                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-13-00024-CV
                          ____________________

         IN RE COMMITMENT OF MARTIN LUTHER LOVINGS
_______________________________________________________         ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-04-03520-CV
________________________________________________________         _____________

                         MEMORANDUM OPINION

      Martin Luther Lovings challenges his civil commitment as a sexually violent

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

Supp. 2012) (the SVP statute). The State was required to prove beyond a

reasonable doubt that appellant is a sexually violent predator. See Tex. Health &

Safety Code Ann. § 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 the person

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

2010). A “behavioral abnormality” is “a congenital or acquired condition that, by

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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. 2012). “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).

      In 2003, appellant was convicted of sexual assault and aggravated sexual

assault of a child. He was sentenced to ten years in prison for each conviction, to

be served concurrently. He was serving these sentences at the time of the civil

commitment trial. A jury found that he is a sexually violent predator.

                              EXCLUSION OF EVIDENCE

      In appellant’s first issue he argues that the trial court erred in sustaining the

State’s objection to Dr. Sheri Gaines’s testimony regarding her rate of error in civil

commitment evaluations. Error may be predicated on a ruling that excludes a

party’s evidence only if the substance of the evidence was made known to the

court by the offer, or was apparent from the context within which questions were

asked. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a)(1); Ludlow v. DeBerry, 959

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S.W.2d 265, 269-70 (Tex. App.—Houston [14th Dist.] 1997, no writ). “To

preserve error concerning the exclusion of evidence, the complaining party must

actually offer the evidence and secure an adverse ruling from the court.” Perez v.

Lopez, 74 S.W.3d 60, 66 (Tex. App.—El Paso 2002, no pet.).

      Appellant’s counsel made an offer of proof covering other areas of Gaines’s

testimony, but did not ask questions regarding Gaines’s rate of error. Because

appellant failed to include questions and elicit answers regarding Gaines’s rate of

error during his offer of proof, we cannot determine whether the exclusion of

evidence was harmful. Appellant’s complaint was not preserved. See id.; see also

Tex. R. App. P. 44.1. Issue one is overruled.

                               CLOSING ARGUMENT

      In issue two, appellant asserts that the trial court abused its discretion and

committed reversible error in allowing improper jury argument. Objecting

numerous times during the State’s closing argument, appellant contended that the

State was arguing outside the scope of the evidence presented. On appeal, he

complains specifically that the trial court erred in allowing the State’s counsel to

refer to Dr. McGarrahan’s opinions and the victims’ statements.

      Appellant objected to the State’s comment to the jury that “you heard two

experts that have answered [the question of whether appellant suffers from a

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

violence] in the affirmative[.]” Appellant argues that the State referred to

McGarrahan’s testimony as though she had actually testified.

      Dr. Gaines testified that in forming her opinion she relied in part on the

opinion of Dr. McGarrahan, a doctor who served on the multidisciplinary team and

who initially concluded that appellant has a behavioral abnormality. The jury heard

Gaines testify as to her opinion and her review of McGarrahan’s opinion. The State

was summarizing the evidence presented through Gaines’s testimony.

      Appellant also objected to the State’s reiteration of facts from records and

allegations made in victim statements from appellant’s underlying convictions.

Appellant argues that the State referred to the victim statements as if they were

actually entered into evidence. Dr. Gaines testified that she reviewed this material

as part of her evaluation of appellant.

      The State clarified in its closing argument that, “[a]s you heard Dr. Gaines

testify, she reviewed and relied upon the facts of [appellant’s] offenses in reaching

[her] decision -- in reaching her conclusion.” The State’s closing arguments

challenged by appellant were summations of the evidence. Appellant has failed to

show that the State’s arguments were improper. See In re Commitment of Marks,




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230 S.W.3d 241, 247 (Tex. App.—Beaumont 2007, no pet.). Issue two is

overruled.

                           SUFFICIENCY OF THE EVIDENCE

      In his third issue, appellant contends the trial court erred by denying his

motion for directed verdict. He complains that Gaines’s testimony regarding her

diagnoses for him was conclusory. Appellant also argues that Gaines essentially

relied on the fact that appellant had repeated sexually violent offenses and other

“prior bad acts” as the basis for her testimony that he suffers from a behavioral

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

In issue four, he challenges the factual sufficiency of the evidence to support the

jury’s finding that he is a sexually violent predator.1 He maintains Gaines only

supported her conclusion that he will likely commit future sexually violent

offenses by describing his prior bad acts, and that she failed to consider the

protective factors in concluding that he is likely to sexually reoffend.

      We address issues three and four together. We review a trial court’s ruling

on a motion for directed verdict under a legal sufficiency standard. City of Keller v.

Wilson, 168 S.W.3d 802, 823 (Tex. 2005). In reviewing the legal sufficiency of the
      1
         The State argues that this Court should dispense with the factual
sufficiency review in SVP cases. We have previously rejected the State’s request to
do so. See In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont
2011, pet. denied).
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evidence, we review all of the evidence in the light most favorable to the verdict to

determine whether a rational jury could have found beyond a reasonable doubt that

appellant is a sexually violent predator. See In re Commitment of Mullens, 92

S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). In reviewing a

challenge to the factual sufficiency of the evidence in SVP cases, we must weigh

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

evidence nevertheless reflects a risk of injustice that compels ordering a new trial.

In re Commitment of Day, 342 S.W.3d at 213.

      Dr. Gaines, a forensic psychiatrist, testified appellant has a behavioral

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

Gaines’s methodology included reviewing records and conducting an interview

with appellant. The records reviewed included police records, medical records,

prison records, expert depositions and reports, and other documents. She testified

that the records are important to her evaluation because past behavior is a good

indicator of future behavior.

      Dr. Gaines diagnosed appellant with post-traumatic stress disorder,

paraphilia not otherwise specified, polysubstance dependence in remission in a

controlled environment, psychotic disorder not otherwise specified, borderline

intellectual functioning, and antisocial personality disorder. Gaines explained that

                                         6
the records indicated the appellant has a history of committing both sexual and

nonsexual offenses.

      Dr. Gaines testified that, according to the interview and the records,

appellant did not admit to the sexual offenses but claimed that the victims were

either his girlfriends or prostitutes. According to Gaines, various facts show

appellant’s inability to control his behavior in a socially acceptable way: appellant

was brazen in luring his teenage victims during the day; he planned the offenses so

that the victims could not escape; and he committed such horrible acts over a

lengthy period of time. Gaines indicated that appellant’s prison disciplinary record

shows his continued pattern of difficulty in following rules and controlling his

behavior even in the highly structured prison environment. She explained that the

way he interacted with his victims -- calling them prostitutes, giving them money,

and saying “this is how girls do things” -- shows he is confused about reality. She

described appellant’s paraphilia as a condition that is chronic and lifelong.

      Gaines identified appellant’s risk factors for re-offending: post-traumatic

stress disorder, his sexual deviancy and psychopathic traits, his age, his

hallucinations telling him to kill people, his limited IQ which results in an inability

to have the full benefit of treatment, use of violence in his offenses, his reoffending

while out on bond for the first offense, his substance dependence, and the absence

                                          7
of monitoring for medication compliance if he is discharged. She also was

concerned with appellant’s lack of remorse and his blaming of the victims. She

identified his protective factors as his steady income with Social Security

disability, some family support, and his participation in trade and therapy programs

during his incarceration. She testified that she reviewed a report by Dr.

McGarrahan, who served on the multidisciplinary team and initially evaluated

appellant. Gaines stated that although she does not administer actuarials to

individuals whom she evaluates, she reviewed the actuarials administered by

McGarrahan to appellant. According to McGarrahan’s report, appellant scored in

the “moderate-high” risk category for reoffending.

      Appellant testified that at six years of age he was in the room when his

brother murdered his mother. In the past, he has heard voices that tell him to kill

people and he has hallucinations. While in prison, he has on occasion refused his

psychiatric medications. He admitted to past substance use. According to appellant,

the two incidents for which he was convicted were consensual encounters with

prostitutes.

      Dr. Marisa Mauro, a forensic psychologist, testified for appellant. In

determining whether appellant suffers from a behavioral abnormity, she reviewed

the same type of documents that Gaines reviewed, interviewed appellant, and

                                         8
administered actuarials. Mauro diagnosed appellant with post-traumatic stress

disorder, polysubstance dependence, and borderline intellectual functioning with

possible mild retardation. She does not agree with Gaines’s diagnoses of paraphilia

not otherwise specified, sexual deviancy, psychotic disorder, or antisocial

personality disorder. Mauro administered the Static-2002R and Static-99R

actuarial tests on appellant. She explained that she evaluates the scores differently

than other experts and concluded that appellant was not likely to reoffend. She

does not believe that a person’s level of empathy or the admission of wrong-doing

in the past is important in determining future dangerousness. She identified

appellant’s risk factors for reoffending: he has two offenses and a juvenile criminal

history. She identified the positive factors: he has support from a foster family, he

has re-established family relationships, he has demonstrated the ability to form

appropriate romantic relationships, his adjustment to prison has been relatively

positive, and he is able to identify stressors in his life and the times when he needs

help. Mauro testified she does not believe appellant suffers from a behavioral

abnormality.

      The jury determines the credibility of the witnesses and the weight to be

given their testimony. In re Commitment of Mullens, 92 S.W.3d at 887. A jury may

draw reasonable inferences from the evidence. See Lacour v. State, 8 S.W.3d 670,

                                          9
671 (Tex. Crim. App. 2000). In addition to Dr. Gaines’s testimony concerning

appellant’s condition, appellant’s difficulty in controlling his behavior can be

reasonably inferred from his past behavior and his own 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.); In re Commitment of Wilson,

No. 09-08-00043-CV, 2009 WL 2616921, at *5 (Tex. App.—Beaumont Aug. 27,

2009, no pet.) (mem. op.). The jury heard evidence of the offenses, the expert

opinions and testimony regarding appellant’s risk for reoffending and appellant’s

testimony. The jury could weigh Mauro’s testimony and disregard her opinion that

appellant does not suffer from a behavioral abnormality. Sufficient evidence

supports the verdict. Issues three and four are overruled. The judgment is affirmed.

      AFFIRMED.


                                           ________________________________
                                                   DAVID GAULTNEY
                                                         Justice

Submitted on September 30, 2013
Opinion Delivered October 17, 2013

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




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