AFFIRMED; Opinion Filed March 7, 2019.




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-18-00277-CV

                IN RE: THE COMMITMENT OF RICHARD PAUL DAFFT

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. CV1770002

                             MEMORANDUM OPINION
                          Before Justices Schenck, Reichek, and Nowell
                                   Opinion by Justice Nowell
       This appeal involves a civil commitment pursuant to the Sexually Violent Predator Act. A

jury found Richard Paul Dafft to be a sexually violent predator as defined in section 841.003 of

the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 841.003. The trial

court ordered Dafft committed until his behavioral abnormality changes to the extent he no longer

is likely to engage in a predatory act of sexual violence. See id. § 841.081. In two issues, Dafft

argues the trial court erred by overruling his objection under Texas Rule of Evidence 614 to an

expert witness for the State remaining in the courtroom during his testimony and permitting the

State impermissibly to shift its burden through questioning during its case-in-chief. We affirm the

trial court’s judgment.
                                                      FACTUAL BACKGROUND

           At the time of trial, Dafft was forty-eight years old and had been incarcerated for thirteen

years for sexually assaulting his stepdaughter.1 Dafft lived with his girlfriend and her fourteen-

year-old daughter. Approximately one year after moving into the woman’s home, Dafft began

sexually assaulting the girl. He assaulted her more than ten times before she reported his actions.

Dafft received ten years deferred adjudication community supervision. While on deferred, Dafft

was charged with indecent exposure and failure to register as a sex offender. Dafft’s community

supervision was revoked and he was incarcerated.

           Approximately two years before Dafft was scheduled to be released, the State filed a civil

petition to commit him for involuntary treatment and supervision as a sexually violent predator.

See id. §§ 841.001 –.151. The civil case proceeded to trial on December 5, 2017.

           The record details Dafft’s extensive history of deviant sexual conduct. The parties are

familiar with that evidence and, in the absence of any challenge to sufficiency, we see no reason

to detail it here. The record supports Dafft’s testimony that there are “countless victims” of his

acts and he does not control his sexual impulses. At trial, the State asked Dafft: “And the reality

is that there are several things – in fact, hundreds of things that you have done criminally and

sexually in which you just haven’t been caught for; is that right?” Dafft confirmed that was correct.

           Multiple therapists treated Dafft in individual and group therapy sessions, including during

a two-and-a-half-year period he spent at an inpatient facility. Dafft testified he learned “quite a

bit” in sex offender treatment, but chose not to apply it. He did not lack control; he chose not to

control his sexual desires. Dafft manipulated his therapists and had a long history of lying,

including to his family. Dafft testified he struggled to see people as real people and he does not



       1
         Dafft testified the girl he sexually assaulted was his stepdaughter. However, from the record, it appears the girl’s mother was Dafft’s
girlfriend. For consistency with the record, we will refer to the girl as his stepdaughter.

                                                                     –2–
feel anything for other people. He understood those are “kind of psychopathic thoughts and

feelings.” Dafft testified he was diagnosed with chronic depression, PTSD, borderline personality

disorder, and social anxieties. Notes from one of Dafft’s therapists reflected a belief Dafft is at a

high risk to reoffend and a continuing threat to the community. Approximately one year before

trial, Dafft acknowledged if he were to live with a teenage girl again, there is a high risk he would

reoffend.

          The State hired forensic psychologist Dr. Randall Price to determine whether Dafft has a

behavioral abnormality.                Price reviewed court documents from Dafft’s juvenile and adult

convictions, police offense reports and investigations, victim statements, Dafft’s prison file, results

from assessments performed by other treatment providers, treatment and evaluation progress notes

compiled while he was in prison sex-offender treatment, and Dafft’s deposition. When Price

interviewed and evaluated Dafft on August 14, 2017, he also completed the Static-99R, an actuarial

test. Dafft scored a “5” on the Static-99R, meaning he has an above average risk of reoffending

and being convicted for the offense. Price used another assessment, the Hare Psychopathy

Checklist Revised (“Hare PCL-R”), to evaluate Dafft. The Hare PCL-R assesses the presence or

absence of certain personality traits and behaviors consistent with psychopathy. Dafft’s score on

the PCL-R did not show he has psychopathy, although he has several anti-social personality traits.

          Price concluded Dafft “clearly meets the criteria for a behavioral abnormality as defined in

the Texas Health and Safety Code where there is a condition that predisposes him to sexually

reoffend, including in a sexually violent fashion.” Price believes Dafft is “highly likely” to

reoffend. Price testified Dafft has the following disorders as defined by DSM-V2: major depressive

disorder in partial remission, exhibitionistic disorder in partial remission, voyeuristic disorder in

partial remission, sexual masochism disorder in partial remission, transvestic disorder in partial


   2
       We presume the DSM-V is the Diagnostic and Statistical Manual of Mental Disorders.

                                                                  –3–
remission, and traits and features of antisocial personality disorder. The depression is in partial

remission due to medication and the others are in partial remission due to living in a controlled

environment. Price testified Dafft’s “sexual deviance . . . is of grave concern to me. . . . He’s a

very disturbed person sexually.”

                                          LAW & ANALYSIS

       In his first issue, Dafft asserts the trial court erred by allowing Dr. Price to remain in the

courtroom during his testimony. After opening statements and before he testified, Dafft invoked

evidentiary rule 614 to exclude Price from the courtroom, but the trial court denied Dafft’s request.

With exceptions not being argued here, Texas Rule of Evidence 614 states that upon a party’s

request, the court must order witnesses excluded so they cannot hear other witnesses’ testimony.

TEX. R. EVID. 614. The purpose of Rule 614 is to minimize witnesses tailoring their testimony in

response to that of other witnesses and to prevent collusion among witnesses testifying for the

same side. See Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 116 (Tex. 1999).

       On appeal, the State concedes the trial court’s ruling was in error, but asserts it did not

result in an improper judgment. Because the State concedes error, we will assume the trial court

erred by not excluding Price and consider whether the error resulted in an improper judgment. See

TEX. R. APP. P. 44.1(a)(1) (reversible error in civil cases).

       Dafft argues Price used his testimony about uncharged offenses to increase his score on the

Static-99R and used his testimony to conclude Dafft shows no remorse or guilt for his crimes.

Although Price heard Dafft’s testimony about offenses for which he was not apprehended, charged,

or convicted, the evidence shows Price testified based on his pre-trial assessment of Dafft. Price

testified Dafft scored a “5” on the Static-99R based on the assessment Price performed on August

14, 2017. A completed copy of the Static-99R assessment dated August 14, 2017, is in the record

and shows Dafft’s score of “5.” At trial, the State asked Price whether the uncharged offenses

                                                 –4–
would have increased Dafft’s score had Price known about them. Price replied that the score

would only increase if the offenses were charged. The evidence shows uncharged offenses did not

raise Dafft’s score on the Static-99R, and Price did not increase Dafft’s score after hearing his

testimony.

       When scoring the Hare PCL-R assessment, which Price completed on September 20, 2017,

Price assessed a score of “2” to the prompt “Lack of Remorse or Guilt,” meaning Dafft lacks

remorse or guilt for his actions. At trial, the State asked Price whether Dafft’s testimony “that he

intellectually understands, but he doesn’t really feel what other people feel” relates to lack of

remorse or guilt. Price confirmed it is related, but he did not change the score based on Dafft’s

testimony.

       Based on this record, Dafft has not shown how hearing his testimony influenced or changed

Price’s opinions or allowed collusion among the witnesses. Under the facts and the arguments

before us in this case, we cannot conclude any error by the trial court resulted in an improper

judgment. We overrule Dafft’s first issue.

       In his second issue, Dafft argues the trial court erred by allowing the State to make an

impermissible burden-shifting comment during its case-in-chief. While cross-examining Price,

Dafft’s counsel confirmed Price’s belief that Dafft has a behavioral abnormality. He continued

questioning Price:

              [Dafft’s Counsel]: Now, that is only an opinion, right?
              [Price]: It is an opinion.
              [Dafft’s Counsel]: 100 psychiatrists or 100 psychologists could look at the
       same information you looked at and 50 could say BA, 50 could say no BA, correct?
              [Price]: It’s possible.

During its redirect examination of Price, the State referenced those questions:

              [State]: And you told counsel for the other side when he asked you the
       question, if 100 people could see Mr. Dafft, 50 of them may say he doesn’t have a
       behavioral abnormality; is that right? He asked you that and you said, yeah, I guess.

                                                –5–
                   [Price]: As I remember, he asked me if that was possible and I said that was
           possible.
                   [State]: So if that were the case, since you testified before for the Defense,3
           they could call any of those 50, right, to say he didn’t have a behavioral
           abnormality?
                   [Price]: I’m sorry. I don’t understand the question.
                   [State]: My question is . . . they asked you if you’ve ever testified that
           someone didn’t have a behavioral abnormality and [defense counsel] gave you a
           percentage that if 100 people were called, 50 percent, it’s possible, would say
           [Dafft] didn’t have a behavioral abnormality.
                           Did you hear him say that?

Dafft’s counsel interrupted the questioning and objected that the State was switching the burden

to Dafft. The trial court overruled the objection and questioning continued.

                   [State]: That’s my question, Dr. Price. . . . If someone believed he didn’t
           have a behavioral abnormality as an expert, they could come and testify and tell
           this jury that; [is] that correct?
                   [Dafft’s Counsel]: Judge, I’m going to object. She’s switching the burden
           to the Respondent. That’s improper for the Prosecution.
                   The Court: Overruled.
                   [Price]: The answer to that is, yes, they could have done that.

           We do not consider whether the trial court erred by overruling Dafft’s objections. Even if

we assume the trial court erred, we conclude any error did not result in an improper judgment. See

TEX. R. APP. P. 44.1(a)(1). A judgment will not be reversed based on the admission or exclusion

of evidence unless the appellant establishes that (1) the trial court’s ruling was in error and (2) the

error was reasonably calculated to cause and probably did cause the rendition of an improper

judgment. Estate of Finney, 424 S.W.3d 608, 612 (Tex. App.—Dallas 2013, no pet.); Fitzerman

v. Classic Americana, LLC, No. 05-15-00528-CV, 2016 WL 1450165, at *5 (Tex. App.—Dallas

Apr. 13, 2016) (mem. op.), supplemented, No. 05-15-00528-CV, 2016 WL 1701345 (Tex. App.—

Dallas Apr. 27, 2016, no pet.) (mem. op.). “Reversible error does not usually occur in connection

with evidentiary rulings unless the appellant demonstrates the whole case turned on the particular




   3
       Price testified on behalf of the defense in other cases.

                                                                  –6–
evidence excluded or omitted.” Finney, 424 S.W.3d 608, 612. When reviewing whether evidence

was properly admitted or excluded, the appellate court must review the entire record. Id.

       Dafft argues the asserted error probably caused the rendition of an improper judgment

“because it distracted the jury from any deficiencies it could have legitimately seen in the State’s

case.” However, Dafft does not identify what these purported deficiencies are or explain how the

jury’s failure to recognize the deficiencies potentially caused the rendition of an improper

judgment. Even having reviewed the entire record, we cannot conclude the whole case turned on

the testimony admitted over Dafft’s objections or the admitted testimony probably caused the

rendition of an improper judgment. We overrule Dafft’s second issue.

                                           CONCLUSION

       We affirm the trial court’s judgment.




                                                   /Erin A. Nowell/
                                                   ERIN A. NOWELL
                                                   JUSTICE


180277F.P05




                                                –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN RE: THE COMMITMENT OF                             On Appeal from the 292nd Judicial District
 RICHARD PAUL DAFFT, Appellant                        Court, Dallas County, Texas
                                                      Trial Court Cause No. CV1770002.
 No. 05-18-00277-CV                                   Opinion delivered by Justice Nowell.
                                                      Justices Schenck and Reichek participating.



     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 7th day of March, 2019.




                                                –8–
