                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-13-00496-CV
                             ____________________

         IN RE COMMITMENT OF JAMES EDWARD MUZZY
_________________________________    ______________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 13-01-00183 CV
____________________________________________                       ____________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit James Edward Muzzy as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2013). A jury found that Muzzy is a sexually violent predator

and the trial court rendered a final judgment and an order of civil commitment. In

two appellate issues, Muzzy contends that: (1) the trial court improperly denied

him the right to have an attorney present during the State’s post-petition expert

examination; and (2) the evidence is factually insufficient to support the jury’s

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



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                                 Right to Counsel

      In issue one, Muzzy contends that the trial court committed reversible error

by denying him the right to the presence of an attorney at the pre-trial expert

examination. We have held that neither the SVP statute nor the Fourteenth

Amendment requires that counsel be present during a psychiatrist’s post-petition

examination. See In re Commitment of Smith, No. 09-13-00100-CV, 2014 Tex.

App. LEXIS 667, at *10 (Tex. App.—Beaumont Jan. 23, 2014, pet. denied) (not

yet released for publication). We overrule issue one.

                                Factual Sufficiency

      In issue two, Muzzy challenges the factual sufficiency of the evidence to

support the jury’s verdict. Under 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). In an SVP case, the State must prove, beyond a reasonable doubt, that a

person is a sexually violent predator. Tex. Health & Safety Code Ann. §

841.062(a) (West 2010). 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. Id. § 841.003(a) (West

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Supp. 2013). 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).

      At trial, the jury heard evidence regarding Muzzy’s criminal history,

including his sexual offenses. Muzzy admitted that he was convicted of two counts

of indecency with a child and has not participated in sex offender treatment.

Muzzy testified that he does not believe he is a pedophile or sex offender, but

believes he was falsely accused and is a victim. He testified that he does not need

sex offender treatment, but is willing to participate in treatment. Muzzy stated that

he has not sexually offended in prison, but admitted that he has no contact with

children in prison.

      Dr. David Self, a medical doctor specializing in psychiatry and forensic

psychiatry, opined that Muzzy suffers from a behavioral abnormality. Self

identified several risk factors that increase Muzzy’s likelihood of re-offense:

sexual deviance, lifestyle instability, intimacy deficits, response to treatment and

supervision, and age. Self diagnosed Muzzy with pedophilia and antisocial

personality disorder. Self explained that pedophilia can be controlled, but that




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Muzzy had exhibited none of the factors required for controlling his behavior. Self

testified that Muzzy’s risk of reoffending is moderate to high.

      Dr. Jason Dunham, a forensic psychologist, also testified that Muzzy suffers

from a behavioral abnormality. Dunham identified antisocial personality disorder,

sexual deviance, number of victims, pattern, grooming and planning, offenses

while in a relationship, while on supervision, and in a public place, victim

characteristics, noncontact sexual offenses, lack of remorse and empathy, victim

stance, poor understanding of risk, sense of entitlement, and sexual preoccupation

as Muzzy’s risk factors. Dunham diagnosed Muzzy with pedophilia, cannabis

abuse, and antisocial personality disorder. He explained that Muzzy’s inability to

control himself is reflected by his pedophilia and his offenses committed while

under supervision, and that Muzzy’s sexual offenses, sexual deviancy, and

pedophilia support a conclusion that his emotional or volitional capacity has been

affected. Dunham scored the Static-99R actuarial test and he explained that

Muzzy’s score of two is in the low to moderate risk category, but that this score

underestimates Muzzy’s risk of re-offense. Based on his entire evaluation, Dunham

opined that Muzzy is a high level of risk.

      On appeal, Muzzy contends that the testimony from the State’s experts was

conclusory. We disagree. The record demonstrates that Self and Dunham are

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licensed in their respective fields. They interviewed Muzzy, reviewed records

regarding his background, offenses, and incarceration, relied on the types of

records relied on by experts in their fields, and performed their evaluations in

accordance with their training as professionals in their fields. The experts based

their opinions on the facts and data gathered from the records they reviewed, their

interviews with Muzzy, and the risk assessments they conducted. They explained

in detail the facts and evidence relevant in forming their opinions and how those

facts played a role in their evaluations. Both Self and Dunham concluded that

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

testimony is not so conclusory as to be completely lacking in probative value. See

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

at *14 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.).

      Muzzy further contends that the State’s experts relied on incorrect legal

standards. First, Muzzy complains of the experts’ definitions of “likely.” Self

defined “likely” as “[m]ore than a mere possibility.” Dunham explained that the

meaning of “likely” is “up to each individual evaluator or clinician[,]” but that he

believed “likely” to mean “a pretty good chance something is going to happen.”

Muzzy argues that both these definitions fail to “comport with the constitutional

requirements for involuntary civil commitment.” However, this Court has rejected

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the notion that the term “‘likely’ has a precise definition of the type associated with

any certain assigned percentage of risk.” In re Commitment of Kalati, 370 S.W.3d

435, 439 (Tex. App.—Beaumont 2012, pet. denied). Additionally, the experts’

testimony is not insufficient merely because the term “likely” is not defined by the

statute or case law. In re Commitment of Kirsch, No. 09-08-00004-CV, 2009 Tex.

App. LEXIS 5436, at *17 (Tex. App.—Beaumont July 16, 2009, pet. denied)

(mem. op.). Nor does an expert’s explanation of the term “likely,” in and of itself,

render the evidence insufficient to support a jury’s finding that a person suffers

from a behavioral abnormality. Id. at *19. Rather, an expert’s definition merely

goes to the weight that the jury might give the expert’s testimony. Id.

      Muzzy also complains of the experts’ testimony regarding volitional

impairment. Self testified that someone’s pedophilia and antisocial traits alone

would be sufficient to support a finding of behavioral abnormality if the person had

been diagnosed with pedophilia due to committing multiple offenses against

children. Dunham testified that, when determining a person’s ability to control his

behavior, one must look for evidence that the deviancy or pedophilia has stopped.

According to Muzzy, this testimony presumes that all repeat sex offenders are

volitionally impaired.




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

to cause behavior that makes him a menace is included in the determination of

whether he has “serious difficulty in controlling behavior.” In re Commitment of

Almaguer, 117 S.W.3d 500, 505-06 (Tex. App.—Beaumont 2003, pet. denied). “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.” Id. at 506. The jury could infer serious difficulty controlling behavior

based not only on the experts’ testimony, but also on Muzzy’s past behavior and

testimony. See Burnett, 2009 Tex. App. LEXIS 9930, at *13; see also In re

Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at

*20 (Tex. App.—Beaumont Jan. 15, 2009, no pet.) (mem. op.). Accordingly, we

cannot say that the experts’ testimony regarding volitional capacity renders the

evidence insufficient.

      We conclude that, as sole judge of the weight and credibility of the evidence,

the jury could reasonably conclude that Muzzy suffers from a behavioral

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

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

4681, at **6-8 (Tex. App.—Beaumont June 14, 2012, pet. denied) (mem. op.); see

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also Almaguer, 117 S.W.3d at 506; Burnett, 2009 Tex. App. LEXIS 9930, at *13;

Grinstead, 2009 Tex. App. LEXIS 228, at *16, In re Commitment of Mullens, 92

S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet. denied). That Muzzy has

serious difficulty controlling his behavior and is likely to commit predatory acts of

sexual violence directed toward individuals for the primary purpose of

victimization are implicit in this finding. See In re Commitment of Bailey, No. 09-

09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex. App.—Beaumont

Aug. 19, 2010, no pet.) (mem. op.); see also Grinstead, 2009 Tex. App. LEXIS

228, at *16. Weighing all of the evidence, the verdict does not reflect a risk of

injustice that would compel ordering a new trial. See Day, 342 S.W.3d at 213. We

overrule issue two and affirm the trial court’s judgment.

      AFFIRMED.


                                             ________________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice

Submitted on April 22, 2014
Opinion Delivered May 1, 2014

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




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