AFFIRMED; Opinion Filed August 30, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01001-CV

              IN RE THE COMMITMENT OF GREGORY DEVON JOINER

                       On Appeal from the 397th Judicial District Court
                                   Grayson County, Texas
                            Trial Court Cause No. CV-17-1405

                              MEMORANDUM OPINION
                           Before Justices Myers, Molberg, and Carlyle
                                    Opinion by Justice Myers
       Gregory Devon Joiner appeals the trial court’s judgment finding Joiner is a sexually violent

predator and civilly committing him pursuant to the Civil Commitment of Sexually Violent

Predators Act. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.153. Joiner brings two issues

on appeal contending the evidence is legally and factually insufficient to support the jury’s finding

beyond a reasonable doubt that he is a sexually violent predator. We affirm the trial court’s

judgment.

                                        BACKGROUND

       When Joiner was eight or nine years old, he was exposed to pornography depicting rape.

Joiner later explained to an evaluator that since that time, “his life has been dominated by

masturbating to fantasies of aggravated sexual assault.” In 1979, when Joiner was nineteen or

twenty years old and living in Arkansas, he had a fantasy of kidnapping a woman, raping her, and

brainwashing her to have her fall in love with him. He decided to carry out that fantasy. He leased
an office space, ostensibly for a motorcycle shop, contacted an employment agency to hire a

secretary, and he bought some paint and material to make a sign. On Friday, he went to the

employment agency and hired the first woman he interviewed. On Saturday, he called her and

told her to come into work the next day. On Sunday, when she came to the office, Joiner assigned

her the task of making a sign. As she was making the sign, Joiner grabbed and tied her up.

        Joiner took the woman into the woods where he raped her. Joiner held her captive for three

days, keeping her tied up and raping her repeatedly. He then let her go. He was arrested soon

after. Joiner pleaded guilty in Arkansas to kidnapping and rape and was sentenced to five years’

imprisonment. Joiner was released on parole after nine or ten months.

        After being paroled, Joiner moved to Texas and eventually to Grayson County. Joiner

married and had two children. Ten years after the first offense, Joiner put on a mask and broke

into his neighbors’ house while the husband was away at work and the wife was home caring for

her child. Joiner threatened to kill the child unless the woman cooperated. Joiner grabbed her by

the hair and forced her into some nearby woods where he raped her. He let her go and went home

and waited to be arrested. Joiner pleaded guilty to sexual assault–enhanced and was sentenced to

thirty years’ in prison. Joiner came up for parole twelve times, and parole was denied every time.

During his incarceration, Joiner has had no communication or support from his former wives, his

children, or his siblings.

        Joiner’s mandatory release date was in April 2019. In 2017, the State filed a petition

seeking a declaration that Joiner was a sexually violent predator and an order committing him for

treatment and supervision. A jury found beyond a reasonable doubt that Joiner was a sexually

violent predator. The trial court signed a judgment civilly committing him.




                                               –2–
                                   STANDARD OF REVIEW

       In a suit to commit a person as a sexually violent predator, the State must prove beyond a

reasonable doubt that the person (i) is a “repeat sexually violent offender” and (ii) “suffers from a

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

violence.” TEX. HEALTH & SAFETY CODE §§ 841.003(a), 841.062(a); see also id. § 841.002(8)

(defining “sexually violent offense”).

       A person is a repeat sexually violent offender if he has been convicted of more than one

sexually violent offense and a sentence was imposed for at least one of the offenses. Id. §

841.003(b).

       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).

       A predatory act is “an act directed toward individuals, including family members, for the

primary purpose of victimization.” Id. § 841.002(5).

       In these cases, we use the criminal test for legal sufficiency. In re Commitment of Brown,

No. 05-16-01178-CV, 2018 WL 947904, at *8 (Tex. App.—Dallas Feb. 20, 2018, no pet.) (mem.

op.). Thus, we review the evidence in the light most favorable to the verdict to determine whether

any rational factfinder could have found the required elements beyond a reasonable doubt. Id. It

is the factfinder’s responsibility to resolve conflicts in the testimony, weigh the evidence, and draw

reasonable inferences from basic to ultimate facts. Id.

       Although factual-sufficiency review has been abandoned in criminal cases, as an

intermediate appellate court with final authority over factual-sufficiency challenges in civil cases,

we will perform a factual-sufficiency review in Chapter 841 cases when the issue is raised on


                                                 –3–
appeal. Id. In our factual-sufficiency review, we consider whether the verdict, though supported

by legally sufficient evidence, nevertheless reflects a risk of injustice that compels a new trial. Id.

We view all the evidence in a neutral light and determine whether the jury was rationally justified

in finding the required elements beyond a reasonable doubt. Id. We reverse only if the risk of an

injustice is too great to allow the verdict to stand. Id. The jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony. Id. at *9. The jury may resolve conflicts in

the evidence and believe all, part, or none of any witness’s testimony. Id. We may not substitute

our judgment for the jury’s. Id.

                        LEGAL SUFFICIENCY OF THE EVIDENCE

       In his first issue, Joiner contends the evidence is legally insufficient to support the jury’s

finding beyond a reasonable doubt that he is a sexually violent predator. Joiner does not dispute

that he is a repeat sexually violent offender. Instead, he asserts the State’s expert witnesses

presented no evidence that Joiner suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

       The State presented the testimony of Dr. Sherri Gaines, a licensed psychiatrist, and Dr.

Darrell Turner, a licensed psychologist. Dr. Turner has performed about 150 or 160 behavioral

abnormality examinations, and Dr. Gaines has performed 130 behavioral abnormality

examinations. Both doctors examined Joiner, and they concluded he suffers from a behavioral

abnormality that predisposes him to engage in predatory acts of sexual violence.

       Joiner argues the doctors’ testimony amounts to no evidence because it was conclusory or

speculative. Opinion testimony that is wholly conclusory or speculative amounts to no evidence

“because it does not tend to make the existence of a material fact ‘more probable or less

probable.’” In re Commitment of H.L.T., 549 S.W.3d 656, 661–62 (Tex. App.–Waco 2017, pet.

denied) (quoting City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009)). Thus, “[b]are,


                                                 –4–
baseless opinions will not support a judgment even if there is no objection to their admission in

evidence.” Id. at 662 (quoting Pollock, 284 S.W.3d at 816). “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.” Id. (quoting 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. (quoting Pollock, 284 S.W.3d at 818).

       Joiner did not object that Turner’s and Gaines’s opinions were unreliable during trial.

Therefore, to prevail on his legal sufficiency claim, he must show in his appeal that the evidence

offers no basis to support their opinions. Id. (citing Pollock, 284 S.W.3d at 817; In re Commitment

of Barbee, 192 S.W.3d 835, 843 (Tex. App.–Beaumont 2006, no pet.)).

       Both doctors testified at length about how they each reached the conclusion that Joiner had

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

They described the risk factors that made it more likely that Joiner would reoffend following his

release, and they discussed the positive factors that went against his being a sexually violent

predator.

       Dr. Gaines and Dr. Turner testified they examined Joiner and concluded he has behavioral

abnormalities that make him more likely to engage in a predatory act of sexual violence. They

both testified he has an antisocial personality disorder. Besides the sexual offenses, other evidence

of Joiner’s antisocial personality disorder included his criminal behavior from a young age (he

stole a pair of boots when he was eight, stole a car when he was sixteen, and stole gas when he

was eighteen), the fact that he ran away from home and hitchhiked across the country at age

thirteen, and his unstable employment history, including his inability to complete his Marine Corps

service. Joiner was also diagnosed with antisocial personality disorder by the prison doctors.

                                                –5–
Additionally, both doctors testified he has sexual deviancy, which Dr. Gaines diagnosed as

unspecified paraphilic disorder and Dr. Turner diagnosed as sexual sadism.

        Dr. Gaines testified that Joiner’s antisocial personality disorder and sexual deviance were

the two major risk factors for his reoffending sexually. The combination of antisocial personality

disorder and sexual deviancy “is a dangerous combination, and from my knowledge, something

that makes someone likely to reoffend, depending on the other things about that person.” Dr.

Turner testified that “when there’s a sexually deviant interest and there’s a degree of antisociality,

it acts as a fuel that allows them to act on that sexually deviant interest and victimize other people

because they’re so antisocial that they’re okay with doing that.”

        Both Dr. Gaines and Dr. Turner testified to Joiner’s minimization of his offenses. In

describing the first offense to the doctors and in his testimony at trial, Joiner testified that the first

sex he had with the victim was nonconsensual, but that the sex they had after that over the next

three days was consensual and sometimes initiated by the victim. The doctors testified Joiner’s

description of this offense fit his fantasy of brainwashing the victim to have her fall in love with

him. Dr. Gaines testified Joiner’s description of the offense was “entirely implausible”; Dr. Turner

testified it was Joiner’s “actual fantasy” and his “sexually deviant belief.” They testified Joiner

also minimized the second offense. In that offense, he grabbed the victim’s hair at the back of her

head and forced her out of the house. When Joiner testified about the offense at trial, he minimized

his actions by stating, “I placed my hand behind her hair, like this, and I led her down the hallway

through the living room out the back door.” Dr. Gaines testified that Joiner’s version of the events

shows he is unaware of the harm he caused the victims, and Dr. Turner testified it demonstrated

his antisocial personality disorder.




                                                  –6–
       Both doctors testified Joiner’s lack of sex-offender treatment was a risk factor for his

reoffending. Dr. Gaines testified that sexual deviancy is a chronic condition that lasts a person’s

lifetime. There is no medication for sexual deviancy.

       The treatment for deviant sex is sex offender treatment. There’s very specific sex
       offender treatment to focus on sexual deviance. This is cognitive behavioral
       treatment usually. So it helps the person examine their thoughts, helps the person
       examine triggers, helps the person examine cycles, helps the person examine how
       their unhealthy thoughts can lead to unhealthy behaviors.

Dr. Gaines testified Joiner needs sex-offender treatment.

       Although Joiner received psychological counseling in prison for several years where he

discussed the offenses, he received no formal sex-offender treatment. Joiner testified he never

requested sex-offender treatment because the State did not provide sex-offender treatment on

request but would make the decision whether to place an inmate for sex-offender treatment. Both

Dr. Gaines and Dr. Turner testified this was not true. Dr. Turner testified he asked Joiner if he

wanted sex-offender treatment, and Joiner said he wanted it so he could understand “why sex

played such a big portion in my life.” Dr. Turner testified this response showed Joiner was “not

really getting what the problem is. The problem is that he abducted and raped two women, not

that sex is important to him.” Dr. Gaines testified Joiner “still does not understand his offending,

he still does not understand how his offending affected his victims. He still does not understand

what led to his offending. He still has a fantasy version in his head of what actually happened.”

       At trial, Joiner testified that the halfway house to which he wants to go when he is released

does not provide sex-offender treatment. He testified he does not need sex-offender treatment to

avoid reoffending “because I’ve made up my mind that I’m not going to reoffend.” He testified

he “could use sex offender treatment so that I can reinforce the laws that I’m not going to do this

ever again, plus I can help other people in the process.”




                                                –7–
       Besides Joiner’s sexual deviancy, antisocial personality disorder, his present minimization

of the offenses, and his lack of sex-offender treatment, the doctors listed other risk factors for his

reoffending, including his use of violence to commit the offenses, the planning involved in

committing them, the extended length of time of the first offense, the fact the victims were not

family members, and the lack of family support.

       The doctors testified they also considered positive or protective factors, including Joiner’s

age (he was sixty years old at trial), his obtaining his GED, his institutional adjustment and good

behavior in prison, his participation in behavioral and other programs in prison, his participation

in a faith-based program, and the rationality of his post-release plan.

       Dr. Turner testified he administered “actuarials” to Joiner, including the Static-99R and the

PCL-R. The Static-99R indicates the likelihood of a sexual offender reoffending considering “ten

variables that have been shown to be associated with a sex offender being arrested for a subsequent

sex offense.” Dr. Turner testified the Static-99R was not meant to be an exhaustive list of

considerations for risk of recidivism by a sex offender. Joiner had a score of “1” on the Static-

99R, which indicates an average likelihood of reoffending. The PCL-R consists of twenty items

that are common among persons considered psychopaths. Dr. Turner scored the PCL-R for Joiner

twice, once after interviewing him and reviewing limited records and again after reviewing more

complete records concerning Joiner. Dr. Turner testified the average male with no criminal history

would score 5 to 8, while the average inmate would score 22 or 23. A score of 26 to 30 indicates

a high degree of psychopathic characteristics. The first time, Joiner’s score was 15, which Dr.

Turner stated is not “anywhere near psychopathic range.” The second score was 21, which does




                                                 –8–
not indicate psychopathy. Dr. Gaines and Dr. Turner testified the actuarials do not take into

consideration all factors necessary to determine a person’s likelihood of reoffending.1

           Joiner argues that the doctors’ consideration of his denial or minimization of the offenses

as a risk factor “has been resoundingly discredited as a risk factor.” The evidence at trial

concerning denial or minimization of an offense as a risk factor for reoffending was the following

testimony by Dr. Gaines:

           Q. In terms of risk factors, is denial considered a risk factor by individuals you’re
           seeing?

           A. There are some papers that have been able to correlate it and some papers that
           have not been able to correlate it. However, where I’m coming from is that the
           treatment of cognitive behavioral therapy depends on someone being able to admit
           their mistake in order to start working on it. So, to me, that makes it clearly a risk
           factor.

Dr. Turner testified about denial as follows:

           Q. . . . [Y]our testimony in this case was that denial is not a risk factor; isn’t that
           correct?

           A. Correct. . . . [M]y testimony is that denial in and of itself was shown in the
           research not to be predicative of reoffending.

           Q. . . . So, it’s true that denial is not a predictor of whether or not a person is going
           to reoffend or not.

           A. I no longer hold that view. I mean, we grow and we read and learn and we
           continue our training. I think that it matters, as Dr. Gaines said, because it speaks
           directly to their likelihood of good prognosis and treatment. It’s also one of the
           PCL-R items, so it factors into that score and antisociality. But if you just took
           denial by itself, it’s like if you just took one of 500 questions off an intelligence
           test, that one is not going to be very predictive of how smart someone is.



   1
       Dr. Gaines testified,
           Q. . . . [C]ould you give the jury an example of something that you considered very important in this case that is not captured
           on this instrument [Static-99R]?
           A. Sure. So the fact that his sexually deviant fantasies were so strong and so important in his life they have been present
           since the age of eight or nine and he had been dominated by—his life had been dominated by masturbating to these fantasies
           of rape, brainwashing, kidnapping, and then he actually goes out and conducts one of these offenses, he’s incarcerated, gets
           out, he conducts another offense, and statements that he made to psychologists, such as, you know, he views women as wild
           game, and so that’s why he takes them into the woods to bring them back to their home, he likes to stalk women like he stalks
           wild game, none of this is accounted for on the Static-99. And these statements and these types of fantasies are extremely
           important in conducting a risk assessment, as they speak to sexual deviance, antisociality, so on and so forth.

                                                                       –9–
       Q. . . . [I]t’s true, isn’t it, Dr. Turner that Mr. Joiner has not denied committing these
       offenses; is that right?

       A. Well—and that’s another problem with it, and that’s one reason why I know
       [sic] longer hold that view, is because there are different stages of denial, there are
       different types of denial. There’s outright denial, there’s minimization, there’s
       blaming the victim. There are different things of that nature. And so, I wouldn’t
       say that he’s not denying his offenses. He’s admitting to sexually assaulting the
       victims, but to turn around and then say that it was consensual, but then admit that
       he had her tied to him, that’s not—

The record does not show minimization of offenses “has been resoundingly discredited as a risk

factor.” Instead, the evidence shows that minimization and denial are factors to be considered in

determining whether an offender is a sexually violent predator. Joiner also argues Dr. Gaines’s

testimony was conclusory and speculative because she emphasized denial as a risk factor during

her testimony. The evidence in this case was that denial is a risk factor.

       Joiner attacks a statement made by Dr. Gaines about why there is a discrepancy in research

papers about whether an offender’s denial of an offense is a risk factor. Dr. Gaines testified:

       These are, again group statistics, and oftentimes people who have been studied have
       had sex offender treatment. Oftentimes they have realized that they need to admit
       to their crime, so that’s kind of a confounder that someone may be able to say that
       they committed a crime that might skew the research.

Joiner appears to argue Dr. Gaines meant that people who have been in sex offender therapy know

they have to admit to the offense and that they do so even though they are in denial. Thus, for

statistical purposes, they are not counted as being in denial even though they are, and any

reoffending by them is not counted as reoffending by a person in denial. Joiner argues this

statement is baseless because “[c]oerced admissions would mean that there are innocent people

mixed in with the admitted sex offenders and would actually increase the correlation between

admission of crimes and not re-offending . . . .” Nothing in Dr. Gaines’s statement indicates she

included innocent people. Nothing in the evidence shows innocent people admitted to sexual

offenses they did not commit. Joiner’s criticism is not valid.


                                                 –10–
       Joiner argues the testimony about his lack of family support being a risk factor is incorrect.

Joiner cites articles in periodicals that he asserts stand for the proposition that lack of family

support is not a risk factor for reoffending when the person has a support network consisting of

volunteers in faith-based organizations. These articles or similar evidence were not offered or

admitted into evidence at trial, so we cannot consider them.

       Joiner argues “there is no scientific basis provided to support that sex offenders who

planned their crimes are more likely to reoffend than those who do not plan their crimes.” Dr.

Gaines testified that the planning involved in the offenses was part of the sexual deviancy, which

the doctors testified was a major risk factor.

       Joiner appears to argue the first offense was not as bad as the doctors suggested because

he received only a five-year sentence for that offense and he was released on parole after nine or

ten months. The record contains no evidence of the reason for the length of the sentence in the

first offense or for the timing of the parole. Joiner’s suggestion that the length of the sentence or

the granting of parole shows the offense was not a heinous offense and a horrific, terrifying ordeal

for the victim is speculation, not evidence.

       Joiner argues that Dr. Gaines had no basis for her statement that Joiner’s description of the

first offense as involving consensual sex after the first sex was “entirely implausible.” Dr. Gaines

testified the records for the offense “indicate that he sexually assaulted her on more than one

occasion,” that the victim “reported the offenses as soon as she was freed,” and “that she was

nonconsenting.” Thus, the records provided Dr. Gaines a basis for her statement.

       Joiner argues Dr. Gaines’s testimony was not based on evidence or grounded in science

because she testified that the facts of the offenses “help me to identify things that I know from my

fund of knowledge that would make him more likely to reoffend.” Joiner asserts Dr. Gaines has

no “fund of knowledge” because her practice does not include sexual offender therapy. However,

                                                 –11–
her practice includes regularly working with people who have issues with sexuality. She also

testified she had worked for three years as a prison psychiatrist where her practice included work

with sexual offenders. Her testimony included references to research that certain facts indicate a

likelihood of reoffending. Thus, the record shows she had a fund of knowledge.

         Joiner also criticizes Dr. Gaines’s knowledge, asserting she lacked knowledge of research

from the last decade, including that the MSAS actuarial was discredited. There is no evidence that

the MSAS actuarial has been discredited. The only evidence about the validity of the MSAS was

Dr. Turner’s testimony that as new versions of the MSAS become available, the older versions are

no longer used. Dr. Turner testified he does not use the MSAS because it and the Static-99R “are

essentially getting at the same thing.” He did not testify that the MSAS had been discredited or

was invalid.

         Joiner also asserts Dr. Gaines “invent[ed] risk factors that have not been studied and

imbue[d] them with scientific significance.” Joiner argues Dr. Gaines testified that Joiner’s taking

his victims into the woods had significance over and above the observation that offenders whose

crimes involved actual or threatened force were more likely to reoffend. Dr. Gaines made no such

statement. She first testified that the prison psychologist recorded the fact that Joiner’s thought

process leading to him reoffending was that he hunted down his victims and took them into the

woods and that his sexual pleasure increased the more the women fought him. She later agreed

with a statement by Joiner’s counsel that his taking the first victim into the woods and spending

three days with her was a risk factor. Dr. Gaines did not testify that the force used by Joiner in

these offenses was a more significant risk factor than the use of other kinds of actual or threatened

force.

         Joiner criticizes Dr. Turner’s testimony that Joiner “admitted to evaluators that he’s

fantasized about kidnapping a woman, brainwashing her, raping her, she immediately falls in love

                                               –12–
with him, they live happily ever after” and that “this is still how he thinks about that first offense.”

Joiner asserts there is no evidence to support the statement Joiner still thinks about that first offense

that way. Joiner points out he was evaluated at the Skyview facility, but he left that facility in

2001. He asserts that Dr. Gaines did not testify that he told her that he thought about the offense

that way, and no evaluators examined him after Dr. Turner. Joiner argues that no evidence

supports Dr. Turner’s statement that “this is still how he thinks about that first offense.” Dr. Turner

testified that Joiner had “future interviews . . . after my evaluation with him,” so Joiner’s assertion

that no one interviewed Joiner after Dr. Turner is incorrect. Also, Dr. Gaines testified that Joiner

told her about that fantasy and that his statements showed he still believes it:

        On my interview with Mr. Joiner, as well as my knowledge from reading the
        records, Mr. Joiner had a rape fantasy. He had a fantasy to kidnap someone,
        sexually assault them, and then brainwash them. So this appears to be what he
        intended to do with his victim . . . and what a part of his brain is still telling him
        that he did, that at some point she became a consenting victim, which is entirely
        implausible.

Moreover, Joiner’s testimony at the trial was that much of the sex in the first offense was

consensual and sometimes initiated by the victim. Thus, both Dr. Gaines’s testimony and Joiner’s

own testimony support Dr. Turner’s statement.

        Joiner also argues that his fantasies were fourteen to twenty years old. However, both

Joiner’s own testimony and the testimony of Dr. Gaines and Dr. Turner indicate he still believes

in his fantasized version of the first offense.

        Joiner also points to the differences between the two offenses and the fact that the second

offense was a violent sexual assault with no attempt to win over the victim or to keep her with

him. Joiner argues,

        The absence of any pretense that the second victim was anything other than a flat
        out assault begs the question of why, if his mistaken notion that the first victim
        acquiesced in the sex after the initial rape is so pervasive as to be considered a
        behavioral characteristic forty years later, and this characteristic is so dangerous


                                                  –13–
       and predictive of re-offense that Mr. Joiner continues to be a menace, it played no
       part in the circumstances when he did re-offend.

The doctors did not testify that Joiner would attempt to recommit the first offense. Their testimony

was that Joiner had sexual deviancy in the form of unspecified paraphilic disorder or sexual sadism

from his sexual fantasies of raping women. Joiner told an evaluator in prison that he was first

exposed to pornography depicting rape when he was eight or nine years old, and “his life has been

dominated by masturbating to fantasies of aggravated sexual assault since that time.” Thus, the

testimony demonstrates that Joiner’s sexual fantasy was raping women, and the fantasy of having

the woman fall in love with him was but one manifestation of the fantasy of raping women. Dr.

Gaines also testified that a prison psychologist noted that Joiner’s sexual pleasure increased the

more the victim fought with him. The second offense of a violent rape was in line with Joiner’s

sexual fantasy of sexually assaulting nonconsenting women.

       Joiner also points out that Dr. Turner’s testimony that Joiner’s “fantasy life is a huge–

cannot be overstated as a huge, huge risk factor here” conflicts with Joiner’s testimony and his

statements to the doctors that he has not had any sexually violent fantasies in at least twenty years.

Dr. Turner addressed whether Joiner still has sexual preoccupation:

       [I]n the last ten years it’s difficult to find evidence of him being sexually
       preoccupied because he’s in an all-male facility. There’s clear evidence of sexual
       preoccupation and promiscuous sexual behavior prior to his incarceration. But in
       the last ten years, I think that the best evidence of it is his description of the offenses,
       the way that—his description of the offenses and victims’ reaction and behavior is
       still very, very similar to what his sadistic fantasies have been since he was a small
       boy. So that would be—that would be primary of it.

       ....

       Because he has a history of sexual preoccupation, and I think the fact he’s still
       saying that it [the first offense] was consensual after 20 minutes and all of these
       other things, I think he’s still active in that fantasy world.

       ....

       [I]f he’s still active in his deviant sexual fantasy world, then I think he’s sexually
       preoccupied.
                                                 –14–
Dr. Turner’s testimony shows Joiner is still sexually preoccupied despite Joiner’s testimony to the

contrary. Joiner’s argument lacks merit.

       Joiner also points to evidence presented in another case that “maybe up to 75 percent of

people in jail or prisons are antisocial” but only “‘like 20 percent or so’ of the criminal population

have psychopathy ‘or at least strong psychopathic traits.’” In re Commitment of Stoddard, No. 02-

17-00364-CV, 2019 WL 2292981, at *7 (Tex. App.—Fort Worth May 30, 2019, pet. filed) (mem.

op.). We cannot consider evidence that was not before the trial court. Moreover, the issue is not

whether Joiner has antisocial personality disorder (the evidence shows he does) or whether he is

psychopathic (the evidence shows he is not). The issue is whether he has such a behavioral

abnormality and is likely to engage in a predatory act of sexual violence. See HEALTH & SAFETY

§ 841.003(a)(2); In re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012) (“whether a

person ‘suffers from a behavioral abnormality that makes the person likely to engage in a predatory

act of sexual violence’ is a single, unified issue” (footnote omitted)). The fact that his level of

antisocial personality disorder may be the same or just below that of the average inmate is also not

the issue. As Dr. Turner testified, there are many antisocial people who may be criminals but who

do not have sexually deviant interests. Viewing Joiner’s level of antisocial personality disorder

without considering his sexual deviance is not relevant to the question of whether the evidence

supports a finding beyond a reasonable doubt that Joiner is a sexually violent predator.

       Joiner also argues Dr. Gaines’s and Dr. Turner’s opinions should not be considered because

they are “too dependent upon [an expert’s] subjective guesswork.”             In re Commitment of

Bohannan, 388 S.W.3d at 305–06. We disagree. The doctors described the basis for their

decisions and the data and evidence on which those decisions were based. Their decisions were

not “too dependent upon . . . subjective guesswork.”




                                                –15–
       After reviewing all the evidence in the light most favorable to the verdict, we conclude a

rational juror could have found the required elements beyond a reasonable doubt. Therefore, the

evidence was legally sufficient to support the jury’s finding that Joiner was a sexually violent

predator. We overrule Joiner’s first issue.

                      FACTUAL SUFFICIENCY OF THE EVIDENCE

       In his second issue, Joiner contends the evidence is factually insufficient to support the

jury’s finding that he is a sexually violent predator. We must determine whether the verdict,

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

compels a new trial. In re Commitment of Brown, 2018 WL 947904, at *8.

       Joiner argues the evidence is factually insufficient because his two offenses “hardly

constitute ‘a history of multiple sexual offenses over an extended period of time’ or a pattern of

well-ingrained offending behavior,” quoting In re Commitment of Stoddard, 2019 WL 2292981,

at *12. Joiner argues his two offenses are “hardly a ‘pattern of violent offenses,’” quoting

Stoddard. Id. at 14. Joiner committed two aggravated sexual assaults against female victims over

ten years. After that, he was imprisoned for thirty years with no opportunity to commit sexual

assault against women. The fact that ten years intervened between the two offenses does not make

unjust the jury’s determination that he suffers from a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence. Joiner points out that in Stoddard, the court of

appeals determined the evidence was factually insufficient, and the defendant in that case had more

than two offenses. See id. at *1 (Stoddard had two convictions but many incidents of aggravated

sexual of assault of children under fourteen). The statute defines “sexually violent predator,” in

part, as “a repeat sexual offender.” With his two convictions, Joiner is a “repeat sexual offender.”

To find the evidence factually insufficient because he did not have more than two sexual-assault




                                               –16–
convictions would constitute adding an element to the sexually violent predator statute, which

courts may not do.

       Joiner also argues his first offense was not heinous because he received a sentence of only

five years’ imprisonment and was released on parole after only nine or ten months. As we

discussed in Joiner’s first issue, the record contains no evidence of the reason for the length of

Joiner’s sentence in the first offense or for the granting of parole. Any suggestion that the sentence

and parole were based on the lack of heinousness of the offense or any other reason would be

speculation. Such speculation is not evidence and will not be considered by this Court. Absent

expert testimony to the contrary, the length of the sentences and the relative heinousness of the

underlying offenses are not relevant to whether the defendant meets the statutory definition of

sexually violent predator.

       Joiner also argues that because he was deterred for ten years following his first

imprisonment, “it is ridiculous to assume . . . he would be a ‘menace’ undeterred by the experience

of a thirty year period of imprisonment if released.” Again, that is not the issue. The issue is

whether he meets the definition of sexually violent predator, not whether the experience of

incarceration may have had a deterrent effect. The fact that he served thirty years in prison does

not make the evidence that he is a sexually violent predator factually insufficient.

       Joiner also argues it is “ridiculous to presume Mr. Joiner is incapable of controlling himself

to the extent that he is a menace to society.” Joiner points out he did not commit a sexual offense

until he was twenty-one years old, and there were no offenses for at least nine years after his first

release from prison. Joiner’s two offenses form the factual basis for the element of being “a repeat

sexually violent predator.” The fact that Joiner was imprisoned before he could commit more

offenses does not make the jury’s finding that he is a sexually violent predator unjust.




                                                –17–
         The evidence shows Joiner committed two violent sexual offenses. After being imprisoned

for thirty years, Joiner still has antisocial personality disorder and sexual deviance. He did not

request or receive sex-offender treatment while imprisoned, and his plan for his release did not

include sex-offender treatment. The doctors testified these were major risk factors for his

reoffending.

         After reviewing all the evidence in a neutral light, we conclude the risk of an injustice in

this case is not so great as to require a new trial. Therefore, the evidence is factually sufficient to

support the jury’s finding that Joiner is a sexually violent predator. We overrule Joiner’s second

issue.

                                          CONCLUSION

         We affirm the trial court’s judgment.




                                                    /Lana Myers/
                                                    LANA MYERS
                                                    JUSTICE

181001F.P05




                                                 –18–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 IN RE THE COMMITMENT OF                              On Appeal from the 397th Judicial District
 GREGORY DEVON JOINER                                 Court, Grayson County, Texas
                                                      Trial Court Cause No. CV-17-1405.
 No. 05-18-01001-CV                                   Opinion delivered by Justice Myers.
                                                      Justices Molberg and Carlyle 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 30th day of August, 2019.




                                               –19–
