                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-15-00091-CV
                              ____________________

             IN RE COMMITMENT OF CARL EUGENE SMITH


                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-07-07527 CV


                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Carl Eugene Smith (Smith) as

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

(West 2010 & Supp. 2014) (SVP Act). A jury found that Smith is a sexually

violent predator, and the trial court rendered a final judgment and an order of civil

commitment. Smith timely filed a notice of appeal. In two appellate issues, Smith

challenges the legal and factual sufficiency of the evidence supporting the jury’s

finding that he is a sexually violent predator. We affirm the trial court’s judgment.




                                          1
                                EVIDENCE AT TRIAL

Admissions and Testimony by Smith

      The jury heard Smith’s responses to the State’s requests for admissions

wherein Smith admitted he had not completed or participated in sex offender

treatment while in prison, and Smith admitted to having received at least four

major and five minor disciplinaries while in prison. The State then called Smith as

an adverse witness.

      Smith testified that, at the time of trial, he was incarcerated for two counts of

indecency with a child by contact. He agreed that one offense for which he was

convicted allegedly occurred on or about May 22, 1990, and that the victim was a

seven-year-old girl, B.S.,1 who was Smith’s neighbor at the time. Smith agreed he

was convicted of fondling B.S.’s vagina, but he stated he “plea-bargained to get

this done.” Smith testified that he does not recall if it was alleged that he touched

another girl’s vagina, but Smith alleged that B.S.’s parents said he molested their

daughter because Smith would not buy cocaine for the parents as they had asked

him to do. Smith told the jury that he had been drinking that night, “[m]aybe a

couple of six-packs[,]” although he acknowledged that in his deposition he had

      1
         We identify the victims by using initials. See Tex. Const. art. I, § 30(a)(1)
(granting crime victims the “right to be treated with fairness and with respect for
the victim’s dignity and privacy throughout the criminal justice process”).

                                          2
stated it was “[t]hree six-packs.” He agreed that he received seven years’ probation

for the offense against B.S. Smith also stated that he did not receive any sex

offender treatment while he was on probation.

      Smith testified that he was later convicted for two counts of indecency with

a child for offenses against two boys, M.E. and E.A., but he said “I didn’t do it, but

I was accused of it.” Smith agreed that M.E. was about four years old and E.A. was

about five years old at the time, and that Smith lived in a garage apartment behind

the boys’ home. Smith denied that he was then living with a fourteen-year-old boy,

J.A., and stated that he thought J.A. was sixteen years old. Smith also denied

fondling M.E. and E.A., and he denied showing them “naked movies[.]”According

to Smith, M.E. and E.A.’s parents said he molested M.E. and E.A. in order to steal

everything Smith owned, including his “brand-new color T.V.” Smith stated that

he plea-bargained for a sentence of five years in prison for the offenses against

M.E. and E.A.

      Smith testified that he has never registered as a sex offender. He further

stated that, when the police came to his house regarding the offenses against M.E.

and E.A., he left and stayed with his uncle for nine months. Smith explained that

he was later arrested when he wrecked his truck. According to Smith, he adjusted

well to being in prison. But, Smith admitted that he received five major and four

                                          3
minor disciplinaries in prison for refusing to work, for using vulgar language, for

threatening to harm another offender, for refusing a housing assignment, for

possessing contraband, and for assaulting an offender without a weapon.2 Smith

explained that he received one disciplinary for his reaction to his cellmate stealing

his things because he told the prison staff “[y]ou need to move me out or I’m going

to kill him.” Smith explained that “[he] wasn’t going to kill him, but, yeah, it’s just

something you had to do to let them understand, hey, something has got to give,

you know.”

      Smith testified that he had never been in sex offender treatment, but that he

“tried to get sex offender treatment when [he] was on probation . . . [t]hey

wouldn’t give it to [him].” Smith also agreed that he said in his deposition that he

did not need sex offender treatment because “[i]f [he] ain’t did nothing, [he] don’t

need no treatment.” He further explained that he would have taken the treatment if

it would help him get parole early. When asked at trial whether he had any kind of

sex offending problem that needs to be addressed, Smith responded “[n]o, I don’t.”

He denied having answered the same question in his deposition “No, not really.

No, not anymore. I do not have no problem no more.” Smith denied feeling


      2
         We note that Smith’s testimony that he had five major and four minor
disciplinaries conflicts with his response to the State’s request for admissions,
namely, that he had four major and five minor disciplinaries.
                                          4
“compelled in any way[]” to have sex with children. He testified that he was

currently taking Zoloft for anxiety and depression and to help him “function.”

      Smith stated that, before he was in prison, he “did drugs,” “ran the roads,”

and “ran with wild women.” He explained that he would get drunk every day,

drinking one or two six-packs a day, and that he also used marijuana, LSD, and

crack cocaine. He also testified that he violated his probation by smoking pot, even

though he knew he could go to prison if he were caught. He further explained that

he had a year of alcohol and drug treatment classes.

Testimony of Dr. Clayton

      Dr. Lisa Clayton, a board-certified forensic psychiatrist, testified for the

State. Based on her training and experience, the records she reviewed, and her

interview with Smith, Clayton believes Smith suffers from a behavioral

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

      Clayton explained her methodology for assessing a behavioral abnormality,

which she testified is the methodology followed by experts in her field who do

forensic evaluations. In reaching her opinion, Clayton reviewed legal records

associated with Smith’s convictions, including police reports and the facts of his

sexual offenses, medical records, prison records, a previous psychological

evaluation of Smith including the results of assessment instruments, her face-to-

                                         5
face evaluation of Smith, and deposition testimony of Smith and of Dr. Tennison

(who served as a defense expert). Clayton explained that she relied on the records

of Smith’s sexual and nonsexual offenses in order to have “a good clear history of

the person’s overall personality and law abidingness[.]”

      Clayton testified that Smith’s first conviction was for an offense he

committed in 1990, wherein Smith was playing with the seven-year-old victim,

B.S., and another little girl in B.S.’s bedroom and he rubbed the girls’ vaginas.

Clayton said that B.S. made an outcry to her mother about what Smith had done to

B.S. and to the other girl after the mother noticed redness and swelling when she

was bathing B.S. Clayton said that, after B.S. was examined at a hospital, the

family brought a charge against Smith. Clayton testified that when she asked Smith

about this offense, he told her

            . . . he had just been over at [B.S.’s] house, and he was asked to
      look at a hole in the wall in the girl’s bedroom, and that he had been
      drinking and he spilled some beer and they got mad at him and he got
      mad and he left.

             ....

             . . . [T]he reason [B.S.’s] parents had said that he did that was
      because he wouldn’t go buy . . . 2 ounces of cocaine or 2 grams[.] . . .
      that they were retaliating against him because he wouldn’t go buy
      cocaine for -- from them.


                                         6
Clayton explained that Smith tested positive for marijuana while on probation for

this offense, and Clayton considered this significant because “when you can’t even

follow the rules when you’re on supervision in the free world, it shows an inability

to control his behavior.”

      Clayton also described Smith’s offenses against M.E. and E.A., explaining

that Smith was a friend of the boys’ parents and Smith was a babysitter for the

boys. Clayton said that M.E. told M.E.’s mother that Smith taught M.E. to “play

with his turtle[],” that Smith had put his hand and mouth on M.E.’s penis, that

Smith tried to make M.E. and E.A. “jump on each other,” and that “the 14-year-old

boy that was living with [Smith] and together with Mr. Smith had messed with

both [childrens’] penises.” Clayton said the offenses against M.E. and E.A.

happened “on multiple occasions[]” and that Smith would also watch pornography

with the boys. Clayton testified that Smith told her “the parents had said these false

charges against him because they -- they wanted his belongings.” According to

Clayton, it appeared to her that Smith’s conduct escalated after his offense against

B.S. and that Smith was grooming M.E. and E.A.

      Clayton described Smith’s adjustment to prison as “poor[,]” noting that he

had threatened to assault or kill people and that he violently attacked another

inmate for no apparent cause. Clayton stated she did not regard such

                                          7
aggressiveness as typical for someone with Smith’s offense history. Clayton

explained that Smith’s institutional adjustment was relevant to a behavioral

abnormality evaluation because it is important to know about problems following

rules and any “tendency towards violence when something doesn’t go their way.”

      Clayton diagnosed Smith with “pedophilic disorder, nonexclusive type,

sexually attracted to both male and female, adult antisocial behavior, alcohol use

disorder currently in remission due to incarceration, and adjustment disorder with

depressed mood, currently in remission due to his treatment with antidepressant

medication.” Clayton noted that a forensic psychologist had also diagnosed Smith

with pedophilia or pedophilic disorder and adult antisocial behavior. She testified

that research has shown that individuals such as Smith who have acted out against

both girls and boys have a higher likelihood to reoffend and pedophilic disorder “is

chronic and lifelong[.]” Clayton explained that adult antisocial behavior together

with pedophilic disorder is a bad combination because such a person cannot follow

rules or be socially responsible and, coupled with sexual deviancy, it makes

reoffending much more likely. Clayton testified that Smith showed certain

psychopathic traits or behaviors, including lack of remorse, failure to accept

responsibility, and enjoyment of aggression and physical violence. She also noted

that Smith “seems to be getting more aggressive as he gets older.” Clayton

                                         8
explained that although Smith’s alcohol use is in remission due to his

incarceration, because alcohol is a disinhibitor, a person who is trying not to act on

pedophilic urges may lose the ability to control his behavior after he has a couple

of beers.

      Clayton reviewed the results of the Static-99R and the Hare PCL-R

administered to Smith by a psychologist. Clayton testified that although Smith’s

results on the Static-99R reflected a moderate risk of reoffending, Clayton believed

Smith is actually at a high level of risk to reoffend. Clayton explained the Static-

99R does not take into account conduct for which a person was not prosecuted, the

number of times he may have sexually assaulted a child, or his issues with alcohol,

aggressive or violent tendencies, or escalation and grooming behavior. According

to Clayton, Smith’s score on the Hare PCL-R was indicative of some psychopathic

traits or behaviors.

      Clayton testified that the records she reviewed gave no indication that Smith

had received any sex offender treatment. Clayton does not think that Smith feels

any remorse or guilt and he has never indicated he needs sex offender treatment.

Furthermore, Smith did not show any good insight into why he committed his sex

offenses. Clayton testified that Smith “is in complete denial of his . . . sexual




                                          9
offending and doesn’t take any responsibility and pretty much blames everybody

else for his problems.”

      According to Clayton, Smith’s risk factors include sexual deviancy,

antisocial personality traits, the lack of sex offender treatment, having had both

male and female victims, a history of grooming behavior, a history of violent

behavior, the length of time over which the offending behavior occurred, a lack of

acceptance of responsibility for the offenses, and violating probation. Clayton also

stated that Dr. Murrie, a forensic psychologist, had identified sexual deviance and

“an impulsive antisocial lifestyle” as risk factors for Smith. Clayton did not

identify any positive or protective factors for Smith.

Testimony of Dr. Tennison

      Dr. John Tennison, a psychiatrist who works with addiction disorders and

forensic evaluations, testified for Smith. Tennison reached the opinion that Smith

does not have a behavioral abnormality. He explained that, in forming his opinion,

he relied on the report of the Multidisciplinary Team, results of Static-99R and

PCL-R testing, records of Smith’s sexual offenses, records of interviews of Smith,

medical records, Smith’s nonsexual criminal history, substance abuse history,

depositions of Smith and of Dr. Clayton, and his own interview with Smith.

Tennison also explained that he consulted various peer-reviewed articles in

                                          10
formulating his opinion. Tennison agreed that the method he used in conducting

his investigation and arriving at his opinion was accepted in the field of forensic

psychiatry for use in this type of case and is drawn from peer-reviewed sources.

      Tennison testified that in his interview with Smith, he covered Smith’s

offenses, his past substance use, and his institutional adjustment. Tennison found

Smith to be forthcoming and cooperative in the interview, although Smith disputed

the charges against him. Tennison said that Smith described himself as

heterosexual and that Smith denied any sexual attraction to children. Tennison

stated that Smith described “significantly greater than average alcohol use at the

time of the offenses.” According to Tennison, Smith’s disciplinaries in prison “did

not have anything to do with sexually inappropriate behavior[]” but rather “were

more of a self-defense type of situation.”

      Tennison testified that he diagnosed Smith with an alcohol use disorder in

remission. However, Tennison does not regard Smith’s substance abuse history as

relevant to whether Smith has a behavioral abnormality. Tennison explained that

he considered the possibility of pedophilic disorder and could not rule it out, but he

did not have enough information to make that diagnosis definitively. Tennison

stated that he did not find any evidence that Smith is sexually deviant today,

although he did agree that Smith’s past offenses were deviant acts.

                                         11
      Tennison testified that he reviewed results of a Static-99R completed by a

psychologist. Tennison explained that Smith received a score of “2” which

Tennison explained “is equivalent to about a 1.8 recidivism risk in the next five

years[]” and which he characterized as a “lower risk of committing an offense as

compared to the average Texas offender.” According to Tennison, the fact that

Smith had two male victims “slightly” elevates Smith’s Static-99 score, but “[n]ot

by much[.]” Tennison stated that Smith’s score on the PCL-R was “15 which is

well below the psychopathy realm.”

      Tennison testified that having victims who are unrelated children makes a

“slightly” greater risk of recidivism. According to Tennison, research had not

shown that denial or lack of remorse was a risk factor for reoffending. Tennison

stated that Smith’s social relationship history is generally positive, that Smith was

still in contact with his sister and mother, and that Smith has “more of a social

support structure and social connectedness than . . . some other inmates otherwise

have.” Tennison also testified that the fact that Smith has not been motivated to

enter sex offender treatment is not a risk factor for future recidivism, and adult

antisocial behavior is “[n]ot necessarily[]” a risk factor.




                                           12
                           SUFFICIENCY OF THE EVIDENCE

      In two issues, Smith contends that the evidence is legally and factually

insufficient to support the jury’s verdict. Smith argues that the State’s expert had

no evidence other than Smith’s prior convictions to support her conclusion that

Smith has a behavioral abnormality and that the State failed to distinguish Smith

“as someone who is dangerous beyond his control and not just a typical criminal

recidivist.”

      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). 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. 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).




                                          13
      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 Supp. 2014). 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)

(West Supp. 2014). “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).

      The jury was entitled to draw reasonable inferences from basic facts to

determine ultimate fact issues, and to resolve conflicts and contradictions in the

evidence by believing all, part, or none of the witnesses’ testimony. In re

Commitment of Barbee, 192 S.W.3d 835, 842 (Tex. App.—Beaumont 2006, no

pet.). “[P]roof of serious difficulty in controlling behavior” is required to civilly

                                         14
commit a defendant under the SVP Act. Kansas v. Crane, 534 U.S. 407, 413

(2002). Smith’s current difficulty in controlling his behavior can be inferred from

his past behavior, his own testimony, and Dr. Clayton’s testimony. See In re

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

*13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.). Dr. Clayton’s

opinion that Smith has a behavioral abnormality, as defined by the SVP Act,

necessarily entails a related finding that he has “serious difficulty controlling his

behavior.” See Almaguer, 117 S.W.3d at 505-06; see also In re Commitment of

Browning, 113 S.W.3d 851, 862-63 (Tex. App.—Austin 2003, pet. denied).

      The jury heard Smith agree that he had been convicted of sexual offenses

against a seven-year-old girl, a four-year-old boy, and a five-year-old boy. The jury

heard Smith’s admissions that he had not participated in sex offender treatment and

that he had received at least four major and five minor disciplinaries while in

prison. In addition to hearing the details of Smith’s offenses, the jury also heard

Smith’s own testimony concerning his explanations for his convictions, his prison

disciplinaries, and his substance abuse history. The jury heard Dr. Clayton’s

opinion that Smith’s risk factors for reoffending include his sexual deviance, his

pedophilia, his antisocial behavior, his prior substance abuse, his lack of sexual

offender treatment, his selection of both male and female victims for his sexual

                                         15
offenses, his history of grooming behavior, and his failure to accept responsibility

for his offenses. Considering all of the evidence in the light most favorable to the

verdict, we conclude the jury could reasonably find beyond a reasonable doubt that

Smith has a behavioral abnormality that makes him likely to engage in a predatory

act of sexual violence. See Mullens, 92 S.W.3d at 887. The record does not reflect

a risk of injustice that compels granting a new trial. See Day, 342 S.W.3d at 213.

We overrule issues one and two and affirm the trial court’s judgment.

      AFFIRMED.

                                                   _________________________
                                                       LEANNE JOHNSON
                                                             Justice

Submitted on November 3, 2015
Opinion Delivered November 25, 2015

Before Kreger, Horton, and Johnson, JJ.




                                          16
