 
 




                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-15-00216-CV
                             ____________________


         IN RE COMMITMENT OF JAMES DOUGLAS STEWART

________________________________________________________________________

                     On Appeal from the 435th District Court
                          Montgomery County, Texas
                        Trial Cause No. 14-10-10874-CV
________________________________________________________________________

                            MEMORANDUM OPINION

      James Douglas Stewart appeals from a judgment on a jury verdict that resulted

in his civil commitment as a sexually violent predator. See Tex. Health & Safety

Code Ann. § 841.081(a) (West Supp. 2016). In four issues brought on appeal,

Stewart argues that as amended in 2015, Chapter 841 of the Texas Health and Safety

Code is facially unconstitutional, that the evidence is legally and factually

insufficient to support the jury’s verdict, and that the trial court erred in allowing the

State to question him about an offense that resulted in a conviction because the State



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lacked a good-faith basis for the questions. We overrule Stewart’s issues and affirm

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

                             Constitutional Challenge

      In his first issue, Stewart argues that Chapter 841 of the Texas Health and

Safety Code, as amended in 2015 after the date of his trial, is facially

unconstitutional because it requires all persons adjudicated as sexually violent

predators to live in a “‘total confinement facility’ with the ‘possibility’ of ‘less

restrictive’ housing at some unspecified future date depending on the person’s

progress in treatment.” See Tex. Health & Safety Code Ann. § 841.0831(b) (West

Supp. 2016). He argues that violating certain requirements of civil commitment

bears severe criminal penalties, and as amended, the statute fails the “intent-effects

test” utilized by the Texas Supreme Court in In re Commitment of Fisher. See 164

S.W.3d 637, 645–53 (Tex. 2005).

      We addressed this issue in In re Commitment of May. See 500 S.W.3d 515,

520–24 (Tex. App.—Beaumont 2016, pet. filed). In May, we considered several

factors in determining whether the amended statute is punitive, including: (1)

whether the sanction involves an affirmative disability or restraint; (2) whether it has

historically been regarded as a punishment; (3) whether it comes into play only on a

finding of scienter; (4) whether its operation will promote the traditional aims of

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punishment—retribution and deterrence; (5) whether the behavior to which it applies

is already a crime; (6) whether an alternative purpose to which it may rationally be

connected is assignable for it; and (7) whether it appears excessive in relation to the

alternative purpose assigned. Id. We held that “as in Fisher, taken together, the

factors considered in determining whether this civil statute, as amended, is punitive

point to a conclusion that a commitment proceeding under Chapter 841 of the Texas

Health and Safety Code, as amended in 2015, is a civil matter.” Id. at 524. We

decline to revisit our holding in May, and we reiterate that Chapter 841 of the Texas

Health and Safety Code, as amended in 2015, is neither punitive nor facially

unconstitutional. See id.

      We considered whether the statute as amended is unconstitutionally punitive

for requiring total confinement and severe criminal penalties in In Re Commitment

of Terry. See No. 09-15-00500-CV, 2016 WL 7323299, at *10 (Tex. App.—

Beaumont Dec. 15, 2016, no pet. h.) (mem. op.). We held that

      [t]aken as a whole, the 2015 amendments reduce the possibility that a
      person subject to an SVP civil commitment order is punished criminally
      for violation of that order. Moreover, “the United States Supreme Court
      has never held that the imposition of criminal penalties for violating a
      civil regulatory scheme ipso facto renders an act punitive, rather than
      civil.” See Fisher, 164 S.W.3d at 652–53 (citing Smith v. Doe, 538 U.S.
      84, 90, 105–06 (2003) (holding that Alaska Sex Offender Registration
      Act was civil even though a knowing failure to comply would subject
      the offender to criminal prosecution) and Hawker v. New York, 170 U.S.
      189, 192–94, 200 (1898) (holding that New York statute prohibiting
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      felons from obtaining licenses to practice medicine did not violate the
      ex post facto clause, despite criminal penalties imposed for failure to
      comply and explaining that “such legislation is not to be regarded as a
      mere imposition of additional penalty, but as prescribing the
      qualifications for the duties to be discharged and the position to be
      filled”)).

Id. Stewart has not met his burden of providing “the clearest proof” that the amended

statute is so punitive in either purpose or effect as to negate the stated Legislative

intent that it be civil. See Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (quoting

United States v. Ward, 448 U.S. 242, 248–49 (1980)). We overrule issue one.

                            Sufficiency of the Evidence

      Issues two and three challenge the legal and factual sufficiency of the evidence

supporting the jury’s verdict that Stewart is a sexually violent predator. Both issues

were preserved through a motion for new trial. On appeal, Stewart argues the jury’s

verdict is based on two sexual offenses committed approximately twelve years apart

and an expert’s opinion that lacks an adequate basis.

      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 civil commitment as a sexually

violent predator. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—

Beaumont 2002, pet. denied). As the factfinder, the jury has the responsibility to

fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable
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inferences from basic facts to ultimate facts. Id. at 887. Under a factual sufficiency

review in a civil commitment proceeding, 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 a civil commitment proceeding under Chapter 841 of the Texas Health and

Safety Code, 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

offender1 and suffers from a behavioral abnormality that makes him likely to engage

in a predatory act of sexual violence. Tex. Health & Safety Code Ann. § 841.003(a)

(West Supp. 2016). A “[b]ehavioral 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.

2016). “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


                                                            
              1
         Stewart does not challenge his status as a repeat sexually violent offender
in his appellate brief.
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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).

              A psychiatrist, Dr. Sheri Gaines, testified that in her opinion, Stewart has a

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

violence. Stewart argues Dr. Gaines’s opinion provides no support for the jury’s

verdict because her diagnosis of “paraphilic disorder” is neither one of the eight

specified paraphilic disorder diagnoses nor the “unspecified paraphilic disorder” in

the American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders, Fifth Edition, or DSM–V. Dr. Gaines stated that Stewart’s sexual

deviancy is “exhibitionistic disorder” and “paraphilic disorder.” According to Dr.

Gaines, “[t]hat diagnosis covers his offending against non-consensual victims” and

“covers the violence, the nonconsensual nature of those offenses.” We conclude that

Dr. Gaines identified an unspecified paraphilic disorder. Stewart’s claim that Dr.

Gaines provided false testimony is not supported by the record.2

                                                            
              2
        Stewart argues that for a psychiatrist to diagnose an unspecified paraphilic
disorder, one of the eight specified paraphilic disorders must predominate but not
meet the full diagnostic criteria. This proposition is not stated in the article he cites.
See First, Michael B., DSM-5 and Paraphilic Disorders, 42 J. Am. Acad. Psychiatry
& Law 191, 191–201 (June 2014) (available at http://www.jaapl.org/
content/42/2/191.full and last viewed in January 2017). No expert testified on
Stewart’s behalf regarding the criteria for a diagnosis under the DSM-V.
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       Dr. Gaines considered facts and details from police reports and victim

statements in forming her opinion. Stewart argues Dr. Gaines’s consideration of this

material was improper because Stewart did not have an opportunity to challenge the

contents of his criminal records. We find no support in the record for this particular

argument. Although he claims that he did not have an opportunity to challenge the

contents of the records, the State filed a pre-trial notice of the filing of Stewart’s

records. Additionally, the record includes a Rule 11 agreement that Stewart’s

medical files would be available for inspection, and the parties agreed to disclose the

medical material relied on by their experts through responses to disclosure. Stewart

does not direct the Court to a record cite where he brought the State’s failure to

disclose Dr. Gaines’s reliance on police reports and victim statements to the attention

of the trial court.

       Stewart contends that Dr. Gaines applied the risk factors of denial and

minimization to Stewart, and he argues those factors were established through cross-

examination to have no scientific support. Dr. Gaines stated that “[t]he two big

categories of risk factors, the two big umbrellas of risk factors, are the sexual

deviance and the unstable lifestyle.” She explained that Stewart’s sexual deviance is

demonstrated through his convictions for indecency with a child by sexual contact

and attempted aggravated sexual assault and through his prison disciplinary history

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of twenty-eight instances of public masturbation and twelve for exposure. According

to Dr. Gaines, Stewart was terminated from sex offender treatment in August 2014

for exposure. Dr. Gaines added that the broad potential victim pool and the extreme

violence of the assaultive offense were additional risk factors. Although she did not

diagnose Stewart as a psychopath, she explained that psychopathic characteristics

such as lack of remorse, poor insight, lack of empathy, and unstable relationships

were additional risk factors for Stewart. Dr. Gaines stated that Stewart was not

forthcoming about his offenses and that pattern factored into her opinion because “in

order to be able to get better, it’s important to acknowledge what you’ve done wrong

in the first place.” According to Dr. Gaines, “the big factors are his sexual deviance,

his psychopathic traits, that there’s no evidence of change and that his past behaviors

have been pervasive and repetitive.” Dr. Gaines acknowledged that two researchers,

Hanson and Conroy, were unable to find a relationship between minimization and

sexual recidivism. Stewart does not identify where in the record Dr. Gaines stated

that such a relationship existed, nor does he show how a lack of a statistical

relationship between minimization and recidivism would render Dr. Gaines’s

testimony of no evidentiary weight.

      The record demonstrates that Dr. Gaines reached her conclusions by following

the methodology that she described in her testimony. Her methodology was not

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challenged in the trial court. The record provides substantial support for the opinions

expressed by Dr. Gaines during the trial, and her opinions about Stewart cannot be

properly characterized as wholly conclusory, overly speculative, or without

foundation. In light of the opinions expressed by Dr. Gaines, we conclude that

rational jurors could find beyond a reasonable doubt that Stewart suffers from a

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

violence.  See In re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—

Beaumont 2012, pet. denied). Because the evidence is legally sufficient to support

the jury’s verdict, we overrule issue two.

         Stewart’s factual sufficiency argument, like his legal sufficiency argument, is

based entirely upon what he contends is the weakness of Dr. Gaines’s testimony.

Stewart did not present testimony from his own expert to refute Dr. Gaines’s analysis

or to provide a psychiatric basis for concluding that Stewart is not likely to commit

a predatory act of sexual violence. Dr. Gaines’s opinion testimony represents “a

reasoned judgment based upon established research and techniques for his

profession and not the mere ipse dixit of a credentialed witness.” Day, 342 S.W.3d

at 206. Weighing all of the evidence, we conclude the verdict does not reflect a risk

of injustice that would compel ordering a new trial. See id. at 213. We overrule issue

three.

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                          Good-Faith Basis for Questions

      In his fourth issue, Stewart argues that the trial court erred in allowing the

State to question Stewart about one of his predicate offenses, an attempted

aggravated sexual assault that Stewart committed in 1993. Stewart pleaded guilty to

the indictment, which alleged that he exposed his penis, hit the complaining witness

with a brick, and pulled at her shorts with his hands. Over a running objection to

hearsay, Dr. Gaines was allowed to describe the offense. The trial court instructed

the jury that

      hearsay is a statement other than one made by a declarant while
      testifying in trial or hearing. It is offered to prove the truth of the matter
      asserted. Certain hearsay information contained in records reviewed by
      experts is admitted before you through expert testimony. Such hearsay
      is admitted only for the purpose of showing the basis of the expert’s
      opinion and cannot be considered as evidence to prove the truth of the
      matter asserted.

Later, the State questioned Stewart about this offense. Stewart objected once that the

question was argumentative and that there was no good-faith basis for the questions.

      In his appellate brief, Stewart argues that the State’s line of questioning was

designed to elicit a series of denials from Stewart, when the details of the offense

had been admitted through Dr. Gaines solely to explain the basis for her opinion.

Stewart’s in-court testimony was not hearsay. See Tex. R. Evid. 801(d).




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      We addressed a similar argument in In re Commitment of Clemons. See No.

09-15-00488-CV, 2016 WL 7323298, at *11-12 (Tex. App.—Beaumont Dec. 15,

2016, pet. filed) (mem. op.). In Stewart’s case and in Clemons, counsel did not lodge

an objection until the State had asked more than a dozen questions regarding the

details of the offenses. See id. at *12. The court overruled the objection that the

State’s question was argumentative and without a good-faith basis, counsel did not

request a running objection, and the line of questioning continued without further

objection. See id. We conclude that Stewart waived this issue for appeal. See id.; see

Tex. R. App. P. 33.1(a). Furthermore, as we noted in Clemons, the questions the

State asked Stewart regarding the details of the offenses were relevant because

testimony from Stewart concerning his offenses is relevant to the jury’s

determination of whether the defendant has a behavioral abnormality and is a

sexually violent predator. See Clemons, 2016 WL 7323298, at *12. We overrule

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

      AFFIRMED.

                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice

Submitted on March 1, 2016
Opinion Delivered February 16, 2017

Before Kreger, Horton, and Johnson, JJ.
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