                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ________________
                              NO. 09-14-00156-CV
                              ________________

            IN RE COMMITMENT OF RANDY LEE CARR
__________________________________________________________________

                On Appeal from the 435th District Court
                     Montgomery County, Texas
                   Trial Cause No. 13-08-09025-CV
__________________________________________________________________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit appellant Randy Lee Carr as a

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

(West 2010 & Supp. 2014). A jury found that Carr is a sexually violent predator,

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

four appellate issues, Carr challenges the legal and factual sufficiency of the

evidence supporting the finding that he has a behavioral abnormality, the trial

court’s admission of certain expert testimony, and the constitutionality of Chapter

841 of the Texas Health and Safety Code. We affirm the trial court’s judgment and

order of civil commitment.
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                            ISSUES ONE AND TWO

      In issue one, Carr challenges the legal sufficiency of the evidence that he

suffers from a behavioral abnormality. In issue two, Carr challenges the factual

sufficiency of the evidence that he suffers from a behavioral abnormality. We

address issues one and two together.

      When reviewing the legal sufficiency of the evidence, we assess all of 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 a 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).

      Under the SVP statute, 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. Tex. Health &

                                         2
Safety Code Ann. § 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).

      During the trial, the jury heard Carr’s admissions that he has a conviction for

indecency with a child and multiple convictions for sexual contact with a child.

The jury also heard Carr’s admissions that he had engaged in sexual contact with

three prepubescent children and that he was sexually attracted to prepubescent

children. In addition, the jury heard testimony from forensic psychiatrist Dr. Lisa

Clayton that Carr has a behavioral abnormality that makes him likely to engage in

predatory acts of sexual violence. Clayton explained that Carr suffers from

pedophilia and antisocial personality disorder, has had both male and female

victims, minimizes his offenses, reoffended after being incarcerated, and Carr

admitted during his interview with Clayton that he still has deviant sexual

fantasies. Clayton also testified that Carr completed a nine-month sex offender

treatment program, but she opined that Carr needs more intensive treatment and is

at high risk to reoffend.



                                         3
      Carr testified at trial. When asked why he offended against one of his

victims, Carr testified, “I had stuff wrong with my thinking. I had things wrong

with me, and I know now that I didn’t know how to deal with them.” Carr testified

that he completed a nine-month sex offender treatment program and that he had

never received treatment prior to that program. Carr denied currently being

attracted to prepubescent children and stated that he currently has no sexual urges.

Carr explained that he no longer considers himself to be a sex offender. Aveliah

Funderburk, the licensed professional counselor who worked with Carr in the sex

offender treatment program at TDCJ, testified that Carr successfully completed the

program and “also was able to demonstrate, not just the knowledge, . . . but

demonstrate his ability to use what he had learned.” Funderburk opined that Carr

has learned to have empathy for his victims, has insight into his offenses, and has

not minimized his offenses. Funderburk testified that Carr has “the tools and the

ability” to control his sexual urges.

      As sole judge of the weight and credibility of the evidence, the jury could

reasonably conclude that Carr suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. See In re Commitment of

Lowe, No. 09-14-00098-CV, 2014 WL 4363624, at *2 (Tex. App.—Beaumont

Sept. 4, 2014, no pet.) (mem. op.); see also Mullens, 92 S.W.3d at 887. Viewing

                                         4
the evidence in the light most favorable to the verdict, a rational jury could have

found, beyond a reasonable doubt, that Carr has a behavioral abnormality;

therefore, the evidence is legally sufficient. See Tex. Health & Safety Code Ann.

§§ 841.002(2), 841.003(a); see also Kansas v. Crane, 534 U.S. 407, 413 (2002);

Mullens, 92 S.W.3d at 885. In addition, 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 issues one and two.

                                  ISSUE THREE

      In his third issue, Carr argues that the trial court erred by permitting Clayton

to testify that Dr. Christine Reed, a non-testifying psychologist, had determined

that Carr has pedophilia and suffers from a behavioral abnormality. Carr argues

that because Clayton did not rely upon Reed’s written report, but instead simply

reviewed it, the report “could not have been properly admitted as ‘basis’ evidence

and . . . could only have been admitted for its truth to show that another

psychologist also said that Mr. Carr has a behavioral abnormality.” Carr contends

evidence concerning Reed’s report “should have been excluded as inadmissible

hearsay[,]” and that its admission probably caused the rendition of an improper

judgment.



                                          5
      At trial, Clayton responded affirmatively when asked whether Reed wrote a

report that Clayton reviewed as a part of Carr’s case, and she also testified that all

of the records she reviewed are the type of records relied upon by other experts in

her field. Carr’s counsel objected to Clayton’s testimony about Reed’s report and

requested a limiting instruction, which the trial court gave and to which defense

counsel did not object. Carr’s counsel also objected that the evidence was “unduly

prejudicial” and “offered to prove the truth of the matter asserted.” The trial court

overruled Carr’s objections. Clayton then testified that Reed determined that Carr

suffers from a behavioral abnormality. Clayton also testified regarding the actuarial

instruments Reed had scored pertaining to Carr.

      Rule 705 of the Texas Rules of Evidence provides that an expert may

disclose on direct examination, or be required to disclose on cross-examination, the

underlying facts or data on which the expert bases an opinion. Tex. R. Evid.

705(a); In re Commitment of McCarty, No. 09-12-00083-CV, 2013 WL 3354556,

at *3 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.). If an expert

relies upon hearsay in forming her opinion, and that hearsay evidence is of a type

reasonably relied upon by such experts, such evidence is admissible. McCarty,

2013 WL 3354556, at *3. Hearsay evidence that might otherwise be permissible

under Rule 705(a) may be excluded if the danger that it will be used for a purpose

                                          6
other than explaining or supporting the expert’s opinion outweighs its probative

value or if it is unfairly prejudicial. Id. (citing Tex. R. Evid. 705(d) and In re

Commitment of Wilson, No. 09-08-00043-CV, 2009 WL 2616921, at *9 (Tex.

App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.)). We conclude that the

evidence was properly admitted under Rule 705(a) and was not unfairly

prejudicial. Therefore, the trial court did not err by permitting Clayton to testify

regarding Reed’s report. See McCarty, 2013 WL 3354556, at *3; see also Tex. R.

Evid. 705(a). We therefore overrule issue three.

                                  ISSUE FOUR

      In his fourth issue, Carr contends that this Court’s decision in In re

Commitment of Richard1 renders Chapter 841 unconstitutional. We have

previously addressed and rejected this argument. See In re Commitment of Lucero,

No. 09-14-00157-CV, 2015 WL 474604, at **9-10 (Tex. App.—Beaumont Feb. 5,

2015, no pet. h.) (mem. op.). For the same reasons outlined in Lucero, we reject

Carr’s constitutional arguments. See id. Accordingly, we overrule issue four and

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




      1
      In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852
(Tex. App.—Beaumont June 26, 2014, pet. denied) petition for cert. filed, ___
U.S.L.W. ___ (U.S. Feb. 10, 2015) (mem. op.).
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      AFFIRMED.



                                           ________________________________
                                                  CHARLES KREGER
                                                        Justice


Submitted on February 20, 2015
Opinion Delivered April 9, 2015

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




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