                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00485-CV
                           ____________________


        IN RE COMMITMENT OF JOSEPH TRUEMAN COUNCIL

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-01-00207 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      After a jury found Joseph Trueman Council to be a sexually violent predator,

the trial court rendered an order of civil commitment and Council appealed. See

Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2013)

(SVP statute). In six issues, Council challenges the constitutionality of the SVP

statute, the trial court’s admission and exclusion of testimony during his trial, and

whether legally and factually sufficient evidence supports the jury’s verdict.

Because we conclude that Council’s issues are without merit, we affirm the trial

court’s judgment.

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                              Constitutional Challenges

      In two of his issues, Council challenges the constitutionality of the SVP

statute. In issue one, Council contends the SVP statute, as interpreted by the Texas

Supreme Court in In re Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex.

2012), cert. denied, 133 S.Ct. 2746 (2013), is facially unconstitutional and violates

his Fourteenth Amendment right to due process. In issue two, Council argues that

the term “behavioral abnormality” is unconstitutionally vague, which he contends

relieved the State of its burden of proving some of the elements it must establish to

prove that he is a sexually violent predator.

      The record shows that Council did not present the constitutional claims that

he presents for the first time on appeal in the trial court. Because Council was

required, but failed, to first present these claims at trial, we conclude that issues

one and two were not properly preserved for our review. See In re Commitment of

McKinney, 153 S.W.3d 264, 265 (Tex. App.—Beaumont 2004, no pet.); see also

Tex. R. App. P. 33.1.

                        Admission and Exclusion of Testimony

      In issue three, Council argues the trial court erred when it refused to permit

his expert witness, Dr. Roger Saunders, to rebut various underlying facts that

concerned his convictions for committing sexually violent offenses. Arguing that

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the trial court erred by reasoning that the testimony at issue represented a collateral

attack on his criminal convictions, Council complains the trial court should not

have excluded the testimony now at issue from the jury. In his appeal, Council

suggests that he was not attempting to attack the validity of his criminal

convictions; instead, he contends that the testimony the trial court excluded would

have rebutted facts that were relied on by the State to support its claim that Council

is a pedophile. According to Council, the excluded testimony was relevant because

it tends to show that his prior sexual offenses were not “driven by a sexual

attraction to a prepubescent child or for purposes of victimization.”

      “We review a trial court’s evidentiary rulings for abuse of discretion.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); In re

Commitment of Tesson, 413 S.W.3d 514, 519 (Tex. App.—Beaumont 2013, pet.

denied). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles, or if it acts arbitrarily and unreasonably. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). But, for the trial

court and appellate courts to evaluate the merits of whether an evidentiary ruling

was either arbitrary or unreasonable, the record must substantially show what

evidence the trial court excluded. See In re Commitment of Briggs, 350 S.W.3d

362, 368 (Tex. App.—Beaumont 2011, pet. denied) (quoting In re Commitment of

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Day, 342 S.W.3d 193, 199 (Tex. App.—Beaumont 2011, pet. denied)); see also

Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a)(1)(B). “‘To properly pass on the

question of the exclusion of testimony, the record should indicate the questions that

would have been asked, what the answers would have been and what was expected

to be proved by those answers.’” Briggs, 350 S.W.3d at 368 (quoting Day, 342

S.W.3d at 199 (additional citation deleted)).

      In Council’s case, the record does not substantially demonstrate what Dr.

Saunders would have said had the trial court not sustained the State’s objections to

the testimony now at issue in his appeal. For instance, Council did not make an

offer of proof to substantially demonstrate what Dr. Saunders’s testimony would

have been had he been allowed to answer the questions at issue. See Tex. R. Evid.

103(a)(2); Briggs, 350 S.W.3d at 368. Because the record does not disclose what

Dr. Saunders would have said had he been allowed to answer the questions at

issue, the alleged errors were not properly preserved for our review on appeal. See

Tex. R. App. P. 33.1(a)(1)(B); Briggs, 350 S.W.3d at 368. We overrule issue three.

      In issue four, Council argues the trial court should have granted his motion

to strike the testimony of Dr. Lisa Clayton, a psychiatrist. According to Council,

the trial court should have excluded Dr. Clayton’s testimony because her opinions

were unreliable and conclusory. However, during trial, Council never lodged

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timely objections to Dr. Clayton’s testimony on the basis that her opinions were

unreliable, nor are we persuaded that the record demonstrates that her opinions

were wholly conclusory. 1

      An objection to reliability that requires the trial court to evaluate the expert’s

methodology must be timely. Tex. R. App. P. 33.1(a)(1) (providing that to preserve

error, a defendant’s challenge, whether by request, objection, or motion, must be

timely); In re Commitment of Grunsfeld, No. 09-09-00279-CV, 2011 Tex. App.

LEXIS 1337, at *16 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied) (mem.

op.); see also City of San Antonio v. Pollock, 284 S.W.3d 809, 817-18 (Tex. 2009).

Council has not shown that he challenged the reliability of Dr. Clayton’s testimony

at a time that would have allowed the trial court to conduct an analysis of her

underlying methodology. See id. By failing to timely challenge Dr. Clayton’s

underlying methodology, Council failed to properly preserve most of the




      1
         After the jury heard Dr. Clayton’s testimony, Council made an oral motion
to strike Dr. Clayton’s testimony on the grounds that she used an improper
methodology; additionally, the record reflects that Council filed his written motion
challenging Dr. Clayton’s methodology after the date established by the docket
control order for filing motions addressing the exclusion of expert witness
testimony. The docket control order’s deadline for filing “[a]ll motions to exclude
expert testimony and evidentiary challenges to expert testimony” was April 30,
2012, absent leave of court. The record does not reflect that the trial court granted
relief from the deadlines established in its docket control order.
                                          5
arguments he makes in issue four about the reliability of her opinions. See Tex. R.

App. P. 33.1(a).

      While Council did preserve his right to argue that Dr. Clayton’s opinions

were so conclusory that they constitute no evidence to support the jury’s

conclusions, the record shows that Dr. Clayton’s opinions cannot be characterized

as wholly conclusory, and her testimony is relevant to the State’s claim that

Council is a sexually violent predator under the SVP statute. The evidence

admitted during Council’s trial established that Dr. Clayton is licensed as a

psychiatrist. In forming her opinions about the likelihood that Council would

reoffend, Dr. Clayton explained that she interviewed Council and that she reviewed

records containing information about his sexual history. The records Dr. Clayton

reviewed are the type of records that are typically relied upon by health experts.

Dr. Clayton also explained that she assessed Council in a manner that is consistent

with her training, and she explained how she used Council’s records in forming her

opinions about his condition. For example, Dr. Clayton explained during Council’s

trial that she relied on Council’s prior convictions for sexually violent crimes in

forming her opinion that Council has a “behavioral abnormality,” and she

explained that based on her interview of Council, her review of his records, as well

as her training, she diagnosed Council with pedophilia (nonexclusive type) and

                                         6
mixed personality disorder (not otherwise specified with antisocial and narcissistic

traits). Dr. Clayton also explained how Council’s actuarial scores on psychological

tests contributed to her opinion that Council would likely reoffend. After

explaining her methodology, Dr. Clayton expressed the opinion that Council has a

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

violence.

      Council also argues that the opinions Dr. Clayton expressed at trial are

speculative because she failed to connect the general danger of sexual recidivism

to Council’s specific risk of reoffending. According to Council, Dr. Clayton’s

testimony does not establish that he is likely to engage in a predatory act of sexual

violence for the primary purpose of victimization. See Tex. Health & Safety Code

Ann. § 841.003(a)(2) (West Supp. 2013); see also id. § 841.002(5) (West Supp.

2013) (defining predatory act as an “act directed toward individuals, including

family members, for the primary purpose of victimization”).

      The record reflects that Dr. Clayton relied on Council’s convictions for six

sexually violent offenses in reaching her conclusion that Council is a “sexually

violent predator.” See id. § 841.002(8)(A) (West Supp. 2013) (defining “sexually

violent offense” to include, among other offenses, indecency with a child by

contact, sexual assault of a child, and aggravated sexual assault of a child). Dr.

                                         7
Clayton testified that Council’s diagnoses of pedophilia and mixed personality

disorder evidence that he has a condition affecting his emotional and volitional

capacity. Dr. Clayton explained the risk factors that make Council likely to

reoffend. Specifically, Dr. Clayton explained how Council’s being a victim himself

when he was a child has “helped to create the behavioral abnormality that he has

today and propagates his continued victimization of other children.” According to

Dr. Clayton, Council has a very high risk of engaging in a predatory act of sexual

violence.

      The record demonstrates that Dr. Clayton presented a professional opinion

that represents “a reasoned judgment based upon established research and

techniques for [her] profession and not the mere ipse dixit of a credentialed

witness.” See Day, 342 S.W.3d at 206. We conclude that the record does not

demonstrate that Dr. Clayton’s opinions are wholly conclusory or that they have no

foundation. Council has also not shown that the trial court abused its discretion by

admitting Dr. Clayton’s testimony that Council is a sexually violent predator who

will likely reoffend. We overrule issue four.

                            Sufficiency of the Evidence

      In issues five and six, Council argues the evidence admitted during his trial

is legally and factually insufficient to support the jury’s finding that he is a

                                          8
sexually violent predator. Council’s sufficiency arguments address the weight the

jury gave to the testimony of Dr. Clayton. According to Council, the State’s case

depended wholly on Dr. Clayton’s opinions, and he argues that Dr. Clayton’s

opinions did not sufficiently prove, beyond reasonable doubt, that he is a sexually

violent predator.

      When reviewing challenges to the legal sufficiency of the evidence in SVP

cases, 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,

each of the elements the State must prove to support a judgment ordering the

defendant’s civil commitment. In re Commitment of Mullens, 92 S.W.3d 881, 885

(Tex. App.—Beaumont 2002, pet. denied). In SVP cases, the State must prove the

elements of its case beyond a reasonable doubt. See Tex. Health & Safety Code

Ann. § 841.062(a) (West 2010).

      To prevail on his legal sufficiency issue, Council must demonstrate that no

evidence supports the jury’s finding. See Croucher v. Croucher, 660 S.W.2d 55, 58

(Tex. 1983); Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868, 873 (Tex.

App.—Beaumont 2007, pet. denied). In reviewing factual sufficiency challenges to

verdicts in SVP cases, we weigh the evidence to determine whether a verdict that is

supported by legally sufficient evidence nevertheless reflects a risk of injustice that

                                          9
compels our ordering a new trial. Day, 342 S.W.3d at 213. Council’s arguments in

issues five and six rely on the same reliability arguments he advances in issue four,

as the arguments focus on the claim that Dr. Clayton’s testimony was not reliable.

      As previously discussed in issue four, the record reflects that Council failed

to make timely objections or motions challenging the reliability of the opinions Dr.

Clayton expressed during the trial; therefore, he must now show in his appeal that

the evidence before the jury offers no basis to support Dr. Clayton’s opinions to

prevail on his legal sufficiency claim. See In re Commitment of Barbee, 192

S.W.3d 835, 843 (Tex. App.—Beaumont 2006, no pet.). “When a scientific

opinion is admitted in evidence without objection, it may be considered probative

evidence even if the basis for the opinion is unreliable.” Pollock, 284 S.W.3d at

818. “But if no basis for the opinion is offered, or the basis offered provides no

support, the opinion is merely a conclusory statement and cannot be considered

probative evidence, regardless of whether there is no objection.” Id.

      Because the record does not demonstrate that her opinions were wholly

conclusory or without any foundation, the trial court acted properly in admitting

Dr. Clayton’s opinions, and the jury properly considered her opinions to reach its

verdict. We conclude that Dr. Clayton’s testimony, together with the other

evidence before the jury, offers legally sufficient evidence to support the jury’s

                                         10
finding that Council is a sexually violent predator. See Mullens, 92 S.W.3d at 885.

We further conclude that the risk of an injustice arising from the jury’s verdict is

slight because the evidence supporting the verdict is legally sufficient to establish

that Council is a sexually violent predator. See Day, 342 S.W.3d at 213. We

overrule issues five and six.

      Because we have determined that Council is not entitled to the relief he

requests in any of his issues, the trial court’s judgment is affirmed.

      AFFIRMED.



                                            ________________________________
                                                      HOLLIS HORTON
                                                           Justice

Submitted on December 2, 2013
Opinion Delivered March 27, 2014

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




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