Affirmed and Memorandum Opinion filed March 12, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00143-CV

  IN RE THE COMMITMENT OF TIMOTHY WAYNE STONECIPHER


                    On Appeal from the 178th District Court
                             Harris County, Texas
                        Trial Court Cause No. 608785Z

                MEMORANDUM                        OPINION


      The State filed a civil petition to commit appellant Timothy Wayne
Stonecipher for involuntary treatment and supervision as a sexually violent predator.
Tex. Health & Safety Code §§ 841.001–.151. The jury found appellant is a sexually
violent predator and the trial court rendered a final judgment and order of civil
commitment. On appeal, appellant contends the evidence was legally and factually
insufficient to support the jury’s finding and the trial court erred in admitting
evidence. For the reasons set forth below, we affirm the trial court’s judgment.
                                  BACKGROUND

      In March 2017, prior to appellant’s scheduled release from the Texas
Department of Criminal Justice (“TDCJ”), the State of Texas filed a petition to
commit appellant as a sexually violent predator. See Tex. Health & Safety Code §§
841.001–.151. In reverse chronological order, the State alleged:

       Appellant was convicted in February 1992 of four charges of aggravated
        sexual assault of a child, an offense under Tex. Penal Code § 22.021, The
        offenses were committed in July 1988, October 1989, December 1989, and
        June 1990.
       Appellant was convicted in May 1987 of the offense of indecency with a
        child under Tex. Penal Code § 21.11(a) (1). That offense was committed
        in August 1986.
       Appellant was convicted in September 1983 in the State of Indiana of
        attempted child molesting, an attempted offense that contains elements
        substantially similar to the offense of indecency with a child under Tex.
        Penal Code § 21.11(a)(1). That offense was committed in May 29, 1983.
       Each of these offenses is a sexually violent offense as defined by Tex.
        Health & Safety Code § 841.002(8)(A).
       Appellant had been incarcerated for each of these convictions.
      Further, the State alleged appellant was assessed by TDCJ and determined to
suffer from a “behavioral abnormality,” pursuant to Section 841.023(a). Id. The
State asked the trier of fact to find appellant is a sexually violent predator and to
commit him for treatment and supervision.

      Testimony was given by appellant, Darrel Turner, M.D., a clinical
psychologist, and Sheri Gaines, M.D, a psychiatrist. The jury found appellant is a
sexually violent predator and the trial court rendered a final judgment and order of
civil commitment.




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                          SUFFICIENCY OF THE EVIDENCE

      In his first two issues appellant contends the evidence is legally and factually
insufficient to support the jury’s finding.

                      Applicable Law and Standard of Review

      The Civil Commitment of Sexually Violent Predators Act (“SVP Act”)
provides for the civil commitment of persons determined to be a sexually violent
predator (“SVP”). Tex. Health & Safety Code §§ 841.001–.151. Under the SVP Act,
a person is an SVP if the person “(1) is a repeat sexually violent offender; and (2)
suffers from a behavioral abnormality that makes the person likely to engage in a
predatory act of sexual violence.” Id. § 841.003(a). The statute defines “behavioral
abnormality” as “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). The commitment of a person as an SVP is a civil
proceeding, see In re Commitment of Fisher, 164 S.W.3d 637, 645–53 (Tex. 2005),
and the SVP Act requires the State to prove a person is a sexually violent predator
beyond a reasonable doubt. Tex. Health & Safety Code § 841.062(a).

      Because the State is required to prove this element beyond a reasonable doubt,
we review an appeal from such a proceeding using the same legal-sufficiency
standard applicable to criminal cases. See In re Commitment of Harris, 541 S.W.3d
322, 327 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Under this standard, we
review the evidence in the light most favorable to the verdict to determine whether
a rational fact finder could have found, beyond a reasonable doubt, the elements
required for commitment. Id. The jury is the sole judge of the witnesses’ credibility
and of the weight to be given to their testimony. Id. We review the factual sufficiency
of the evidence by considering all the evidence in a neutral light and asking whether
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a jury was rationally justified in finding that a person is an SVP beyond a reasonable
doubt. See id. Under this standard, we consider “whether a verdict that is supported
by legally sufficient evidence nevertheless reflects a risk of injustice that would
compel ordering a new trial.” Id.

                                        Issue

      Appellant challenges only a portion of the second element—that he suffers
from a behavioral abnormality. See Tex. Health & Safety Code § 841.003. 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). Appellant argues that the testimony
of the State’s witnesses focused on appellant’s past behavior “and ignored the
insurmountable evidence” that appellant did not suffer from a behavioral
abnormality at the time of trial. Appellant contends “[w]hile the facts may prove that
[appellant] may have had a behavioral abnormality 27 years ago, it does not support
a conclusion that [appellant] suffers from a behavioral abnormality at the time of his
civil commitment trial.”

                                 Relevant Evidence

1.    Appellant’s testimony

      Appellant testified that he was physically, emotionally, and sexually abused
as a child. He has attempted suicide approximately six times. When questioned about
the offenses for which he was convicted, appellant repeatedly equivocated as to his




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guilt, despite having pled guilty in each case. Appellant testified that all his offenses
were alcohol-related crimes.

      Appellant stated that he has changed in the past twenty-seven years. Appellant
testified that he is now impotent and has no sex drive or sexual fantasies. He has no
attraction to women and denied ever being sexually attracted to children. Appellant
testified that shortly after his most recent conviction, he requested information about
an orchiectomy, but he did not believe he needed the procedure to avoid re-
offending. Appellant testified that he was not afraid he would reoffend because of
the programs, including sex offender treatment (“SOTP”) and counseling, in which
he has participated.

      Appellant testified that he wrote a children’s book titled “Ghost Town” after
his first grandson was born. It is the first of a four-part adventure series that he has
entirely drafted and is intended to be a 52-book series. Appellant has also written for
“The Echo,” a state-published newspaper for the prison population. He testified that
he writes to encourage inmates.

2.    Dr. Turner’s testimony

      Dr. Darrel Turner, a forensic psychologist, received information about
appellant’s criminal history and his offenses from police departments, investigators,
district attorneys’ offices, victim statements, and appellant’s own statements. Turner
also reviewed the records of appellant’s behavior in prison, the programs he has
participated in while incarcerated, and prior interviews. Based on the records, his
interview with appellant, and his education, training and experience, Turner’s
clinical opinion is that appellant suffers from a behavioral abnormality that
predisposes him to engage in predatory acts of sexual violence.




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      Turner testified two risk factors exponentially increase an offender’s risk of
reoffending—the offender’s degree of anti-social traits and sexual deviance. When
both factors are present in the same person, as in appellant’s case, the risk of
offending is drastically higher.

      Turner defined sexual deviance as a sexual attraction to someone who is not
“basically a same age, consenting peer.” Turner testified that appellant “is sexually
deviant today” because appellant suffers from pedophilia—a sexual attraction to
prepubescent children, in his case boys. Pedophilia, now termed pedophilic disorder,
is a chronic condition. Turner was confident appellant’s pedophilic disorder, as
displayed when appellant was offending, still exists. Turner also diagnosed appellant
with adult anti-social behaviors.

      Appellant told Turner that when appellant was approximately twelve years,
he first noticed and was concerned about his sexual attraction to children. Turner
testified sexual attraction to younger children generally begins at puberty, which is
consistent with the profile of a pedophile.

      Turner considered appellant’s convictions in forming his opinion that
appellant has pedophilic disorder, sexual deviance, and a behavioral abnormality.
Appellant’s conviction arising from an incident at a bowling alley demonstrated risk
factors, because the two male victims were prepubescent and strangers to appellant,
appellant was intoxicated, appellant tried to sexually offend against them both at the
same time, appellant used physical restraint, and the incident happened in a public
place where the victim’s parents were present. Turner also testified that sexual
offenders whose victims are male have a higher degree of sexual deviance, and are
at a higher risk to reoffend than those whose victims are female, and that when the
sexual offense is against someone the sexual offender has known for less than
twenty-four hours it indicates a brazenness and level of anti-social behavior that

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increases the overall risk of reoffending beyond that of a sexual offender whose
victim is a member of their own family or circle of acquaintances. Also, Turner
opined that sexual offenders who are intoxicated when they commit a sexual offense
are at a higher risk of reoffending than those who are not intoxicated. Thus,
appellant’s state of intoxication at the time of the sexual offense increases his risk of
reoffending. The sexually offending behavior subjected appellant to a much higher
risk of getting caught, demonstrating the degree of impulsivity, as well as appellant’s
need to act on his sexually deviant urges.

      According to Turner, appellant has been inconsistent in his statements about
that sexual offense, which indicates that he is not being honest. Turner testified that
according to appellant, appellant has some memory deficits, but appellant can give
details about a lot of his life, except for the actual sexual offenses. Turner testified
that he believes appellant chooses not to tell the truth when it behooves him, or when
it makes him appear less deviant.

      Appellant was convicted and placed on probation for the sexual offense that
occurred at the bowling alley and committed another sexual offense while on
probation. A sexual offender who is caught, punished, and sexually reoffends while
on probation is at high risk to reoffend.

      Appellant gave a statement to police about the sexual offense he committed
while on probation for the sexual offense at the bowling alley. Turner found risk
factors in that statement. The victim was a three-year old boy, the sexual offense
occurred in appellant’s home where other children were present, and appellant
engaged in victim-blaming and did not take responsibility for his actions. Appellant
was convicted of that sexual offense and served two years of a six-year sentence.
When appellant was again released on probation, he was under more supervision
than before and had to engage in SOTP.

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      Within a month or two, while on probation, appellant sexually reoffended
against three prepubescent boys. Those sexual offenses, which underlay the
judgment and order of civil commitment being appealed, are further evidence of a
behavioral abnormality and a high risk to reoffend. Appellant gained access to the
three prepubescent boys through his own children, who, at appellant’s request,
invited the victims to his house. Appellant engaged in classic grooming behaviors of
giving gifts and using threats if the victims told anyone of the abuse. The evidence
of grooming is also a risk factor for reoffending and indicates a degree of anti-social
behavior.

      Turner was aware that appellant claims to have no sex drive. Turner does not
believe appellant was honest. Appellant told Turner that even though he is impotent,
he masturbates once every six months. Turner believes appellant has a very low sex
drive for adult women because he is an exclusive pedophile—a person who is only
attracted to prepubescent children. According to Turner, that is why appellant only
had sex with his wife on a handful of occasions and finds the idea of sex with her
unpleasant.

      Turner testified the notes reflect appellant has been in treatment for about a
year. The initial notes were not good, but the most recent notes have been positive.
Appellant is participating and providing feedback, and that is an improvement.
However, appellant is not able to talk about the cornerstones of SOPT, such as his
triggers, offense cycles, and why he was offending. Turner testified appellant is
sexually attracted to children and is anti-social enough to act on his attraction.
Appellant displays a “real lack of insight into why he’s offending, the urges that are
pushing him to offend, and just, quite frankly, the fact that this is his source of sexual
attraction.”



                                            8
      Turner testified appellant told Turner that appellant is writing children’s
books to help children recognize their own value. According to Turner, this is akin
to grooming victims. Turner testified it is the same motivation that, according to
appellant, led directly to his sexual offending in the past. The fact that appellant is
emotionally identifying with children through these books is another risk factor for
sexually reoffending. Research shows that pedophiles who emotionally identify with
children are at a higher risk to sexually reoffend. Turner testified the amount of time
appellant is spending writing children’s books with themes involving young boys,
given his identification throughout his life with troubled boys, is not good. Turner
stated, “[t]his is a career child molester writing children’s books. That’s a problem.”

      Turner did not see evidence that appellant had been involved in many courses
or self-help programs in prison; there were only a few. Turner testified appellant
needs more treatment. Appellant needs insight into his sexual deviance and to learn
more about his triggers and high-risk situations. Appellant must also learn more
about the impact his sexual offenses have on his victims. As an example, Turner
noted that appellant told Gaines, when asked what effect the offending had on the
boys at the bowling alley, that they have grown up and gotten over it. Turner
concluded appellant does not have much insight into how these sexual offenses
really impacted the boys. Although appellant’s increased participation is a positive
factor, it is not enough at this point. Turner testified appellant “certainly needs more
treatment.”

      Turner diagnosed appellant with severe and sustained alcohol use disorder.
Appellant used alcohol, marijuana, cocaine, and acid before he was imprisoned.
Appellant’s history of alcohol and substance abuse increases his risk of reoffending.

       Appellant admitted to using synthetic marijuana in prison within the last few
years. Turner testified the recent drug use increases appellant’s risk of reoffending.

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Turner concluded appellant has a high risk of reoffending, based on appellant’s
behavioral abnormality, which makes him likely to engage in predatory acts of
sexual violence.

3.    Dr. Sheri Gaines’ testimony

      Dr. Sheri Gaines, a forensic psychiatrist, evaluated appellant by reviewing
records—police reports, district attorneys’ reports, prison records, medical records,
victim statements, and Turner’s evaluation—and interviewing him. Gaines also
reviewed appellant’s deposition. Gaines testified that appellant has average
intellectual functioning. Generally, appellant was cooperative.

      Gaines diagnosed appellant with pedophilic disorder, which she described as
having sexual urges, fantasies, desires or behaviors directed at prepubescent children
for six months or longer, that have caused problems in the patient’s life. Appellant’s
sexual-offending history supports Gaines’ diagnosis.

      Gaines testified that Pedophilic disorder is a chronic condition that can lessen
over time. Sex-offender treatment is not a cure but can teach someone to manage
their deviant sexual behaviors.

      Gaines did not believe appellant’s condition has lessened over time based on
the records she reviewed, her interview with him, his long history of behaviors
consistent with pedophilic disorder, the number of victims, his thought processes,
and his difficulty understanding why he has these behaviors. Gaines’ opinion is that
appellant does have a behavioral abnormality that is a congenital or acquired
condition, and that has affected his emotional or volitional capacity.

      Gaines testified that appellant has been unable to control his deviant sexual
urges and has acted on them. Despite suffering severe consequences from this
deviant behavior, he has been unable to control it. Gaines found appellant to possess

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many antisocial personality traits and agrees that he has substance abuse disorder.
The substance abuse is significant because it lowers appellant’s inhibitions
sufficiently for him to act on his deviant sexual urges. Appellant showed a lack of
empathy, remorse, understanding or insight as to how his offenses affect his victims.
In Gaines’ opinion, appellant does not understand why he sexually offended against
those boys, which is another indicator of his poor insight.

      Appellant told Gaines that he lured the children in with care and compassion.
Gaines was alarmed that appellant is writing children’s books because he is a
pedophile and his technique is to ingratiate himself with young boys, gain their trust,
and depict himself as a hero and savior to groom his victims so he can abuse them.
Gaines also was concerned because the Internet could be used as a tool to recruit and
engage children in the future. Gaines testified appellant has a long way to go to
understand his sexual deviance and has minimized his behavior rather than
acknowledge it as a problem.

      Appellant told Gaines that he has no sex drive and has been impotent for many
years. She doubts the truth of that based on what appellant has told other examiners.
Gaines noted that appellant’s target population is young boys, but because of his
imprisonment has been deprived access to more victims.

      Appellant was ordered to undergo substance abuse treatment while under
supervision and was not incarcerated but was not compliant. Appellant did not have
any specific plans for his release, other than to publish children’s books on the
Internet, which Gaines believes is a very bad idea. Appellant had a hard time
articulating what he had learned, identifying his triggers, or describing his offense
cycle. According to Gaines, appellant appeared to have just begun the process of
learning about his sex offending.



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      Gaines testified that appellant’s sexual deviancy and his antisocial traits
combined to make him likely to sexually reoffend, and to be a danger to society.
Gaines testified that she found appellant currently suffers from a behavioral
abnormality that makes him likely to engage in predatory acts of sexual violence.

                                       Analysis

      Our review of the record does not reveal “insurmountable evidence” that
appellant no longer suffers from a behavioral abnormality. To the contrary, both
Turner and Gaines testified that appellant had, and still has, a behavioral
abnormality. Although appellant denied being sexually attracted to children
currently, he pled guilty to sexually assaulting five prepubescent boys and told
Turner there were at least three victims for which he was not caught. In the past,
appellant abused alcohol and drugs. In prison, he resumed abusing drugs—synthetic
marijuana. Despite the abuse he suffered as a child, which he can still recall in
graphic detail, appellant believes the children he sexually abused have “grown up
and gotten over it.” Appellant has been diagnosed with exclusive pedophilic disorder
and anti-social behavior, both of which put him at risk to sexually reoffend.
Appellant’s convictions demonstrate an escalation of the offending behavior and a
heightened risk of getting caught, which also puts him at risk to sexually reoffend.

      Appellant’s testimony at trial fails to reflect that he accepts responsibility for
his actions, understands his sexual deviance, or appreciates how to avoid reoffending
sexually in the future. The testimony of appellant and Turner indicates that despite
appellant’s lengthy imprisonment, he has only been in treatment for sexual deviance
for about a year. Both Turner and Gaines confirm that appellant needs more
treatment and is likely to sexually reoffend because he currently suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence.

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      Considering all of the evidence in the light most favorable to the verdict, we
conclude the jury could find beyond a reasonable doubt that appellant suffers from
a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Additionally, in considering all of the evidence in a neutral light, we
conclude the jury could find beyond a reasonable doubt that appellant suffers from
a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Appellant’s first and second issues are overruled.

                             ADMISSION OF EVIDENCE

      Appellant’s third issue argues the trial court erred in overruling his Rule 403
objections. See Tex. R. Evid. 403. Rule 403 provides the court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of unfair
prejudice. Trial courts have extensive discretion in evidentiary rulings, and we will
uphold such rulings if they are within the zone of reasonable disagreement. In the
Commitment of Grice, 558 S.W.3d 323, 327 (citing Diamond Offshore Servs. Ltd. v.
Williams, 542 S.W.3d 539, 545 (Tex. 2018)). Furthermore, even if the trial court’s
admission of evidence is erroneous, the error is harmless if the ruling probably
caused the rendition of an improper judgment. Grice, 558 S.W.3d at 329; Tex. R.
App. P. 44.1(a). “A successful challenge to evidentiary rulings usually requires the
complaining party to show that the judgment turns on the particular evidence
excluded or admitted.” Id. (citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617
(Tex. 2000).

       In his brief, appellant refers to four objections in the record. The first ruling
appellant complains of occurred during the following exchange:

      [The State] Okay. Was your intent with Dustin and Bobby and Dale to
      show them that they had value?
      [Appellant] That’s not a fair question. I’m not going to answer that

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      question because you’re turning -- take what I’m doing and revert it.
      I’m not answering that question. I’m not answering that question.
      [Defense Counsel] Objection. This is harassing. It’s asked and
      answered. And under 403, there’s no probative value.

The record reflects that after the trial court overruled the objection, the State asked
a different question.

      The third objection referred to in appellant’s brief was made following a back-
and-forth exchange between the State, the trial court, and appellant as to whether
appellant was being nonresponsive after the State asked whether he “pulled Dustin’s
pants down and rubbed his penis?” No objection was made by the defense when the
question was asked. Appellant refused to answer the question, prompting an
objection by the State, and an objection of relevance from the defense. After the trial
court sustained the State’s objection and overruled the defense relevance objection,
proceedings ended for that day. The following day the State resumed questioning
appellant about his prior convictions. This is when the fourth ruling appellant
complains of occurred. The State asked appellant, “Isn’t it true that you forced your
penis inside of Dustin’s mouth?” Counsel made a Rule 403 objection. The objection
was overruled. The record reflects appellant did not answer the question, although
he did answer that he was convicted of causing Dustin’s sexual organ to have contact
and penetrate his mouth, which is a different question.

      Because appellant did not answer these questions, no evidence was introduced
after counsel’s Rule 403 objection. Accordingly, any error in overruling the
objection is harmless. See Tex. R. App. P. 44.1(a)(1); Grice, 558 S.W.3d at 329.

      The second objection appellant refers to was made after the State questioned
appellant about a book he had published in the past two years.



                                          14
      [The State] And that was a book that had graphic detail about killing
      fellow inmates, right?
      [Defense Counsel] Objection, relevance and unfairly prejudicial.

After the trial court overruled the objection, appellant testified as follows:

             That particular story, the Making of a Murderous Mind is a
      fictional story. It is a story that I was able to explain how prison can
      cause a man who would never before think of harming an individual --
      you could be pushed to a point of breaking where people push you and
      people step on you and people spit in your face. Yes, you got a person
      in prison can be drove to taking – somebody can make you consider
      murdering them. But it was a fictional story. So, it had nothing to do
      with persons or places in my own personal life. It was just a fictional
      story.
Appellant contends this evidence was prejudicial because it suggested appellant
“occupied his time thinking of . . . murdering individuals.”

      The record reflects that appellant’s counsel questioned Turner about the book.
When asked if there was a moral at the end of the story, Turner stated, “I think it was
something just to the effect of that it wasn’t a good thing to slit another inmate’s
throat with a homemade razor blade knife.” Accordingly, any error by the trial court
in allowing appellant to testify that the character in his book considered murdering
people is harmless. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907
(Tex. 2004) (error is deemed harmless and is waived if same or similar evidence is
introduced elsewhere without objection); see also State v. Cent. Expressway Sign
Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (any error in admission of evidence is
likely harmless if it is cumulative of other evidence); In re Commitment of Brown,
No. 05-16-01178-CV, 2018 WL 947904, at *7 (Tex. App.—Dallas Feb. 20, 2018,
no pet.) (mem. op.).

      For the reasons set forth above, we conclude the trial court’s rulings did not
probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a);

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Grice, 558 S.W.3d at 329. Any error in those rulings is therefore not reversible.
Appellant’s third issue is overruled.

                                    CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s judgment
and order of civil commitment.




                                              /s/   Margaret “Meg” Poissant
                                                    Justice


Panel consists of Justices Christopher, Hassan and Poissant.




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