REVERSE and REMAND; Opinion Filed March 31, 2020




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00186-CV

         IN RE THE COMMITMENT OF KEVIN JOE MUMFORD

               On Appeal from the Criminal District Court No. 4
                            Dallas County, Texas
                     Trial Court Cause No. CV 1870001

                        MEMORANDUM OPINION
                   Before Justices Myers, Schenck, and Carlyle
                            Opinion by Justice Myers
      Kevin Joe Mumford appeals the trial court’s judgment adjudging him to be 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. Appellant brings six issues on appeal. Appellant contends

the trial court erred by admitting into evidence the curriculum vitae and

Multidisciplinary Report of Dr. Darrell Turner after excluding the State’s expert

witness from testifying.   Appellant also contends the evidence is legally and

factually insufficient to support the jury’s finding that appellant has a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.
We conclude the trial court erred by admitting Dr. Turner’s report, and we reverse

the trial court’s judgment and remand the cause for further proceedings.

                                 BACKGROUND

      Appellant has three convictions for sexual offenses. In 2008, appellant

pleaded guilty with a plea bargain to two charges of indecency with a child and was

sentenced to two years’ imprisonment in each case.           Appellant testified the

complainants, his nieces aged nine and eleven years old, said he touched their breasts

and genitals over their clothes. Appellant testified he did not commit the offenses

and that he pleaded guilty to get out of jail sooner. In 2013, three years after his

release from prison, appellant was arrested for touching his fifteen-year-old daughter

inappropriately. The daughter made an outcry that appellant had touched her breasts

and genitals. She also made an outcry that appellant told her to touch his penis if

she wanted to use a cell phone. The daughter reported she had been abused in this

manner for several years. Appellant testified he did not commit the offense, but he

pleaded guilty and was sentenced to eight years’ imprisonment.

      In 2018, the State filed a petition requesting that appellant be found to be a

sexually violent predator and that he be committed pursuant to the Sexually Violent

Predator Act. Appellant was examined by Dr. Darrell Turner, who concluded in a

report that appellant “does suffer from a behavioral abnormality that makes him

likely to engage in future acts of predatory sexual violence.” (Emphasis omitted.)

The State planned to have Dr. Randall Price testify at the trial. However, the State

                                         –2–
failed to designate Dr. Price timely in its discovery responses, and the trial court

excluded Dr. Price from testifying. The trial court admitted Dr. Turner’s curriculum

vitae (CV) and report into evidence over appellant’s objection. Although Dr. Turner

had not been designated as an expert witness in the case, and the trial court barred

the State from calling Dr. Turner to testify, he was present at the trial, and the trial

court stated appellant could call him to cross-examine him concerning his report.

      At the trial, appellant was the only witness who testified before the jury. The

jury found beyond a reasonable doubt that appellant is a sexually violent predator.

The trial court accepted that finding and ordered that appellant be civilly committed

upon his release from prison.

                     SEXUALLY VIOLENT PREDATOR ACT

      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).



                                          –3–
      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).

                      SUFFICIENCY OF THE EVIDENCE

      In his fourth issue, appellant contends the evidence is legally insufficient to

support the jury’s finding that appellant has a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. In reviewing appeals from the

commitment of persons determined to be sexually violent predators, 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. We consider all the evidence admitted before the fact finder,

including improperly admitted evidence. Winfrey v. State, 393 S.W.3d 763, 767

(Tex. Crim. App. 2013).



                                         –4–
      Appellant argues the evidence is legally insufficient to support the jury’s

finding that he is a sexually violent predator because the only evidence that he had

a behavioral abnormality was Dr. Turner’s report and the trial court erred by

admitting it. Because we use the criminal standard of review for sufficiency of the

evidence, we consider “all evidence in the record of the trial, whether it was

admissible or inadmissible.” Id. (quoting Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999)). Therefore, we include Dr. Turner’s report in our review

of the evidence.

      Appellant argues that even if we consider Dr. Turner’s report, the evidence is

still insufficient to prove beyond a reasonable doubt that appellant has a behavioral

abnormality. In the report, Dr. Turner included a summary of his findings:

      Mr. Mumford is a sexual offender with three minor female victims.
      Two of the victims were his nieces and one was his biological daughter.
      He denied all offenses today, and engaged in victim blame. He has a
      relatively unremarkable non-sexual criminal offense history, and has
      relatively few disciplinary infractions while incarcerated on the instant
      offense, and these two factors serve in a protective nature. The fact that
      he has not offended against males or outside of his family also act[s] as
      factors that hold his level of risk at baseline. Acting as a risk factor is
      the offender[’]s lack of remorse and denial, as well as his offending
      against a victim as young as 9 and as old as 15 (increasing potential
      victim pool). Also germane to the offender’s overall risk is the fact that
      he seems to have been evaluated for a behavioral abnormality prior to
      his release on his incarceration due to the offending against his nieces.
      He was not committed, and he ultimately reoffended against his own
      daughter. In fact, he was required to register as a sex offender when he
      reoffended against his daughter. Additionally, the offending against his
      daughter was alleged by the victim to have been ongoing for many
      years. He does not consider himself to be a sex offender, and he does

                                         –5–
      not feel that he is in need of sex offender treatment. Additionally, the
      offender has a history of serious abuse of methamphetamine.

      The two most robust predictors of sexual recidivism, especially when
      coexisting, are anti sociality and sexual deviance. There is evidence of
      sexual deviance given the repeated offending against female children,
      two of three were pre-pubescent, over a period of time. His degree of
      psychopathy is only moderate, and this is not uncommon among child
      molesters. He reports no evidence of childhood conduct disordered
      behavior, but he has an unstable adult lifestyle and evidences antisocial
      features in his overall stability and interpersonal affective style. He
      denies his offenses and subsequently denies any possible negative
      impact he has had on his victims. His most recent offense occurred in
      2013, meaning that he has offended relatively recently and while close
      to his current age (which mitigates the protective nature of his age from
      an actuarial standpoint). His Static 99R score is low and this is
      protective but is seriously mitigated by the chronology of his offending
      and prior Static 99R score.

      In sum, based upon the records reviewed, the clinical interview, and
      testing conducted, taking all variables into consideration and using a
      clinically-adjusted actuarial approach, it is the opinion of the
      undersigned that Mr. Mumford represents a high risk for sexual re-
      offense and DOES suffer from a behavioral abnormality that makes
      him likely to engage in future acts of predatory sexual violence.
      Appellant argues that the evidence conclusively establishes that he does not

have a behavioral abnormality. Appellant points out that Dr. Turner states appellant

has a history of methamphetamine abuse but does not say whether appellant was

using methamphetamine at the time of the offense or whether that increased or

decreased appellant’s risk of reoffending. Appellant asserts that Dr. Turner’s

statement that a moderate level of psychopathy is “not uncommon among child

molesters” is extremely speculative. Appellant also points to the report’s statement

that he had a low Static 99R score as evidence of lack of behavioral abnormality.

                                        –6–
      The report does not, as appellant asserts, conclusively establish appellant’s

lack of a behavioral abnormality. Instead, the report provides Dr. Turner’s findings

supporting his conclusion that appellant “suffer[s] from a behavioral abnormality

that makes him likely to engage in future acts of predatory sexual violence.”

(Emphasis omitted.) Those findings include his denial and lack of remorse for the

offenses, the ages of the victims, the short period of time following his release until

he reoffended against his daughter, his lack of sex-offender treatment in prison, and

his belief that he does need sex-offender treatment.

      After considering all the evidence, we conclude a reasonable juror could have

found beyond a reasonable doubt that appellant suffers from a behavioral

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

We overrule appellant’s fourth issue.

               ADMISSIBILITY OF DR. TURNER’S REPORT

      In his first issue, appellant contends the trial court erred by admitting Dr.

Turner’s CV and expert report into evidence under the business-records exception

to the prohibition against the admission of hearsay evidence. See TEX. R. EVID.

803(6). That rule provides that if the other requirements are met, the evidence is to

be admitted if “the opponent fails to demonstrate that the source of information or

the method or circumstances of preparation indicate a lack of trustworthiness.” Id.

Documents prepared in anticipation of litigation generally lack the trustworthiness

necessary for admission under Rule 803(6). See Ortega v. Cach, LLC, 396 S.W.3d

                                         –7–
622, 630 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Appellant argues Dr.

Turner’s report was prepared in anticipation of litigation and, therefore, was not

admissible as a business record.

      The State argues that appellant did not object to the admission of the report

on the ground that it was prepared in anticipation of litigation. We disagree. After

jury selection and before opening statements, the trial court held a hearing outside

the presence of the jury to consider the parties’ motions in limine and admission of

the parties’ exhibits. The State objected to appellant’s ninth motion in limine, which

sought to have the trial court prohibit the State from any “attempt to convey to the

jury in any manner . . . [a]ny mention of a behavioral abnormality assessment or the

results of a behavioral assessment not performed by the testifying expert.” The

prosecutor told the court that the State intended to introduce Dr. Turner’s report as

a business record.      Appellant’s attorney then said, “Your Honor, it’s the

Respondent’s position that the business record intended to be offered by Petitioner

is clearly prepared in anticipation of litigation.” The trial court ruled that the motion

in limine was not applicable because there was not a testifying expert witness. The

trial court then considered the admissibility of the State’s exhibits. When the State

offered Dr. Turner’s report into evidence, appellant objected:

      The Respondent would renew our previous objections, that it is not
      proper under Texas Rules of Evidence, 803. It’s a violation of the
      statutory rights of confrontation under 8410613 [sic; presumably Texas
      Health & Safety Code § 841.061(d)(3)], a violation of his due process
      rights. We object again because it—it’s just being used to bolster his
                                          –8–
      records. And, essentially, he’s on the stand testifying, but the records
      will be testifying for him as an expert. We object to that, Your Honor.

(Emphasis added). The trial court admitted the report over appellant’s objections.

      For appellant’s objection to have been sufficient, it must have been

sufficiently specific “to make the trial court aware of the complaint.” TEX. R. APP.

P. 33.1(a)(1)(A).   During the discussion of appellant’s motion in limine, the

prosecutor said the report would be offered as a business record, and appellant’s

counsel said the report was prepared in anticipation of litigation. Even though the

admissibility of the report was not the precise matter before the trial court when

appellant made the objection, it was relevant to the discussion of the motion in

limine. It appears from the record that appellant made his objection to the exhibit a

short time later. Appellant’s objection renewing his previous objection should have

been close enough in time for the trial court to be aware that appellant was objecting

to the admission of the report as a business record on the ground that it had been

prepared in anticipation of litigation. Accordingly, we conclude this objection was

preserved for appellate review.

      We next consider whether the report was prepared in anticipation of litigation.

The report states that Dr. Turner’s forensic evaluation of appellant “was conducted

pursuant to request from the Texas Department of Criminal Justice under the

authority of the Texas Health and Safety Code, Title 11, Section 852 [sic].” There

is no section 852 in Title 11 of the Health and Safety Code, but the heading of Title


                                         –9–
11 is “Civil Commitment of Sexually Violent Predators.” The report also states the

reason appellant was referred to Dr. Turner:

      Mr. Kevin Mumford is a 44-year-old male who was referred by the
      TDCJ Civil Commitment Multidisciplinary Team for a forensic
      psychological evaluation to assist in the determination as to whether or
      not the offender has a behavioral abnormality that makes him likely to
      engage in future predatory acts of sexual violence.

Under Title 11, if a person is serving a sentence for a sexually violent offense, may

be a repeat sexually violent offender, and is within twenty-four months of being

released from incarceration, the Texas Department of Criminal Justice gives notice

to a multidisciplinary team. HEALTH & SAFETY § 841.021. The multidisciplinary

team then makes an assessment of “whether the person is likely to commit a sexually

violent offense after release.”     Id. §§ 841.022(c)(1), .023(a).      In making that

assessment, the Texas Department of Criminal Justice “shall use an expert to

examine the person” and “may contract for the expert services required by this

subsection.” Id. § 841.023(a). “If as a result of the assessment the Texas Department

of Criminal Justice believes that the person suffers from a behavioral abnormality,”

the Department must give notice to the State’s attorney. Id. § 841.023(b). The

State’s attorney may then file “a petition alleging that the person is a sexually violent

predator.” Id. § 841.041. If the trier of fact “determines that the person is a sexually

violent predator, the judge shall commit the person for treatment and supervision.”

Id. § 841.081(d). Because the report states it was prepared pursuant to a referral

from a multidisciplinary team under Title 11, the report was prepared in anticipation

                                          –10–
of litigation over whether appellant should be committed as a sexually violent

predator.

      The State argues the report was not prepared in anticipation of litigation

because Dr. Turner interviewed appellant on October 10, 2017, which was more than

three months before the State filed its petition to commit appellant on January 16,

2018. The report’s only purpose was to determine whether to seek commitment of

appellant, which could be achieved only by bringing this suit. See id. § 841.023.

      The State argues a person may be civilly committed under the Act solely on

documentary evidence, citing section 841.061(e): “The attorney representing the

state may rely on the petition filed under Section 841.041 and supplement the

petition with documentary evidence or live testimony.” Id. § 841.061(e) (emphasis

added). That provision does not purport to set aside the rules of evidence and civil

procedure. Instead, the Act provides those rules apply except as modified by the

Act. See id. § 841.146(b). No provision of the Act purports to set aside the rule

against the admission of hearsay evidence except as permitted by the rules. Nor does

any provision of the Act set aside the requirement that documents admitted under

the business-records exception to the hearsay rule be trustworthy.

      We conclude Dr. Turner’s report demonstrates that the circumstances of its

preparation indicate a lack of trustworthiness because it was prepared in anticipation

of litigation. Therefore, the trial court abused its discretion by admitting the report

into evidence.
                                         –11–
      Although we have determined that the trial court erred by admitting the report,

we may not reverse the trial court’s judgment unless we determine the error probably

caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a). In this case,

Dr. Turner’s report was the only evidence that appellant “suffers from a behavioral

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

violence.” Without evidence to support that finding, the jury could not have found

appellant was a sexually violent predator. See HEALTH & SAFETY § 841.003(a)(2).

Accordingly, we conclude the trial court’s admission of Dr. Turner’s report over

appellant’s objection was reversible error. Having determined the admission of the

report was reversible error, we need not address whether the trial court erred by

admitting Dr. Turner’s CV into evidence.

      We sustain appellant’s first issue. Having sustained the first issue, we need

not consider appellant’s remaining issues.

                                 CONCLUSION
      We reverse the trial court’s judgment and remand the cause to the trial court

for further proceedings.




                                             /Lana Myers/
                                             LANA MYERS
                                             JUSTICE

190186F.P05

                                        –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN RE THE COMMITMENT OF KEVIN                      On Appeal from the Criminal District Court
 JOE MUMFORD                                        No. 4, Dallas County, Texas
                                                    Trial Court Cause No. CV 1870001.
 No. 05-19-00186-CV                                 Opinion delivered by Justice Myers.
                                                    Justices Schenck and Carlyle participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellant Kevin Joe Mumford recover his costs of this appeal from
appellee The State of Texas.


Judgment entered this 31st day of March, 2020.




                                             –13–
