Affirmed and Memorandum Opinion filed August 16, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00669-CV

IN RE THE COMMITMENT OF JERRY WAYNE HUTYRA, APPELLANT

                    On Appeal from the 268th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 16-DCV-236479

                  MEMORANDUM OPINION

      Jerry Wayne Hutyra appeals his civil commitment under the sexually violent
predator statute (the “SVP statute”). See Tex. Health & Safety Code §§ 841.001-
.153. To show that a person is a sexually violent predator, the State must prove that
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). In his first issue, Hutyra contends the trial court erred
by denying his challenges for cause to certain venire members. In his second issue,
Hutyra challenges the legal and factual sufficiency of the evidence to support a
finding that he suffers from a behavioral abnormality making him likely to engage
in a predatory act of sexual violence. We affirm.

                                          Background

      In August 1996, Hutyra pleaded guilty to the aggravated sexual assault of the
nine-year-old daughter of his live-in girlfriend and was placed on deferred
adjudication community supervision for ten years. In August 1999, Hutyra pleaded
guilty to the aggravated sexual assault of the twelve-year-old daughter of another
girlfriend. We will refer to the two child victims as Nadine and Alicia.1 In December
1999, pursuant to a plea bargain agreement, the trial court sentenced Hutyra to
twenty years’ confinement in the Texas Department of Criminal Justice, Institutional
Division, for each offense. Hutyra was expected to completely discharge his
sentence on October 31, 2019. Anticipating Hutyra’s discharge, the State of Texas
petitioned the Fort Bend County District Court to declare Hutyra a sexually violent
predator (“SVP”) and to civilly commit him for treatment and supervision. Hutyra
demanded a jury trial, and his trial commenced in February 2017.

A.    Voir Dire

      During jury selection, the State informed the venire panel that the jury would
be tasked with determining whether Hutyra is an SVP. Some of the venire members
vacillated when asked whether they could listen to the evidence, follow the law, and
reach a verdict after hearing about sexual offenses against a child or pedophilia.
Counsel for the State asked, “If you hear either ‘pedophilia’ or ‘child victims,’ [raise
your cards if you agree that] you cannot listen to the evidence, follow the law, and




      1
          To protect the children’s identities, we refer to them by pseudonyms.
                                                 2
reach a verdict in this case?” Several venire members raised their cards, including
member number 42.

       When Hutyra’s counsel examined the venire panel, she asked follow-up
questions on the same topic:

             If you hear evidence about a sex offense against a child or you
       hear about pedophilia — and for those of you who don’t know,
       pedophilia is being attracted to individuals who are prepubescent —
       basically, give or take, under the age of 13 — and if you can’t be fair if
       you hear about a pedophilia diagnosis or if you hear about a child
       victim, if you could just raise your card and keep it up.
              How many of you feel if you hear evidence about child victims
       or you hear about a pedophilia diagnosis, you feel like this isn’t the case
       for me, I’m not going to be able to listen to the Court’s instructions, I’m
       not going to be able to listen to the evidence, and I’m not going to be
       able to render a impartial verdict in this case? If you feel that way, if
       you could just raise your card for me.
Both venire members 37 and 42 raised their numbers, as did about three-quarters of
the venire panel.

       In response to the overwhelming number of panel members who felt they
could not be fair in the face of evidence of pedophilia or child victims generally, the
trial court clarified the issue:

              You need to understand that you’re not going to be asked
       whether the person committed an offense of sexual assault of a child or
       sexual assault of anybody else. You’re going to be asked the two
       questions that the State has shown you already; and in that testimony,
       there will be testimony to the effect that -- or they will present testimony
       to you or try to present testimony to you that an offense has occurred.
       Whether the offense has occurred or not is not going to be a decision
       that you will have to make. The only decision you’re going to have to
       make is the answers to the two questions that are going to be asked.
             Now, you’re not here to play merry-go-round or answer simple
       questions. You’re here to answer really tough questions, and it’s going
                                            3
      to take 12 of you to reach an answer. So the question about whether
      you want to hear this information or not is not before you. The question
      is: The fact that an offense could be presented to you, will that mean
      that you cannot answer those questions? Now, if you cannot, raise your
      cards.

Neither member number 37 nor member number 42 raised their cards.

      During the selection process, Hutyra challenged numerous potential jurors,
including members 37 and 42, on the basis that they could not render an impartial
verdict in this case. The trial court denied thirteen of Hutyra’s challenges for cause,
including challenges to members 37 and 42. Hutyra exercised his total allotment of
peremptory strikes against ten venire members whom he unsuccessfully challenged
for cause. Hutyra sought two more peremptory strikes to use on members 37 and
42. The trial court denied Hutyra’s request for additional strikes, and members 37
and 42 both served on the jury.

B.    Trial

      Hutyra testified that he has been in prison since 2000. He explained that,
when he was dating Nadine’s mother, their sexual relationship went “downhill.” He
sexually assaulted Nadine because he was depressed and lonely and had poor
judgment. He was charged with aggravated sexual assault of Nadine and placed on
deferred adjudication probation. While on probation, Hutyra attended mandatory
sex-offender treatment for about three years. However, he violated the rule requiring
him to stay away from children and engaged in sexually prohibited conduct,
including sexual assault, against Alicia. He explained his offenses against Alicia in
a similar fashion as his offenses against Nadine: his sexual relationship with Alicia’s
mother went downhill, he became depressed, and he sexually assaulted Alicia.



                                          4
       While in prison, Hutyra has behaved very well. At the time of his trial, he
was enrolled in sex-offender treatment at TDCJ and described the treatment as much
better than his previous treatment. He expressed a desire to learn all he can and to
address his sexual attraction to children. He stated his goal as trying to get his sexual
urges regarding female children under control. He acknowledged that being around
female children would be a high risk situation for him.

       The State presented three experts, psychiatrist Dr. David Self and
psychologists Dr. Jason Dunham and Dr. Stephen Thorne.2                       Dr. Thorne was
originally retained in this case to perform a pre-petition evaluation of Hutyra.3
During Dr. Thorne’s interview with Hutyra, Hutyra acknowledged that his sexual
assaults against both Nadine and Alicia were not “one time things.” Hutyra reported
to Thorne that he had engaged in sexually prohibited conduct, including assault,
against Nadine several times over a two-year period and that he also engaged in
sexually prohibited conduct, including assault, against Alicia repeatedly for well
over a year before he was caught. During his evaluation with Dr. Thorne, Hutyra
described several sexual incidents against Nadine and detailed fifteen sexual
incidents involving Alicia.

       Dr. Self, who has performed about 90 behavioral abnormality evaluations
since 2009, identified numerous risk factors for Hutyra, including his pedophilic
disorder, that he offended while on probation, that his sexual offenses were
committed against non-related and non-familial victims, that he groomed both of his
victims, and that he has failed to complete sex-offender treatment.                     Dr. Self

       2
           Thorne appeared only via videotaped deposition.
       3
          See Tex. Health & Safety Code § 841.023 (providing for the assessment of an inmate
identified as a possible SVP by an expert for a behavioral abnormality that makes the inmate likely
to engage in a predatory act of sexual violence).
                                                5
expressed concerns about the strength of Hutyra’s attraction to prepubescent girls as
Hutyra engaged in sexually prohibited conduct against both girls repeatedly while
he had appropriate sexual relationships with their mothers. Hutyra’s offense against
Alicia while under close scrutiny and on probation for his offense against Nadine
highlights Hutyra’s inability to control his behavior. Dr. Self classified Hutyra’s
good prison behavior and the fact that Hutyra has a good family support system,
which would ordinarily be positive factors that reduce risk for sexually reoffending,
as “non-negative.” According to Dr. Self, Hutyra had the same family support
system when he offended against both Nadine and Alicia, so these factors did not
change his opinion. Although Hutyra was enrolled in the TDCJ sex-offender
treatment program, Dr. Self opined that someone with Hutyra’s history cannot “fix”
his problem in a few months.       Dr. Self opined that Hutyra’s current risk of
reoffending is moderate to high, which makes him a menace to the health and safety
of others.

      According to Dr. Dunham, Hutyra’s risk factors included manipulating his
therapist and probation officers while on probation, assaulting Alicia after having
been caught and punished for assaulting Nadine, offending while under treatment,
offending while in appropriate consensual sexual relationships, offending against
multiple victims multiple times, and his ingrained pedophilic disorder. Dr. Dunham
also identified several positive factors that reduced Hutyra’s risk for sexually
reoffending, including Hutyra’s age and his extraordinarily good behavior in prison.
However, Dr. Dunham did not believe that the nine-month TDCJ sex-offender
treatment program in which Hutyra participated would lower Hutyra’s risk of
reoffending. Dr. Dunham opined that Hutyra is predisposed to commit a sexually
violent offense and is a menace to the health and safety of others.


                                          6
       Hutyra presented the expert testimony of psychologist Dr. Marisa Mauro. Dr.
Mauro, a licensed sex-offender treatment provider, has performed over 100
evaluations for respondents in SVP cases. Dr. Mauro agreed with Drs. Self and
Dunham that Hutyra suffers from a pedophilic disorder. She also agreed that
Hutyra’s risk factors included that he is a sexual recidivist, had non-related victims,
suffers from pedophilic disorder, and reoffended while on probation for a sexual
offense. She identified several positive factors, including Hutyra’s age, that he will
complete the TDCJ sex-offender treatment program before he is released, that
Hutyra has a good support system, his good institutional adjustment, and Hutyra’s
plan for moving forward when he is released from prison. Based on Dr. Mauro’s
evaluation of Hutyra, she opined that he did not suffer from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence.

       After hearing the evidence and argument of counsel, the jury found that
Hutyra is a sexually violent predator. Based on this verdict, the trial court signed a
final judgment and an order of civil commitment. Hutyra filed a motion for new
trial, challenging the trial court’s denial of his challenges for cause and the legal and
factual sufficiency of the evidence; this motion was overruled by operation of law.
This appeal timely followed.

                                    Challenges for Cause

       In his first issue, Hutyra asserts that the trial court erred by denying his
challenges for cause to venire members 37 and 42.4



       4
           As noted above, after the trial court denied Hutyra’s challenges for cause to other venire
members, he used his peremptory strikes on those members. Hutyra then identified members 37
and 42 as objectionable jurors he would have struck from the panel had the trial court granted his
challenges for cause. He sought additional peremptory strikes to use on these venire members, but
the trial court denied his request. These two venire members sat on the jury. Thus, Hutyra properly
                                                   7
       Under Texas Rule of Civil Procedure 504.2, a party may challenge potential
jurors for cause by objecting “to a juror alleging some fact, such as bias or prejudice,
that disqualifies the juror from serving in the case or that renders the juror unfit to
sit on the jury.” Tex. R. Civ. P. 504.2(d). Bias is an inclination toward one side of
an issue rather than to the other. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d
743, 749 (Tex. 2006). Disqualification of a venire member extends to bias or
prejudice against the subject matter of the suit as well as against the litigants. Id.
To disqualify a potential juror for bias as a matter of law, the record must show
conclusively that the potential juror’s state of mind led to the natural inference that
he or she would not act with impartiality. Id. An equivocal expression of bias,
however, is not grounds for disqualification as a matter of law. Cortez ex rel. Estate
of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 94 (Tex. 2005) (“Many
potential jurors have some sort of life experience that might impact their view of a
case; we do not ask them to leave their knowledge and experience behind, but only
to approach the evidence with an impartial and open mind. . . . Any bias [the
challenged juror] did express was equivocal at most, which is not grounds for
disqualification.” (emphasis added)).

       We review a trial court’s rulings on challenges for cause for an abuse of
discretion, in light of the entire jury selection process. In re Commitment of Talley,
522 S.W.3d 742, 747 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing Cortez,
159 S.W.3d at 92-93). Under this familiar standard, a trial court abuses its discretion
when it acts arbitrarily or unreasonably and without reference to guiding rules or
principles, or when it misapplies the law to the facts of the case. Id. Further, the


preserved his jury selection complaint for our review. See, e.g., Cortez ex rel. Estate of Puentes v.
HCCI-San Antonio, Inc., 159 S.W.3d 87, 90 (Tex. 2005); Escamilla v. State, 143 S.W.3d 814, 821
(Tex. Crim. App. 2004).
                                                 8
Supreme Court of Texas has explained that, because the statutory standards for bias
or prejudice are the same in civil and criminal cases, voir dire standards should
remain consistent. Hyundai Motor Co., 189 S.W.3d at 753.

       As detailed above, venire members 37 and 42 raised their cards in response to
a query about whether they “felt like” they would not be able to render an impartial
verdict in a case involving “evidence about child victims” or “a pedophilia
diagnosis.”5 But when the trial court informed the venire panel that the jury would
not be determining whether Hutyra suffers from pedophilia or committed offenses
against children, both venire members 37 and 42 indicated that they would be able
to answer the questions presented to them in this case.

       The First Court of Appeals recently addressed a similar issue in an SVP case.
See Talley, 522 S.W.3d at 744-48. In that case, several venire members indicated a
bias against a person diagnosed with pedophilia. Id. at 747. The trial court followed
up, instructing the panel about their obligation to consider all of the evidence
presented; all of the panel members except member 56 indicated that they could
follow the trial court’s instruction. Id. Venire member 56 indicated when questioned
that she would conclude, based on someone’s diagnosis as a pedophile, that the
person had a behavioral abnormality. Id. at 748. However, this panel member’s
responses to earlier questions indicated that she could set aside any bias regarding
Talley’s prior convictions and evaluate the evidence fairly. Id. On appeal, as here,
Talley asserted the trial court abused its discretion in denying his challenge for cause



       5
         “Bias is not established as a matter of law merely because venire members raise their
hands in response to a general question addressed to the entire panel.” Taber v. Roush, 316 S.W.3d
139, 165 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that juror’s raising hand in
response to question about difficulty giving same weight to out-of-state experts as in-state experts
did not establish bias as a matter of law).
                                                 9
to this venire member. Id. In overruling Talley’s jury complaint, our sister court
reasoned:

      The parties did not further follow up with venire member 56
      individually to determine whether she no longer could fairly consider
      the case. The trial court was in the best position to evaluate the venire
      member’s answers and determine whether the juror could fairly
      consider the evidence presented. Because the record demonstrates that
      venire member 56 gave equivocal responses as to whether she harbored
      a disqualifying bias, we hold that the trial court acted within its
      discretion in denying Talley’s challenge for cause.
Id.

      Similarly, here, venire members 37 and 42 responded equivocally.             As
detailed above, although they indicated they harbored a bias against someone
diagnosed with pedophilia, they also agreed that they could serve on the jury and
answer the questions posed. Hutyra did not follow up with these venire members to
determine whether they could fairly consider the evidence in this case. Cf. Gonzales
v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011) (“To establish that the
challenge for cause is proper, the proponent of the challenge must show that the
venireperson understood the requirements of the law and could not overcome his
prejudice enough to follow the law.”). We conclude that, as in Talley, the trial court
was in the best position to evaluate these venire members’ answers and determine
whether they could fairly consider the evidence presented. Thus, we cannot say the
trial court abused its discretion in denying Hutyra’s challenges for cause to venire
members 37 and 42.

      For the foregoing reasons, we overrule Hutyra’s first issue.




                                         10
                            Sufficiency of the Evidence

      In his second and third issues, Hutyra challenges the legal and factual
sufficiency of the evidence to support the jury’s finding that he is an SVP.

      Because the State is required to prove beyond a reasonable doubt that a person
is an SVP, we review an appeal from such a proceeding using the same legal-
sufficiency standard applicable to criminal cases. See In re Commitment of Harris,
541 S.W.3d 322, 327 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Under this
standard, we review the evidence in the light most favorable to the verdict to
determine whether a rational fact finder could have found, beyond a reasonable
doubt, the elements required for commitment. Id. The jury is the sole judge of the
witnesses’ credibility and of the weight to be given to their testimony. Id. We
review the factual sufficiency of the evidence by considering all of the evidence in
a neutral light and asking whether a jury was rationally justified in finding that a
person is an SVP beyond a reasonable doubt. See id. Under this standard, we
consider “whether a verdict that is supported by legally sufficient evidence
nevertheless reflects a risk of injustice that would compel ordering a new trial.” Id.

      To establish that Hutyra is an SVP, the State was required to prove beyond a
reasonable doubt that Hutyra 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. See Tex. Health & Safety Code §§ 841.003(a); 841.062(a). Hutyra only
challenges the second element here: that he suffers from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence. 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). “‘Predatory act’ means an act directed toward
                                         11
individuals, including family members, for the primary purpose of victimization.”
Id. § 841.002(5). Offenses identified in the SVP statute as “sexually violent
offenses” are, by their nature, “committed for the primary purpose of victimization.”
In re Commitment of White, No. 14-17-00115-CV, 2018 WL 344063, at *10 (Tex.
App.—Houston [14th Dist.] Jan. 9, 2018, no pet.) (mem. op.).

       Hutyra contends that the following facts render the evidence legally and
factually insufficient to show he suffers from a behavioral abnormality: (1) he does
not have an antisocial personality disorder and he is not a psychopath; (2) he scored
at average risk on the Static-99R actuarial test, which is designed for assessing
sexual recidivism; (3) he accepts responsibility for what he did; and (4) he is “on
track” to complete the sex-offender treatment program offered by TDCJ. We
disagree that these facts render the evidence legally or factually insufficient.

       First, Hutyra presents no authority to support his position that the evidence is
insufficient to support the jury’s finding because he was not diagnosed with an
antisocial personality disorder or determined to be a psychopath.6 Instead, the only
question a jury must answer in a civil commitment trial is whether a person suffers
from a behavioral abnormality that makes that person predisposed to committing
sexually violent acts. See In re Commitment of Bohannan, 388 S.W.3d 296, 306
(Tex. 2012). Although a medical diagnosis of a person’s mental health may inform
an assessment of whether that person has such a behavioral abnormality, determining
whether a person suffers from a predisposing condition does not rest solely on such
a diagnosis. See id.; In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL


       6
         Hutyra relies on the fact that the SVP statute calls for psychopathy testing. Section
841.023(a) applies to the pre-petition administrative screening process and is designed to assist
TDCJ in its initial determination whether an inmate scheduled for release may be a sexually violent
predator. See Tex. Health & Safety Code § 841.023(a).
                                                12
2931852, at *2 (Tex. App.—Beaumont June 26, 2014, pet. denied) (mem. op.); see
also In re Commitment of H.L.T., —S.W.3d—, 2017 WL 4413435, at *3 (Tex.
App.—Waco Oct. 4, 2017, pet. denied) (explaining that the State is not required to
have a testifying expert test for psychopathy). In short, Hutyra’s contention that the
evidence is insufficient to support the jury’s finding because the experts in this case
determined that he does not suffer from an antisocial personality disorder or
psychopathy lacks merit.

       Regarding Hutyra’s score on the Static-99R test, this test considers risk factors
for sexually reoffending and uses them to assess the relative risk of recidivism. The
experts in this case all agreed that it does not test for a behavioral abnormality.
Hutyra’s expert, Dr. Mauro, testified that this score, standing alone, does not allow
for an estimation of risk. She explained that a person may score the lowest possible
score on this test and still have a behavioral abnormality. Indeed, the experts all
agreed that the Static-99R test does not consider certain risk factors that are relevant
to Hutyra. Thus, Hutyra’s assertion that his score on this test renders the evidence
insufficient fails.

       Hutyra’s other bases for challenging the sufficiency of the evidence are
likewise unavailing. Although Hutyra claims he has “accepted responsibility” for
his actions, he disagreed that he suffers from pedophilia. And by Hutyra’s own
admission, he committed numerous sexual offenses against his two prepubescent
victims. At the time he committed the charged offenses against Nadine and Alicia,
Hutyra knew what he was doing was illegal and that he could go to prison.
Nonetheless, he engaged in prohibited sexual conduct against these girls multiple
times. Moreover, he sexually offended against Alicia while he was on community
supervision for his offense against Nadine and enrolled in a sex-offender treatment


                                          13
program. At his trial, he testified that his sexual urges toward female children were
“not all the way” under control, but he was “trying to get” them under control.

      In short, the jury heard substantial evidence contradicting Hutyra’s position.
For example, the experts all agreed that Hutyra suffers from pedophilia and that this
is a chronic condition that represents a risk factor for reoffending. Both Drs.
Dunham and Self agreed that Hutyra’s pedophilia rises to the level of a behavioral
abnormality. Dr. Self opined that Hutyra’s pedophilic disorder is a congenital or
acquired condition that makes him a menace to the health and safety of others and
predisposes him to commit sexually violent acts. Similarly, Dr. Dunham opined that
Hutyra’s risk factors are evidence of his affected emotional and volitional capacity,
and that they make him a menace to the health and safety of others. In other words,
both of these experts agreed that Hutyra is predisposed to commit a sexually violent
offense. Even Hutyra’s expert, Dr. Mauro, agreed that Hutyra has a condition, but
she opined that his condition does not make him likely to commit a sexually violent
offense today.

      Jurors are the sole judges of the credibility of witnesses and the weight to be
given to their testimony. Harris, 541 S.W.3d at 327. By their verdict, the jurors
chose to assign more weight to the testimony of the State’s experts. Viewing the
evidence in the light most favorable to the verdict, a rational jury could conclude
beyond a reasonable doubt that Hutyra suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. See id. at 330; see
also Tex. Health & Safety Code §§ 841.003(a); 841.062(a). And considering this
evidence in a neutral light, we conclude that the jury was rationally justified in
finding that Hutyra is an SVP beyond a reasonable doubt. See Harris, 541 S.W.3d
at 330. Our review of the record does not reflect a risk of injustice warranting a new


                                         14
trial. Accordingly, the evidence is both legally and factually sufficient to support
the jury’s finding.

      For the foregoing reasons, we overrule Hutyra’s second and third issues.

                                      Conclusion

      Having overruled Hutyra’s three issues, we affirm the trial court’s judgment.




                                         /s/    Kevin Jewell
                                                Justice



Panel consists of Justices Jamison, Wise, and Jewell.




                                           15
