that form the basis for his

mental disorder diagnoses. Also, Cupit argues that Dr. Self failed to demonstrate

that Cupit is likely to reoffend sexually because the doctor admitted his

methodology requires him to be subjective, but Dr. Self explained that some

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elements of subjectivity factor into anyone’s judgment but his methodology is

based upon research and literature reflected in the DSM and actuarial instruments

like the Static-99. Dr. Self acknowledged that Dr. Murrie gave an approximate

3.9% five-year recidivism rate for offenders in Cupit’s Static-99 group, but he

noted that Dr. Murrie said the Static-99 did not represent true risk and that after

taking into consideration Cupit’s sexual criminal history, antisocial background

and sexual deviance, Drs. Self and Murrie “landed on the same square pretty

much.”

      We conclude that Dr. Self’s opinion testimony represents “a reasoned

judgment based upon established research and techniques for his profession and

not the mere ipse dixit of a credentialed witness.” Day, 342 S.W.3d at 206. In its

exclusive role as the sole judge of the credibility of the witnesses and the weight to

be given their testimony, the jury resolved any conflicts and contradictions in the

evidence by believing all, part, or none of the witness’s testimony, and by drawing

reasonable inferences from basic facts to ultimate facts. Mullens, 92 S.W.3d at 887.

      The jury heard evidence of Cupit’s offenses, his testimony, and the expert’s

testimony regarding his risk for reoffending. Serious difficulty controlling behavior

can be inferred from Cupit’s past behavior and Dr. Self’s evaluation. In re

Commitment of Washington, No. 09-11-00658-CV, 2013 WL 2732569, at *6 (Tex.

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App.—Beaumont June 13, 2013, pet. denied) (mem. op.). Viewing all the evidence

in the record in the light most favorable to the verdict, we conclude that a rational

jury could have found, beyond a reasonable doubt, that Cupit is a sexually violent

predator. See Mullens, 92 S.W.3d at 885. Furthermore, weighing all of the

evidence, we conclude the verdict does not reflect a risk of injustice that would

compel ordering a new trial. Day, 342 S.W.3d at 213. We hold the evidence is

legally and factually sufficient, overrule Cupit’s issues, and affirm the trial court’s

judgment and order of civil commitment.

      AFFIRMED.



                                              ________________________________
                                                        CHARLES KREGER
                                                            Justice



Submitted on April 9, 2014
Opinion Delivered September 4, 2014

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




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