                  In the
             Court of Appeals
     Second Appellate District of Texas
              at Fort Worth
             ___________________________
                  No. 02-17-00364-CV
             ___________________________

IN RE: THE COMMITMENT OF JEFFERY LEE STODDARD



         On Appeal from the 371st District Court
                 Tarrant County, Texas
           Trial Court No. D371-S-13391-16


      Before Sudderth, C.J.; Walker and Birdwell, JJ.
             Opinion by Chief Justice Sudderth
    Walker, J., filed a concurring and dissenting opinion.
                           MEMORANDUM OPINION

      Appellant Jeffery Lee Stoddard appeals the trial court’s order that he be civilly

committed as a sexually violent predator. See Tex. Health & Safety Code Ann.

§ 841.003 (West 2017). Because the evidence is factually insufficient to support the

jury’s finding that Stoddard is a sexually violent predator, we reverse.

                                      Background

      In 2003, Stoddard was charged with aggravated sexual assault of two children,

seven-year-old Alice and her six-year-old brother Bobby,1 indecency with a child by

contact by touching Bobby’s genitals, and possession of child pornography. See Tex.

Penal Code Ann. §§ 21.11, 22.021(a)(1)(B) (West Supp. 2017), § 43.26 (West 2016).

Stoddard was accused of forcing the two children to perform oral sex on each other,

of performing oral sex on Alice and receiving oral sex from her ten or eleven times, of

withholding food from Alice unless she engaged in oral sex, of attempting anal sex

with Alice, of touching Alice’s genitals, and of causing Alice to touch his genitals, all

while he was living with the children and their mother, Linda. In May 2004, Stoddard

pleaded guilty to the charges of aggravated sexual assault and possession of child

pornography. The jury assessed two twenty-year sentences for the aggravated sexual




      1
       We use aliases to refer to the children in order to protect their privacy. See
Tex. R. App. P. 9.9(a), 9.10(a) (providing privacy protection for sensitive data in civil
and criminal cases, including the name of a minor).


                                            2
assault convictions and a ten-year sentence for the child pornography conviction, and

he served them concurrently.

       After Stoddard served twelve years in prison, he became eligible for parole and

was scheduled to be released on or before September 2017. Before his scheduled

release date, in November 2016, the State filed a petition to have Stoddard civilly

committed as a sexually violent predator. See Tex. Health & Safety Code Ann.

§ 841.041(a) (West 2017). After a trial, the jury found that Stoddard was a sexually

violent predator, and the trial court ordered that he be civilly committed.

       Stoddard argues that the jury’s finding is not supported by factually sufficient

evidence, and we agree. To assist with our analysis, we will begin with a discussion of

the history of civil commitments of sexually violent predators before moving on to

the facts of this case.

I. A history of civil commitments of sexually violent predators

       A. Nationwide

       A proper evaluation of this case requires an understanding of the background

and development of civil commitment proceedings for sexually violent predators in

the United States. These proceedings are not new developments in the law—they

have been around in some fashion since at least the 1930s. See Christy Jack & Jessica

Marsh, Civil Commitment: Coming to a Town Near You, State Bar of Tex. Prof. Dev.

Program, Advanced Criminal Law Course (2017) (citing Roxanna Lieb, Vernon

Quinsey & Lucy Berliner, Sexual Predators and Social Policy, 23 Crime & Just. 43, 55

                                           3
(1998) (hereinafter Lieb, 23 Crime & Just.)). But early versions of so-called “sexual

psychopath” laws cast a broad net and were often criticized for failing to distinguish

the more violent sex offenders from the less serious ones (i.e., peeping Toms). See

Lieb, 23 Crime & Just. at 63–65. After reaching a peak across the nation in the mid-

1960s, these laws eventually fell into disfavor primarily because of perceived abuses,

and many of them were repealed by the mid-1980s. See Tamara Rice Lave & Franklin

E. Zimring, Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous

Data, 55 Am. Crim. L. Rev. 705, 711–12 (2018) (discussing reports of prosecutors’ use

of sexual psychopath proceedings “in otherwise weak cases to lock away nuisance

offenders for indefinite periods of time” and in conditions of “bare custodial

confinement” with no attempt at clinical treatment); Lieb, 23 Crime & Just. at 65.

       A new generation of civil commitment laws targeting sex offenders began in

1990 with Washington’s passage of the first “sexually violent predator” civil

commitment laws, laws that were inspired by the case of Earl Kenneth Shriner. Lieb,

23   Crime     &    Just.   at   66;   see   also   Wikipedia:     Earl    Kenneth   Shriner,

https://en.wikipedia.org/wiki/Earl_Kenneth_Shriner (last visited Sept. 20, 2018).

Shriner was a mentally retarded sex offender with a 24-year history of killing, sexual

assault, and kidnapping. Lieb, 23 Crime & Just. at 66. Washington prison officials

attempted to have him civilly committed after his service of ten years in prison and

their discovery of his plans to torture children after his release. Id. These attempts

proved unsuccessful, and two years after his release Shriner kidnapped a seven-year-

                                               4
old boy, raped, strangled, and sexually mutilated him, and then left him in the woods

to die. Id.

       In response to the public outcry over the heinous crime, a task force was

appointed and proposed a solution that was subsequently enacted into law. The laws

passed were intended to address a group of “small but exceedingly dangerous . . .

sexually violent predators” that were not amenable to already available means for

involuntary commitment.     Wash. Rev. Code. Ann. § 71.09.010 (amended 2001).

Washington’s statutory scheme provided a means to civilly commit sex offenders with

at least one prior crime of sexual violence and upon a showing that they suffered from

a “mental abnormality or personality disorder” that made them likely to engage in

future predatory acts of sexual violence. Id. § 71.09.020 (amended 2015).

       Washington’s approach became a model for other states, and in 1997 the

United States Supreme Court gave these laws its blessing in Kansas v. Hendricks, 521

U.S. 346, 117 S. Ct. 2072 (1997). Kansas’s Sexually Violent Predator Act was enacted

in 1994, and the first person to be committed under it was Leroy Hendricks. Id. at

350, 117 S. Ct. at 2076. Hendricks had a long history of sexually molesting children.

Id. He was convicted in 1984 of taking “indecent liberties” with two 13-year-old boys

and was sentenced to ten years’ confinement. Id. at 353, 117 S. Ct. at 2078. The

Supreme Court described Hendricks’s long history of predatory conduct based upon

his own testimony at the civil commitment hearing as a



                                          5
      chilling history of repeated child sexual molestation and abuse, beginning
      in 1955 when he exposed his genitals to two young girls. At that time,
      he pleaded guilty to indecent exposure. Then, in 1957, he was convicted
      of lewdness involving a young girl and received a brief jail sentence. In
      1960, he molested two young boys while he worked for a carnival. After
      serving two years in prison for that offense, he was paroled, only to be
      rearrested for molesting a 7-year-old girl. Attempts were made to treat
      him for his sexual deviance, and in 1965 he was considered “safe to be at
      large,” and was discharged from a state psychiatric hospital. . . .

              Shortly thereafter, however, Hendricks sexually assaulted another
      young boy and girl—he performed oral sex on the 8-year-old girl and
      fondled the 11-year-old boy. He was again imprisoned in 1967, but
      refused to participate in a sex offender treatment program, and thus
      remained incarcerated until his parole in 1972. Diagnosed as a
      pedophile, Hendricks entered into, but then abandoned, a treatment
      program. . . . [S]oon after his 1972 parole, Hendricks began to abuse his
      own stepdaughter and stepson. He forced the children to engage in
      sexual activity with him over a period of approximately four years.
      Then, as noted above, Hendricks was convicted of “taking indecent
      liberties” with two adolescent boys after he attempted to fondle them.

Id. at 354–55, 117 S. Ct. at 2078. At trial Hendricks admitted that he could not

control his urges to molest children, despite his claimed recognition of the harm

caused by his behavior and stated “that the only sure way he could keep from sexually

abusing children in the future was ‘to die.’” Id. at 355, 117 S. Ct. at 2078. Hendricks

agreed with the state physician’s diagnosis that he suffered from pedophilia and told

the physician that “treatment is bull****.” Id. at 355, 117 S. Ct. at 2079.

      The Supreme Court rejected Hendricks’s claims that Kansas’s Sexually Violent

Predator Act violated the requirements of substantive due process and the

prohibitions of double jeopardy and ex post facto lawmaking. Id. at 356–71, 117

S. Ct. at 2079–2086. But in so doing, the court noted that simply being dangerous is

                                            6
not sufficient cause for indefinite involuntary commitment. Id. at 358, 117 S. Ct. at

2080.

        B. In Texas

        Legislative efforts to establish sexually violent predator civil commitment

proceedings in Texas began in 1995 with a bill to establish court-ordered mental

health services for those offenders deemed to be sexually violent predators. Tex. H.B.

595, 74th Leg., R.S. (1995). That effort and a second in 1997 were unsuccessful. See

id.; Tex. S.B. 77, 75th Leg., R.S. (1997).

        Finally, with the enactment of Chapter 841 of the health and safety code in

1999, the Texas Legislature recognized the existence of “a small but extremely

dangerous group of sexually violent predators” with behavioral abnormalities that are

not amenable to traditional mental illness treatment modalities and that make them

likely to engage in repeated predatory acts of sexual violence. Act of May 19, 1999,

76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4143, 4143 (codified at Tex.

Health & Safety Code Ann. § 841.001 (West 2017)).

        After 15 years of “[h]orrible mismanagement,” the system for civilly

committing sexually violent predators was overhauled in 2015. See Sen. Comm. on

Criminal Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S. (2015). At that time,

there were over 25,000 sex offenders in prison and there were 380 civilly committed

sexually violent predators—less than 2% of imprisoned sex offenders. Id. As of



                                             7
March 2017, there were 423 civilly committed sexually violent predators in Texas. See

Jack, Civil Commitment: Coming to a Town Near You at 16.

             1. The civil commitment process

      Pursuant to chapter 841, within two years of the anticipated release date of any

person serving a sentence for a sexually violent offense, the Texas Department of

Criminal Justice (TDCJ) is required to notify a multidisciplinary team of the

anticipated release. Tex. Health & Safety Code Ann. § 841.021 (West 2017). The

team, composed of individuals from various state agencies, including a mental health

professional, a licensed sex offender treatment provider, and a licensed peace officer,

then conducts a two-part assessment of the inmate. Id. § 841.022 (West 2017).

      First, the team assesses whether the person is a repeat sexually violent offender

and whether they believe he is likely to commit a sexually violent offense after release.

Id. § 841.022(c). The team then notifies TDCJ of its assessment and, if appropriate,

recommends the assessment of the person for a behavioral abnormality.                 Id.

§ 841.022(c)(2)–(3). If the team recommends a behavioral abnormality assessment,

the second part of the assessment takes place.

      At that point, TDCJ must consult an expert to ascertain if the person suffers

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

sexual violence. Id. § 841.023(a) (West 2017). Based upon the expert’s opinion, if

TDCJ determines that he does suffer from a behavioral abnormality, TDCJ must give



                                           8
notice to the attorney representing the state for the county in which the person was

most recently convicted of a sexually violent offense. Id. § 841.023(b).

      After receiving TDCJ’s notice, the state’s attorney has 90 days to file a petition

for civil commitment. Id. § 841.041(b)(1). Once the petition is filed, the trial court is

required to conduct a trial within 270 days. Id. § 841.061(a) (West 2017). The statute

expressly grants the person certain rights during the proceeding, including the right to

appear at trial, the right to a jury trial, and the right to the effective assistance of

counsel. Id. §§ 841.061(b), (d), 841.144 (West 2017).

      To receive a civil commitment order, the State must show beyond a reasonable

doubt that the person (1) is a repeat sexually violent offender, and (2) suffers from a

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

violence. Id. § 841.003 (defining “sexually violent predator”), § 841.062(a) (West

2017) (imposing a “beyond reasonable doubt” burden of proof). The jury’s verdict

must be unanimous. Id. § 841.062(b).

             2. The terms of civil commitment

      If the factfinder determines that the person is a sexually violent predator, the

trial court must enter a civil commitment order. Id. § 841.081(a) (West 2017). But

before entering the order, the trial court may impose certain requirements, including

requirements that the person reside where instructed by the Texas Civil Commitment

Office (TCCO), that the person participate in and comply with a sex offender

treatment program, and that the person submit to tracking and any other appropriate

                                           9
supervision. Id. § 841.082 (West Supp. 2017). When the civil commitment order is

entered, it becomes immediately effective, and treatment and supervision will begin

once the person is released from a secure correctional facility. Id. § 841.081.

      When the person is released from TDCJ’s custody, TCCO bears responsibility

for providing the appropriate and necessary supervision and treatment. Id. § 841.007

(West 2017). TCCO accomplishes this through a tiered program that provides the

opportunity for the person to transition from a total confinement facility, to less

restrictive housing and supervision, and then to an eventual release from

commitment, depending on the person’s behavior and treatment. Id. § 841.0831

(West 2017). TCCO is required to transfer the person to less restrictive housing and

supervision if doing so is in the best interest of the person and conditions can be

imposed to adequately protect the community. Id. § 841.0834 (West Supp. 2017). But

TCCO may also transfer the person back to a more restrictive tier if it later

determines that such a transfer is necessary for further treatment and to protect the

community. Id.

             3. Review of commitment

      Any order of civil commitment must be periodically reviewed. If a civilly-

committed person does not petition for his release sooner, the statute requires a

“biennial” examination. Id. §§ 841.101–.102, .121 (West 2017). In this process, the

trial court judge reviews an updated report prepared by an expert regarding the

committed person’s status. Id. § 841.102. After reviewing the expert’s report, the trial

                                           10
court may either issue an order concluding the review or set a hearing for the purpose

of determining whether the terms of commitment should be modified or whether

probable cause exists to believe that the person’s behavioral abnormality has changed

to the extent that he is no longer likely to engage in a predatory act of sexual violence.

Id. If the trial court sets a hearing to determine whether probable cause exists, this

essentially becomes a de novo proceeding. Id.

II. The testimony at Stoddard’s civil commitment trial

      Stoddard’s civil commitment trial was held in July 2017.           Two witnesses

testified—Stoddard and Timothy Proctor, a forensic psychologist. Proctor opined

that Stoddard suffered from a behavioral abnormality that made him likely to engage

in a predatory act of sexual violence. Proctor based his assessment on one two-hour

interview of Stoddard conducted six months earlier, Stoddard’s deposition in this

case, the images that were the subject of Stoddard’s child pornography conviction,

records about Stoddard’s childhood and education, and a report from a separate

evaluation conducted by Dr. Jorge Varela. According to Proctor, Dr. Varela had

evaluated Stoddard first and determined that Stoddard had an unspecified behavioral

abnormality.

      Proctor identified a number of factors that he considered in evaluating

Stoddard, including: (A) Stoddard’s sexual deviancy, (B) Stoddard’s denial and

minimization of his conviction, (C) Stoddard’s participation in sex offender treatment,

(D) Stoddard’s personality traits, (E) Stoddard’s history of substance abuse,

                                           11
(F) Stoddard’s nonsexual offense history, (G) Stoddard’s employment and relationship

history, (H) Stoddard’s prison disciplinary history, and (I) protective factors.

       A. Sexual deviancy

       Proctor emphasized Stoddard’s sexual deviancy as a “very strong” factor and

spent much of his testimony addressing it.              He diagnosed Stoddard with

nonexclusive-type pedophilic disorder, meaning that Stoddard was sexually attracted

to male and female children and adults.

       Proctor explained in his testimony that his diagnosis of Stoddard was centered

upon Stoddard’s 2004 sex-offense convictions.            In Proctor’s view, Stoddard’s

possession of child pornography before his commission of sexual acts with the

children was significant as it indicated his heightened sexual interest in children. The

subsequent escalation of the abuse from possession of child pornography concerned

Proctor. He described the escalation of Stoddard’s perversion from possessing, and

presumably viewing, child pornography, to grooming Alice and Bobby, to repeatedly

abusing Alice, and finally to abusing Bobby and forcing them to perform sexual acts

on each other. According to Proctor, “[W]hen an offender uses grooming [or] has

shown a history of grooming children, that shows a history of going forward.”

      Proctor also emphasized Bobby’s gender and the children’s lack of a familial

relationship to Stoddard (Stoddard was not dating Linda or otherwise related to the

children). According to Proctor, sex offenders that abuse males pose a greater risk of

reoffending, as do offenders who prey upon children to whom they are not related.

                                            12
      B. Denial and minimization of the offenses

      Although Proctor admitted that Stoddard’s minimization and denial was “[t]he

weakest certainly” of the risk factors he identified,2 he spent much of his testimony

discussing Stoddard’s denial and minimization of his guilt for some of the acts that

were included within the 2004 convictions.

      Throughout the commitment proceedings, Stoddard denied several of the

charges of sexual abuse to which he had pleaded guilty, including the allegation that

he sexually abused Bobby, that he attempted anal sex with Alice, that he forced the

children to perform oral sex on each other, and that he knowingly possessed child

pornography. He denied grooming the children and alleged instead that someone else

must have groomed them—he claimed that Alice told him that her uncle had shown

her “stuff on the computer” while she was sitting in her uncle’s lap.

      Stoddard minimized the offenses he did admit to—his reciprocal oral sex with

Alice on two occasions over a span of two days—by insisting that Alice had watched

a pornographic video she found in his closet and told him “that she wanted to try

that.” Stoddard denied that the video Alice found was child pornography, and he

denied that he showed Bobby or her any pornographic videos.              And although

Stoddard minimized his abuse of Alice, he did admit at trial that he knew it was wrong


      2
         Proctor testified, “[W]hile it’s something that’s considered, . . . . [y]ou put
much less weight on it than you think. . . . It’s not as big a thing as you would think,
but it is something that still has some importance and that I consider.”


                                          13
while he was engaging in the sexual acts, but he did it anyway. Stoddard viewed his

abuses of Alice as a “mistake.”

       Stoddard also painted himself as a bystander to Alice and Bobby’s performance

of oral sex on each other, testifying,

       I probably caught them doing it four or five different times, maybe
       more, that I would just walk into the room, and they would be doing
       that. They would . . . both be naked. [Alice] would be on . . . her back,
       and [Bobby] would be on top of her acting like they were having sex.

According to Stoddard, he only pleaded guilty to the charge that he forced them to

have sex because his attorney would not allow him to plead no contest.

       Proctor viewed Stoddard’s minimization and denial as concerning and as

indicating that Stoddard did not understand his offenses and that he lacked self-

awareness, remorse, and empathy.         Proctor emphasized Stoddard’s behavior of

placing the blame on Alice as the instigator and viewed it as a reason to question

Stoddard’s version of the events.

       Proctor was also concerned by Stoddard’s minimization of his possession of

approximately 110 images of child pornography. Stoddard admitted that he had child

pornography on his computer but claimed that he had accidentally downloaded it

when viewing animated cartoons and could not remove it from the computer.

However, later in his testimony, Stoddard admitted that it was possible he visited child

pornography websites at some point. According to Proctor’s review of the images,




                                           14
Stoddard had possessed them for at least three years, indicating to Proctor a

“persistence” of Stoddard’s interest.

      C. Sex offender treatment program

      Proctor admitted that pedophilia is treatable, although not curable. By the time

of trial, Stoddard was about halfway through a nine-month sex offender treatment

program in prison. Proctor testified that Stoddard did not do well in the beginning of

treatment and struggled to commit to the treatment. After that, Stoddard began to

get better and the treatment notes were positive. Near the time of trial, though, there

were notes that concerned Proctor—notes about missing a session without an excuse,

not taking responsibility for missing a session, being nervous and preoccupied by the

commitment proceedings, and minimizing things like his child pornography

possession.

      Proctor identified Stoddard’s treatment successes, like Stoddard’s partial

admission to his abuse of Alice.        Although Proctor still identified Stoddard’s

minimization and denial of the offenses as a stumbling block to making progress in

treatment, he viewed Stoddard’s admission as a sign that Stoddard was open to

treatment. He also recognized the significance of Stoddard’s ability and willingness to

identify his “high risk situations” in his deposition. At trial, Stoddard identified his

high risk situation and triggers as being in the presence of “a naked child wanting to

have sex with [him].”



                                          15
       Proctor also discussed his concerns with Stoddard’s treatment progress, such as

his inability to verbalize an understanding of his offense cycle and his struggle to

present his “layout” in his treatment group, which was used to “report[] his history

and where he’s coming from.” Proctor admitted that Stoddard may not have learned

these things yet in his treatment but said he “would be surprised” if he had not.

Proctor expressed his view that Stoddard displayed “problems with insight, and . . .

some general indicators of some problems with progress again.”

       While Proctor also noted that Stoddard had broken treatment rules by

masturbating, he admitted that it was significant that Stoddard self-reported his

violation of the rules.

       Finally, Proctor cautioned that even if Stoddard finished his sex offender

treatment program, it may “lower his risk [of reoffending] a small amount[ but] it

would not lower it to the amount that would change [Proctor’s] opinion about him

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

sexual violence.” Stoddard himself also acknowledged in his trial testimony his need

for the sex offender treatment program and for more counseling, and he admitted

that he had a problem dealing with sex.

       D. Antisocial traits and testing results

       Proctor did not diagnose Stoddard with antisocial disorder or psychopathy, but

he testified that Stoddard exhibited antisocial and psychopathic traits. He explained

that Stoddard’s antisocial traits meant he was prone to “breaking rules, not following

                                          16
through with obligations, doing things that are impulsive or aggressive, being

dishonest.” He described an example of an “antisocial lifestyle” as “somebody who’s

not living a stable law-abiding kind of life. They’re somebody who’s not following the

rules and regulations, getting into trouble, kind of bouncing around, not stable in their

social life, their work life, that kind of thing.” As for psychopathy, Proctor described

it as a “severe type of antisocial personality” that is frequently seen in a criminal

setting.

       Antisocial disorder is relatively common in criminal populations—Proctor

testified that “maybe up to 75 percent of people in jail or prisons are antisocial.” He

estimated that “like 20 percent or so” of the criminal population have psychopathy

“or at least strong psychopathic traits.”

       Proctor explained his use of two actuarial tests as part of his process: the

Static-99 and the Psychopathy Checklist Revised (PCLR).

       The Static-99 is a form with ten research-based, objective risk factors indicative

of a person’s risk of sexual offending.3 The factors include the person’s age, their

prior sex-offense convictions, prior nonsexual offense convictions, abuse the person



       3
        Proctor also used an instrument called the Risk of Sexual Violence Protocol
(RSVP) to administer the Static-99. He described it as another list of risk factors to
take into consideration but differentiated it from the Static-99 on the basis that the
RSVP is not an actuarial test. For convenience and based on how it is discussed in
the record, we will refer to Proctor’s observations from the RSVP as part of his
overall observations drawn from his administration of the Static-99.


                                            17
suffered as a child,4 and characteristics of their victims such as their relationship to the

person and whether they were males. Each factor is assigned a point value.

       According to Proctor, a “typical score” for a sex offender outside of Texas is a

two, and a “typical score” for a sex offender in Texas is a three. He scored Stoddard

as a four and testified that this placed Stoddard into the “above average risk range.”

Proctor admitted that Dr. Varela scored Stoddard as a three. Although Proctor

disapproved of the practice of assigning a percentage to the predicted recidivism rate

corresponding to a Static-99 score, he admitted that a person such as Stoddard who

scored a four is generally considered to have a recidivism rate of 5.5 percent.

       Proctor used the PCLR to assess whether Stoddard was a psychopath. That

test uses 20 personality traits to assign a number on a 40-point scale. According to

Stoddard, a psychopath generally scores a 30 or higher and an “average” person’s

score would be lower than 10. Proctor scored Stoddard as a 27. Proctor admitted on

cross-examination that the PCLR is a better indicator of general recidivism than of

sexual offense recidivism.

       E. Substance abuse

       Proctor cited Stoddard’s “significant history of substance abuse, particularly

marijuana and cocaine” as another risk factor.         According to Proctor, Stoddard


       In administering the Static-99, Proctor learned that Stoddard was sexually
       4

abused as a child. Stoddard explained at trial that when he was eight, his ten-year-old
male cousin engaged in oral sex with him. Stoddard described it as “experimental.”


                                            18
admitted that he was a “significant substance user for a long time” and that it “caused

a lot of problems in his life” and particularly in his relationships.

       However, Stoddard’s substance abuse habit was well under control by the time

he committed the 2004 offenses, a fact Proctor acknowledged.            According to

Stoddard, he last used drugs in 1984 and last used alcohol in 1994. Stoddard testified

that he had attended Narcotics Anonymous (NA) for his drug problems and that he

attended Alcoholics Anonymous (AA) “pretty much every day” before he went to

prison. Despite the time that had passed since Stoddard’s use of drugs or alcohol,

Proctor insisted that his history of substance abuse was still significant because “it

disinhibits” people and “brings out things” and “loosens people up.”

       F. Nonsexual offenses

       Proctor testified that he considered Stoddard’s nonsexual criminal history,

including unadjudicated offenses. Proctor explained, “Having a prior criminal history

in general increases your risk of sex offending,” and he testified that he considered

unadjudicated offenses because “what we know about sexual offending is a lot of it

goes undetected.”

       According to Stoddard, he had been arrested 10 to 12 times as an adult but had

never spent time in prison until he was convicted of the sex offenses in 2004. He

acknowledged that his first run-in with police, an incident that Proctor also mentioned

in his testimony, took place when he was 10 (he was 52 at the time of trial) when he



                                             19
shot a neighborhood girl in the leg with a pellet gun because she was beating up his

brother. He believed that he was ordered to perform community service as a result.

      Proctor testified that Stoddard had a history of domestic-violence assaults, theft

of a vehicle, and drug charges; Stoddard’s summary of his criminal history was similar.

Stoddard testified that he was twice arrested for family-violence assault against his

wife, who he said was bipolar. Proctor identified this assaultive behavior as a risk

factor for reoffending.

      Proctor also testified that Stoddard had previously violated probation and that

this was significant in displaying Stoddard’s inability to control his behavior, but

Stoddard denied ever having had a term of probation revoked.

      G. Employment and relationship history

      Proctor also considered Stoddard’s “[v]ery unstable” employment history. He

admitted that Stoddard said he had one job for several years—Stoddard testified he

held a construction job for nine years—but Proctor also testified that Stoddard said

that “in the case of a lot of jobs, he would hold the job for a while and then either

leave or get fired.” Proctor testified that a person with an unstable employment

history was more likely to reoffend.

      Proctor also considered Stoddard’s “unstable” relationship history and noted

Stoddard’s “issues with domestic violence, wives and girlfriends making various kinds

of accusations against him,” some of which Stoddard admitted were true. Proctor

also noted his concern about Stoddard’s relationships and association with other

                                          20
people that “are engaging in substance use and criminal behavior,” although he did

not identify any such people with whom Stoddard was supposedly associated.

      Proctor testified that Stoddard lacked an adequate support system and viewed

this as another risk factor. Stoddard testified that he would rely upon NA, AA, and

continuing sex offender treatment for support once he was released.

      H. Behavior in prison

      Proctor addressed Stoddard’s “institutional adjustment,” or behavior in prison.

He noted that Stoddard had been disciplined but was “far from the worst” Proctor

had seen. On cross-examination, Proctor admitted that Stoddard’s disciplinary history

in prison was comprised of minor violations like leaving things out of place or leaving

a plug in a wall. He admitted that it was “very rare” to find an offender that had no

disciplinary history in prison. However, he noted that inmates with pedophilia are

generally not involved in trouble in prison because their target victims—children—are

not around.

      I. Protective factors

      In addition to risk factors, Proctor identified certain protective factors that he

weighed against the risk factors.     One was Stoddard’s age over 50 and Proctor

testified that “as a group, as sex offenders get older, their risk of sex offending starts

to go down.”      Another protective factor was his participation in sex offender

treatment, although he downplayed this because it was a short program “and he is

having struggles in treatment again, it appears.”

                                           21
                                      Discussion

      In his first two issues, Stoddard argues that the evidence is legally and factually

insufficient to support the jury’s conclusion that he is a sexually violent predator.

Because we agree that the evidence is factually insufficient, we reverse the trial court’s

judgment and do not need to reach Stoddard’s third issue. See Tex. R. App. P. 47.1.

I. Legal sufficiency

      Stoddard argues in his first issue that the evidence is legally insufficient to

support the jury’s verdict finding him to be a sexually violent predator. More

specifically, Stoddard argues that Proctor’s testimony amounts to no evidence because

it is “misleading, conclusory, and speculative.” We disagree.

      We review sexually violent predator civil commitment proceedings for legal

sufficiency of the evidence using the appellate standard of review applied in criminal

cases. In re Commitment of Short, 521 S.W.3d 908, 911 (Tex. App.—Fort Worth 2017,

no pet.).   We assess the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could find the statutory elements required

for commitment beyond a reasonable doubt. Id.

      To have an offender civilly committed, the State must show beyond a

reasonable doubt that the person (1) is a repeat sexually violent offender, and

(2) 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 (defining

“sexually violent predator”), § 841.062(a) (West 2017) (imposing a “beyond reasonable

                                           22
doubt” burden of proof). The evidence undoubtedly qualifies Stoddard as a sexually

violent offender because he has more than one conviction for a sexually violent

offense—aggravated sexual assault. See id. § 841.003(b) (defining “repeat sexually

violent offender” as a person who has been convicted of more than one sexually

violent offense).

         Proctor testified that he diagnosed Stoddard with pedophilia and antisocial and

psychopathic traits, and that these diagnoses were part of the basis of his opinion that

Stoddard suffered from a behavioral abnormality that made him likely to engage in a

predatory act of sexual violence.       Stoddard argues that Proctor’s opinion was

conclusory or speculative, but Proctor testified to his review of relevant records, his

interview of Stoddard, his review of Stoddard’s deposition, and his use of actuarial

tests. He described the various risk factors that he considered. Proctor provided

sufficient, evidence-based support for his opinion, and we therefore decline

Stoddard’s request to exclude Proctor’s testimony from our consideration. See In re

Commitment of Cox, No. 09-11-00100-CV, 2012 WL 759049, at *7 (Tex. App.—

Beaumont Mar. 8, 2012, pet. denied) (mem. op.) (holding Proctor’s expert opinion

was not unsupported speculation).

         Viewing the evidence in the light most favorable to the jury’s verdict, we hold

that it is legally sufficient to support the jury’s finding and overrule Stoddard’s first

issue.



                                           23
II. Factual sufficiency

       Although we find the evidence to be legally sufficient, we agree with Stoddard

that the evidence is factually insufficient. While in civil commitment proceedings we

have adopted the criminal standard for reviewing legal sufficiency of the evidence, for

factual sufficiency reviews we apply the civil standard. See Short, 521 S.W.3d at 911.

Thus, when reviewing the factual sufficiency of the evidence to support the civil

commitment order, we weigh all 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.” Id. (quoting In re Commitment of Dever, 521 S.W.3d

84, 85–86 (Tex. App.—Fort Worth 2017, no pet.)). We reverse only if, after weighing

the evidence, we determine that the risk of an injustice remains too great to allow the

verdict to stand. Id.

       It is undisputed that Stoddard is a repeat sex offender because of his 2004

convictions. See Tex. Health & Safety Code Ann. § 841.003. But this does not end

the analysis. Chapter 841 requires that Stoddard suffer from a behavioral abnormality

that renders him a member of the small group of extremely dangerous sex offenders that

require civil commitment. See id. § 841.001. The evidence before us does not

establish that Stoddard belongs in that category of sex offenders.

       A. Criminal history

       By his own admission, Proctor’s evaluation centered upon the 2004

convictions—in his words, Stoddard’s convictions were “very much at the heart of

                                          24
this condition that affects his emotional or volitional capacity.” Although the crimes

were indisputably reprehensible, they pale in comparison to those of sexually violent

predators whose commitments have been upheld.

      In most cases we have surveyed, the civilly committed sexually violent predator

had a history of multiple sexual offenses over an extended period of time. For

example, in Short, over a period of six months the appellant engaged in a pattern of

violent sexual assaults in which he would lure women—mostly strangers—into his car

or would forcibly gain access to their apartments and then attempt to rape them. 521

S.W.3d at 912–13. On one of those occasions, he raped a woman three times in her

car. Id. at 913. Then, when she faked an asthma attack and claimed that she needed

to go to the hospital, he began driving to the hospital but then pulled over to the side

of the road, raped her a fourth time, hit her head against the window, and punched

her in the chest. Id. He did eventually drop her off at the hospital, and then he wiped

his fingerprints from her car. Id. One month after that, he asked a female employee

at an apartment complex to show him a model apartment. Id. Once inside the model

apartment, he pushed the woman into the closet, put her in a choke hold, and raped

her. Id. In the next month, he unsuccessfully attempted to rape a coworker (she

grabbed him by the testicles and fought back) and, ten days after that, followed her to

her home and forced her into his car. Id.

      In In re Commitment of Day, 342 S.W.3d 193, 202 (Tex. App.—Beaumont 2011,

pet. denied), the 23-year-old offender had a history of abducting and sexually

                                            25
assaulting at least two females in the span of four years, one of which was a 14-year-

old girl he abducted at gunpoint. He also had 15 arrests and 13 convictions for other

crimes, including shooting at his ex-girlfriend’s new boyfriend and assaulting a police

officer. Id. at 202. See also In re Commitment of Williams, 539 S.W.3d 429, 433–34, 440

(Tex. App.—Houston [1st Dist.] 2017, no pet.) (noting pattern of “very-well-

ingrained pedophilia” in offender including nine sex-related convictions and that he

had committed sexual offenses against multiple victims while employed as a PE

teacher at a parochial school); In re Commitment of Gomez, 535 S.W.3d 917, 919 (Tex.

App.—Corpus Christi 2017, no pet.) (upholding commitment of offender who was

convicted of five counts of aggravated sexual assault of his girlfriend’s 12-year-old

sister that occurred on different dates and whose probation was revoked because of

sexual acts committed with his minor daughters, aged 1 and 2, on “several

occasions”).

      The extreme nature of those offenses is consistent with the nationwide

evolution of sexually-violent-predator civil commitments. Our sexually-violent-

predator civil commitment proceeding structure is largely modeled after those

adopted in Washington in 1990 and later in Kansas, as evaluated in the Hendricks

decision of the United States Supreme Court.         Those cases involved especially

heinous, atrocious crimes. Washington enacted its policy in response to Earl Kenneth

Shriner’s kidnapping, rape, and sexual mutilation of a seven-year-old boy after the

state’s efforts to have him civilly committed were unsuccessful. See Wikipedia: Earl

                                          26
Kenneth Shriner. In Kansas, Hendricks was upfront about his long, “chilling” history of

sexually molesting children, which included everything from indecent exposure to

sexual assault. Hendricks, 521 U.S. at 354–55, 117 S. Ct. at 2078.

       In comparison, Stoddard had the two 2004 convictions for aggravated sexual

assaults of Alice and Bobby, ages 7 and 6, and the 2004 conviction for possession of

child pornography. Records indicated that the girl alleged that he forced her to

perform oral sex on him 10 to 11 times; Stoddard admitted to it happening twice. He

denied having sexually abused the boy, despite having pleaded guilty to that charge.

And although Proctor weighed Stoddard’s denial and minimization of the offenses

against him, Proctor admitted that an offender’s denial and minimization was the

“weakest certainly” of the risk factors that he considered.

       Furthermore, although these are admittedly serious crimes and classify as

sexually violent crimes, it is significant that the jury did not assess Stoddard even close

to the maximum sentence for these crimes. Although the maximum sentence was 99

years for each of the aggravated sexual assault convictions, the jury sentenced

Stoddard to 20 years for each.          Tex. Penal Code Ann. § 12.32 (West 2011)

(designating the punishment range for a first-degree felony as 5–99 years), § 22.021

(classifying aggravated sexual assault as a first-degree felony).

       As for other criminal history, little to no evidence was offered of the timing or

circumstances of other offenses. Proctor provided little detail regarding Stoddard’s

past arrests and convictions and relied on an incident from Stoddard’s childhood

                                            27
when, at age 10 (he was 52 at the time of trial), he shot someone in the leg with a

pellet gun who was beating up his brother.          And while, according to Proctor,

Stoddard had past convictions for domestic violence offenses, a probation revocation,

theft of a vehicle, possession of drug paraphernalia, “vehicle-related violations kind of

dealing with irresponsibility,” “a lot of substance-related things,” and “[p]roperty

damage,” none of these were sex offenses, no dates were provided for these offenses,

and no judgments of conviction were admitted into evidence. Stoddard, on the other

hand, testified that he had been convicted of “unlawful use of a vehicle, assault, under

the influence of drugs,” and had been arrested approximately twice for family-

violence assault against a bipolar ex-wife. He also denied serving any time in prison

for any of his past nonsexual offenses.

      This sparse evidence of Stoddard’s criminal history is distinguishable from that

at issue in Short and Day. Unlike the criminal histories in those cases, Stoddard’s

criminal history does not establish a pattern of violent offenses, whether sexual in

nature or not. When we view his criminal history in light of the weak evidence of

other factors considered by Proctor, it is simply not enough to qualify Stoddard as

one of the “extremely dangerous” sex offenders for whom these civil commitments are

intended.

      B. Mental illness diagnoses and substance abuse disorder

      Proctor’s admission that “maybe up to 75 percent of people in jail or prisons

are antisocial” undermines any assessment that Stoddard, whom Proctor diagnosed as

                                           28
simply having antisocial “traits,” is part of the “small but extremely dangerous” group of

sex offenders who qualify as sexually violent predators worthy of civil commitments.

See Tex. Health & Safety Code Ann. § 841.001 (emphasis added).

      Likewise, Proctor testified that Stoddard scored a four on the Static-99 test and

acknowledged that this was only one or two points above the typical score of most

sex offenders. This further indicates that Stoddard did not fall into the small group of

extremely dangerous sex offenders. See, e.g., In re Commitment of Bohannan, 388 S.W.3d

296, 301 (Tex. 2012) (noting offender scored a five on Static-99, meaning “moderately

high risk”), cert. denied, 569 U.S. 1009 (2013); Day, 342 S.W.3d at 203 (noting offender

scored a six on Static-99); In re Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *3

(Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.) (noting offender scored an

eight and was therefore a “high risk” for reoffending).

      Nor did Proctor diagnose Stoddard as a psychopath. Proctor scored Stoddard

as a 27 on a PCLR test (a psychopathy checklist), three points below the cutoff to be

considered a psychopath. Cf. In re Commitment of Conley, No. 09-10-00383-CV, 2011

WL 4537938, at *2 (Tex. App.—Beaumont Sept. 29, 2011, no pet.) (mem op.) (noting

Proctor’s testimony that offender scored a 30 on PCLR, classifying him as a

psychopath, an “extreme type of antisocial personality”). Proctor estimated that “like

20 percent or so” of the criminal population has psychopathy “or at least strong

psychopathic traits,” and yet he did not classify Stoddard as one of those inmates.



                                           29
      Finally, Proctor’s diagnosis of substance abuse disorder and claim that this

heightened the risk that Stoddard would be more likely to act on inappropriate

impulses is unconvincing. Proctor purported to make a contemporaneous diagnosis

of substance abuse disorder, despite the absence of evidence that Stoddard had used

alcohol or drugs in more than two decades. The only evidence in this record as to

Stoddard’s drug and alcohol use established that he had stopped using drugs almost

20 years before committing the sex offenses in 2003, and that he had stopped using

alcohol almost 10 years before.       Contrary to Proctor’s assessment, Stoddard’s

uncontroverted testimony to his sobriety since 1994—and his participating in AA and

NA—demonstrated an ability to control himself and to successfully participate in

treatment.

      C. Sex offender treatment program

      Proctor acknowledged that research has shown treatment is effective in

reducing the risk of sex offending and in treating pedophilia. But he minimized

Stoddard’s participation in a sex offender treatment program, partly because he felt it

was a short program (it was a nine-month program). Proctor noted that it was

significant that Stoddard could not identify his triggers or verbalize an understanding

of his offense cycle, but also acknowledged that he based his opinion on information

obtained when Stoddard was only partly through the program. And although Proctor

expressed concern that Stoddard failed to exhibit an appropriate amount of remorse



                                          30
and empathy, he also admitted on cross-examination that denial and minimization is

considered the “weakest certainly” of the risk factors he considered.

      Additionally, the trial court did not allow Stoddard to testify that he must

complete sex offender treatment before being released on parole. This ruling is the

subject of Stoddard’s third issue on appeal, an issue we need not decide in light of our

holding that the evidence is factually insufficient. See Tex. R. App. P. 47.1. But we

note that the State opened the door to this evidence by emphasizing, through

Proctor’s testimony, Stoddard’s failure to complete treatment as a reason to civilly

commit him.      Basic math tells us that it was impossible for Stoddard to have

completed a nine-month treatment program that he was only permitted to start six

months prior to trial.     In the very least, this consideration weakens Proctor’s

assessment of Stoddard’s failure to complete treatment as a factor weighing in favor

of commitment.

      D. Other factors

      Other factors considered by Proctor included Stoddard’s “[v]ery unstable”

employment history, unstable relationship history, and problems with “planning.”

His testimony on this point was even more troublesome than his sketchy description

of Stoddard’s nonsexual criminal history. With regard to employment, relationship

and “planning” history, Proctor provided no detail or context for his conclusory

assessment of Stoddard’s deficiencies in these three areas.



                                           31
                                      Conclusion

      There are currently 141,590 inmates incarcerated in Texas prisons. See Texas

Tribune, Texas Prison Inmates, www.texastribune.org/library/data/texas-prisons (last

visited Sept. 13, 2018). Of the convictions for which those inmates are serving time,

at least 38,025 were sexually violent offenses.               Texas Tribune, Crimes,

www.texastribune.org/library/data/texas-prisons/crimes (last visited Sept. 13, 2018).

To hold that Proctor’s testimony—which by his own admission centered upon the

2004 convictions themselves—provided the necessary evidence to show, beyond a

reasonable doubt, that Stoddard should be considered one of the “small but extremely

dangerous” sex offenders for which civil commitments are warranted, would open the

door to civil commitment of most—if not all—sex offenders who are currently

incarcerated and serving the sentences imposed upon them for their crimes. It would

open the door to potential abuse by allowing the State a second bite at the apple when

a jury imposes a lighter sentence than the State sought for the underlying crime.

Because liberty issues with serious constitutional implications are present with regard

to these proceedings, the legislature has found that civil commitments should target

only those sex offenders who “have a behavioral abnormality that is not amenable to

traditional mental illness treatment modalities,” rendering them “likely to engage in

repeated predatory acts of sexual violence.”       Tex. Health & Safety Code Ann.

§ 841.001. The State having fallen short of this standard in its proof at trial, the risk

of injustice compels our ordering a new trial. See Dever, 521 S.W.3d at 85–86.

                                           32
      Having sustained Appellant’s second issue and having held that the evidence is

factually insufficient to support the trial court’s order civilly committing Stoddard, we

reverse the trial court’s judgment and remand the case to the trial court for a new trial.

See Day, 342 S.W.3d at 213 (“[I]f in the view of the appellate court weighing the

evidence, the risk of injustice remains too great to allow the verdict to stand, the

appellate court may grant the defendant a new trial.”).


                                                       /s/ Bonnie Sudderth

                                                       Bonnie Sudderth
                                                       Chief Justice

Delivered: September 27, 2018




                                           33
