In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00407-CV
                            ____________________


       IN RE COMMITMENT OF JOHN FRANKLIN WILLIAMS JR.

_______________________________________________________           ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-02-01500-CV
________________________________________________________           _____________

                           MEMORANDUM OPINION

      John Franklin Williams Jr. appeals from a judgment on a jury verdict that

resulted in his civil commitment as a sexually violent predator. See Tex. Health &

Safety Code Ann. § 841.081(a) (West Supp. 2015). Williams challenges the legal

and factual sufficiency of the evidence in three issues. We overrule the issues and

affirm the trial court’s judgment.

                                Standard of Review

      Williams contends the evidence is legally and factually insufficient to

support the jury’s unanimous verdict, which found that Williams is a sexually

                                        1
violent predator because: (1) Williams “has no diagnosable mental disorders,

mental conditions, or predispositions to commit predatory acts of sexual

violence[;]” (2) the State did not provide sufficient facts to prove beyond a

reasonable doubt that he is likely to reoffend; and (3) the State failed to prove that

Williams committed his crimes for the primary purpose of victimization.

      Under a legal sufficiency review, we assess all the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could find,

beyond a reasonable doubt, the elements required for civil commitment as a

sexually violent predator. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex.

App.—Beaumont 2002, pet. denied). As the factfinder, the jury has the

responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and

draw reasonable inferences from basic facts to ultimate facts. Id. at 887. Under a

factual sufficiency review in a civil commitment proceeding, we weigh 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.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied).

      In a civil commitment proceeding under Chapter 841 of the Texas Health

and Safety Code, the State must prove, beyond a reasonable doubt, that a person is

                                          2
a sexually violent predator. Tex. Health & Safety Code Ann. § 841.062(a) (West

2010). A person is a “sexually violent predator” if he is a repeat sexually violent

offender1 and he 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(a) (West Supp. 2015). A “[b]ehavioral 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 condition which affects either emotional capacity or volitional

capacity to the extent a person is predisposed to threaten the health and safety of

others with acts of sexual violence is an abnormality which causes serious

difficulty in behavior control.” In re Commitment of Almaguer, 117 S.W.3d 500,

506 (Tex. App.—Beaumont 2003, pet. denied).

                            Summary of the Evidence

      Through responses to requests for admissions and penitentiary packets that

were admitted into evidence, the jury learned that Williams had been convicted

three times for indecency with a child. The indictments alleged Williams

committed these offenses in 1982, 2000, and 2003. Williams was out on bond for
      1
         Williams does not challenge his status as a repeat sexually violent offender
in his appellate brief.
                                          3
the second offense when he offended against his third victim. Two of his victims

were twelve years old when he molested them and one was fifteen. Williams was

thirty-four years old when he committed the first offense, fifty-two when he

committed the second offense, and fifty-five when he committed the third offense.

As to one of the offenses, Williams judicially admitted that he engaged in sexual

contact with the child to arouse and gratify his sexual desire. Additionally,

Williams admitted that he had never received any sex offender treatment until he

started a four-month-long sex offender education program a few weeks before his

trial.

         The State’s expert, Dr. David Self, a psychiatrist who evaluated Williams,

testified that based upon his education, training, experience, and the methodology

he employed in the case, it was his expert opinion that Williams suffers from a

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

violence. 2 Dr. Self explained that when he evaluates a person for civil commitment

as a sexually violent predator, he performs a psychiatric screening in which he

looks for the presence or absence of major psychiatric illness. In this case, Dr. Self

considered a prior evaluation performed by Dr. Charles Woodrick, a psychologist,

as well as the facts and data contained in court records, police reports, victim
         2
             Neither Dr. Self’s qualifications nor his methodology are challenged in this
appeal.
                                              4
statements, and depositions. Dr. Self also conducted a personal interview of

Williams.

      Dr. Self testified that the facts and details of a person’s sexual offenses are

important in an evaluation. He stated that a person’s non-sexual criminal history

also provides insight into a person’s criminality. In this instance, Williams had five

intoxication offenses and several arrests for fighting. Williams claimed he was

intoxicated when he committed his sexual offenses. According to Dr. Self,

Williams’s biggest risk factor was his prior sexual criminal history, which included

two victims that would be considered prepubescent. In Dr. Self’s opinion,

Williams meets the criteria for pedophilic disorder, which means for over a period

of at least six months a person has recurrent, intensely sexually-arousing fantasies,

urges, or behaviors involving sexual activity with prepubescent children or

children generally thirteen or younger. He testified that Williams’s disorder was of

a non-exclusive type because Williams also had sexual relationships with adult

females. According to Dr. Self, for purposes of diagnosing pedophilic disorder, the

victim-age cut-off of age thirteen has less to do with developing secondary sex

characteristics and more to do with brain development.

      Dr. Self also diagnosed Williams with personality disorder not-otherwise-

specified with antisocial traits. Dr. Self expressed some reservation about this

                                          5
diagnosis, because Williams did not show a conduct disorder in his youth, and he

had a spotless prison disciplinary record. Williams demonstrated an attitude

tolerant of sexual assault, which means he fends off the shame typically associated

with sexual assault. As an example, Dr. Self referred to Williams’s trial testimony

that he was intoxicated and fell and his hand went into the girl’s pants. Alcohol

abuse was a major recurring problem for Williams. According to Dr. Self, alcohol

is a disinhibitor that negatively affects a person who is already impulsive. Dr. Self

also found it significant that Williams committed a sexual offense when he was out

on bond for a previous sexual offense because it indicated an inability to control

his behavior. Additionally, Dr. Self noted that Williams offended against the

children at a time when he reported having daily sexual relations with his wife,

which indicated a high sex drive and a lack of control.

      Actuarial instruments applied by Dr. Woodrick and considered by Dr. Self in

his evaluation gave Williams a score of 1, at low risk to reoffend. Dr. Self noted

that Dr. Woodrick found Williams has pedophilic disorder and mixed personality

disorder, as well as a behavioral abnormality. Williams’s protective factors include

his age, sixty-seven, but Dr. Self noted that Williams was committing sexual

offenses against children at the age of fifty-six.




                                           6
      Dr. Marisa Mauro, a psychologist, testified as an expert on behalf of

Williams. She used an actuarial approach that she adjusted for clinical risk factors

based on research. In her opinion, Williams does not have a behavioral

abnormality. Dr. Mauro stated that pedophilic disorder, nonexclusive type, was an

inappropriate diagnosis for Williams in this case because the victim of his most

recent offense might not have been prepubescent, and the offending behavior

incidents occurred nearly twenty years apart. In her opinion, Williams does not

have pedophilia, but he acted indiscriminately. She found Williams has alcohol use

disorder and suggested that that explains his history of intoxication offenses and

probably functioned as a disinhibitor with his sex offenses. In Mauro’s opinion,

Williams’s risk would not be elevated during times he is not using alcohol. Dr.

Mauro considered Williams’s history of three marriages in which he maintained

sexual relationships with adult females to be a protective factor, although stress

from his wives’ infidelity may have been a destabilizer for Williams. Dr. Mauro

noted that Williams tended to shift blame onto his victims, but sex offender

recidivism research found no statistically significant relationship between denial

and sexual recidivism. Dr. Mauro saw no indication that Williams was unable to

control his sexual behavior.




                                         7
      Dr. Mauro disagreed with Dr. Self’s diagnosis of personality disorder not

otherwise specified with antisocial traits because there was no evidence of the

traits of that disorder other than Williams’s sex offending. She contends that a

person with that disorder would not have Williams’s long work history and would

tend to experience disciplinary problems in prison. In Dr. Mauro’s opinion,

Williams’s history of fighting was likely attributable to his alcohol use disorder.

      Regarding Williams’s statistical risk of reoffending, Dr. Mauro stated that

she considered that he offended late in life, but she also considered that thirteen or

fourteen years had passed since his last offense. She agreed that persistence after

punishment is a risk factor, but statistically it is a small factor. The presence of a

non-relative victim was a risk factor, the lack of male and stranger victims

decreased Williams’s risk. Ultimately, Dr. Mauro gave Williams a score of zero,

which using normative data, provided an expected five-year recidivism rate of 2.8

percent.

                             Arguments of the Parties

      Williams argues he has no diagnosable mental disorders, mental conditions,

or predispositions to commit predatory acts of sexual violence. He contends the

facts surrounding Dr. Self’s diagnoses are insufficient to support pedophilic and

personality disorders. He argues that two separate instances of child molestation

                                          8
occurring twenty years apart does not establish that he had recurring urges or

fantasies over a six month timeframe. Williams argues that Dr. Self’s mental

disorder diagnoses supplied the only evidence that Williams is predisposed to

sexual violence, and without a sufficient basis for those diagnoses, Dr. Self’s

opinion provides no evidence that Williams is a sexually violent predator. Also,

Williams argues the State provided insufficient facts to clinically and accurately

show that he has a pedophilic disorder or a personality disorder and that his

previous criminal behavior could instead be attributable to alcohol abuse and anger

issues.

          Williams argues that if we find sufficient evidence that he has pedophilic

and personality disorders, the evidence is still insufficient to prove beyond a

reasonable doubt that he is likely to reoffend. He contends the risk factors

identified by Dr. Self are either not risk factors at all or they have been determined

through the application of actuarial tests to predict a low risk of reoffending. He

argues the State did not provide sufficient facts to prove that he is likely to

reoffend.

      Williams also argues the State failed to prove that he committed the sexual

offenses for the primary purpose of victimization. He notes the State read into the

record Williams’s admission that he engaged in sexual contact with the intent to

                                          9
arouse or gratify his sexual desire. From this, he contends the State admitted his

primary purpose in committing his past crimes was to gratify his sexual desires and

not to victimize the children. He argues the State did not provide factually

sufficient evidence that he committed his crimes for the primary purpose of

victimization.

      The State responds that a diagnosis is not required to find that someone has a

behavioral abnormality, but at any rate, Dr. Self’s evaluation of Williams’s mental

condition is supported by the record. The State argues the jury could reject Dr.

Mauro’s opinion that Williams does not have pedophilic or personality disorders

and her opinion that Williams is not likely to reoffend. Also, the State argues the

evidence need not show that the person’s past offenses were committed for the

primary purpose of victimization. The State argues that Dr. Self’s opinion that

Williams suffers from a behavioral abnormality that makes him likely to engage in

a sexually violent offense implicitly includes that the act would be for the primary

purpose of victimization. The State concludes the jury heard the conflicting

opinions of the experts and each expert’s rationale and support for that opinion,

then accepted one and rejected the other.




                                        10
                                Sufficient Evidence

      “A medical diagnosis of a person’s mental health may certainly inform an

assessment of whether he has an SVP’s behavioral abnormality, but the principal

issue in a commitment proceeding is not a person’s mental health but whether he is

predisposed to sexually violent conduct.” In re Commitment of Bohannan, 388
S.W.3d 296, 306 (Tex. 2012). Therefore, “[a] diagnosis of a mental disorder is not

a prerequisite for civil commitment.” In re Commitment of Pickens, No. 09-14-

00391-CV, 2016 WL 821426, at *2 (Tex. App.—Beaumont Mar. 3, 2016, no pet.

h.) (mem. op.). Where the expert witness provides a basis for his or her opinion

and that basis is supported by the record, the jury resolves any conflicts or

contradictions with respect to the expert’s testimony. In re Commitment of

Rushing, No. 09-11-00268-CV, 2012 WL 4466421, at *5 (Tex. App.—Beaumont

Sept. 27, 2012, no pet.) (mem. op.).

      In this case, the diagnosis of mental disorders informed the experts’ opinions

regarding whether Williams has a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. In applying the criteria for a diagnosis

of personality disorder, Dr. Self gave heavier consideration to Williams’s long

history of criminality over his good prison disciplinary history, while Dr. Mauro

attributed Williams’s past criminal behavior exclusively to alcohol use disorder

                                         11
and relied on his prison record to conclude that Williams can control his behavior.

Additionally, Dr. Self explained why the presence or absence of secondary sex

characteristics in child victims is not determinative of whether the perpetrator has a

pedophilic disorder. The jury could accept Dr. Self’s position that the diagnostic

criteria for pedophilic disorder was not dependent upon the victims’ physiologic

staging because it is secondary to brain development, and reject Dr. Mauro’s

suggestion that it is appropriate to disregard the age of Williams’s third victim

when applying the diagnostic criteria for pedophilic disorder to Williams. The

basis for each expert’s application of the diagnostic criteria for the mental

disorders was provided to the jury, and the jury could determine what weight to

give each expert’s testimony. See id.

      The expert witnesses expressed conflicting opinions regarding the risk that

Williams would reoffend by committing a sexually violent offense after his release

from prison. Although they drew different conclusions from the same evidence,

each expert explained why particular information in those records supported his or

her reasoning. Dr. Mauro stated that actuarial instruments are considered but there

are older individuals who commit sexually violent acts late in life. Dr. Self

explained that Williams’s age substantially affected his score on actuarial

instruments; however, because Williams molested children well into his fifties, his

                                         12
age did not significantly reduce his risk. Neither expert attached a statistical

probability to whether a person is likely to reoffend. The basis for each expert’s

evaluation of the risk factors, the protective factors, and the scoring of the actuarial

instrument was provided to the jury, and the jury could determine what weight to

give each expert’s testimony. See id.

      “‘Primary purpose of victimization’ is not a specified element in section

841.003 [of the Texas Health and Safety Code].” In re Commitment of Simmons,

09-09-00478-CV, 2011 WL 2420832, at *1 n.1 (Tex. App.—Beaumont June 16,

2011, no pet.) (mem. op.). Nevertheless, Williams argues it is important for the

State to show that he acted with predatory intent so as to identify him as being

likely to engage in a predatory act of sexual violence. He argues such a showing

requires some proof that his past offenses were committed for the primary purpose

of victimization, and he suggests such a purpose was somehow disproved by

evidence that he engaged in sexual contact with the intent to gratify himself

sexually in the past. “The notion that an underage child cannot legally consent to

sex is of longstanding origin and derives from the common law.” In re B.W., 313
S.W.3d 818, 820 (Tex. 2010). When Williams intentionally engaged in sexual

contact with a child, he engaged in a sexually violent act and necessarily

victimized the child. See Tex. Health & Safety Code Ann. § 841.002(5), (8)

                                          13
(defining a predatory act as “an act directed toward individuals, including family

members, for the primary purpose of victimization” and including an offense under

section 21.11(a)(1) of the Texas Penal Code within the definition of a sexually

violent offense).

       Viewing the evidence in the light most favorable to the verdict, a rational

jury could have found, beyond a reasonable doubt, that Williams is a sexually

violent predator; thus, the evidence is legally sufficient. See Tex. Health & Safety

Code Ann. § 841.062(a); Mullens, 92 S.W.3d at 885, 887. Weighing all of the

evidence, the verdict does not reflect a risk of injustice that would compel ordering

a new trial. See Day, 342 S.W.3d at 213. We overrule issues one through three. We

affirm the trial court’s judgment and order of commitment.

      AFFIRMED.



                                              ________________________________
                                                     CHARLES KREGER
                                                            Justice

Submitted on June 23, 2015
Opinion Delivered April 21, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                         14