Affirmed and Opinion filed August 13 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00043

- CV

IN RE THE COMMITMENT OF K.H.
On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 933 08

- CV

OPINION Following a jury tria l, the trial court signed a final judgment ordering appellant ’ s civil commitment under Chapter 841 of the Health a nd Safety Code. Appellant challenges the trial court ’ s judgment in thre e issues, contending that the court erred by (1 ) directing a verdi ct i n the State ’ s favor that appellant was a repeat sexually violent offender ; (2) excluding evidence of the underlying facts for one of appellant ’ s convictions; and (3) refusing to submit a verdict f orm authorizing a verdict in ap pellan t ’ s favor by a 10

- 2 vot e. We affirm.2 I. D IRECTED V ER D ICT In his first issue, appellant contends that the trial court erred by granting the St ate ’ s directed verdict that appel lant was a “ repeat sexually violent offender ” under Chapter 841 based on the t ria l c ourt ’ s conclusion t hat appellant ’ s out

- of

- state convictions were “ substantially simil ar ” to a Texas “ sexually violent offense

. ”
A. S tandard of Review and General Legal Principles Under Chapter 841, i f a fact finder determines that a pers on is a “ s exually viol ent predator, ” the judg e shall commit the person for treatment and supervision until the person is no longer likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code § 841.0 81(a). A person is a “ sexually violent
p redator ” if the person (1) is a “ re peat sexually violent offender ” and (2) suffers from a “ behavior al abnormality ” that makes the person li kely to engage in a predatory act of sexual violence. Id. § 841.003(a). A person is a “ repeat sexually vio lent offen der ” if the person has been

con vict ed of more than one “ sexually violent offense ” and a se ntence has been imposed for at least one of the offenses

. See i d. § 841.003( b). A “ sexually violent offense ” includes certain listed offenses in Texas

— inc luding sex ual assault and ind ecency with a ch ild by contact

— and any offense under the law of another state that con tain s “ elements substantially similar to the elements ” o f a listed Texas offense

. See id. § 841 .002(8)(A), (G) ; see also Tex. Penal Code § § 21.11(a)(1 ) , 22.011.

A trial court may gr ant a partial directed verdict that a person is a repe at sexually violent offender if there is no probative evidence raising a fact issue to the contrary. In re C ommitment of Harris , 541 S.W.3d 322, 330 (Tex. App.

— Houston [14th Dist.] 2 017, no pet.).3

B. Test for Substantial Similarity Although commitment proceedings are civil in nature, to determine whether

a non

- Texas offense contain s “ elements substantially similar to the elements ” of a listed Texas offens e, Texas appellate courts have a pplied the tes ts us ed b y the Court of Criminal Appeals for determining whether a non

- Texas offense may be used for punishment enhancement

. See In re Commitment of Ratliff , No. 05

- 16

- 01425

- CV , 2018 WL 3829264, at * 3 (Tex. App.

— Dallas Aug. 13, 2 018, no pet. ) (mem. o p.); In re Com mitment of Williams , No. 02

- 17

- 00133

- CV , 2018 WL 771962, at *3 (Tex. App.

— Fort Worth Feb. 8, 2018, no pet.) (mem. op.) ; In re Commitment of Cleaveland , No. 09

- 12

- 00428

- CV , 2014 WL 4364263, at *4 (Tex. App.

— Beaumont Sep t. 4, 2 014, pet . denied) (mem. op. )

. Last year, the Court of Criminal Appeals altered the test for determining whether offenses are “ substantially similar ” for purposes of enhancement

. See Fisk v. State , 574 S.W.3d 917, 924

– 25 (Tex. Crim. App. 2019 ) (overr ulin g in par t Anderson v. State , 39 4 S.W.3d 531 (Tex. Crim. App. 2013), and Prudholm v. State , 333 S.W.3d 590 (Tex. Crim. App. 2011)). The court held that offenses are sub stantially similar if there is a “ high degree of like ness ” between the element s of b oth offenses

. Id. at 923. Sub stan tial similarity does not require that a person guilty of a crime under a foreign law would also be guilty under a Texas law. Id. at 922

– 23. Appellant contends that this court should eschew Fisk and consider addit ional fact ors disc us sed in Anderson a nd P rudholm , including the “ interests protected by the offenses and their relative seriousness. ” See id. at 923. Fisk expressly rejected consideration of those factors. See id. a t 923

– 25

. This court has appl ied Fi sk i n the context of determining whethe r a person was required to register as a sex offender based on a conviction for an out

- of

- state offense t hat4

contained elements substantially similar to an enumerated Texas offense. See Tex. Dep ’t of Pub. Safet

y v. F owle , 581 S.W.3d 417 , 418

– 19 (Tex. App.

— Hou ston [14th Dist.] 2019, no pet.). The language in all three statutes is similar. See Tex. Health & Safety Code § 841.002( 8 ) (sexually violent offense for civil commitme nt is “ an offense under the law of another state . . . that contains elements subs tant ially similar to the elements of an offense ” in Texas); Tex. Penal Code § 12.42 (c) ( 2)(B)(v) ( punishment enhancement for prior conviction of an offense

“ under the laws of another state containing elements that are substantially similar to the elements o f an offense ” in Texas); Tex. Code Crim

. Proc. A rt. 62 .001(5)(H) (reportable conviction for sex offender registration includes a conviction for “ a violation of the laws of another state . . . for or based on the violation of an offense containing elements that are substantially similar to the elements of an offense ” in Texas)

. When construing a statutory word or phrase, we may consider the meanin g assigned to the language els e w h ere in another act of similar nature, and we may give the same meanin g to l ang ua ge t hat has bee n used in similar statutes unless something indicates that a different meaning was intended. See Robertson v. Odom , 296 S. W.3d 1 51, 157 (Tex. App.

— Houston [14th Dist.] 2009 , no pet.)

. Although the commitment, s ex

- offender regist ration , and pun ish ment enh ancement
statutes serve different functions, the provision s regarding substan tial similarity of offenses serve a similar goal of prov iding comit y to non

- Texas convictions for sexual offenses

. Thus, we see no reason to devia te from th e inter pret ation of th e Court of Criminal Appe als and this court in similar contexts. We will apply the test announced by the high court in Fisk and applied by this court in Fowle

.5

C. Analysis Appellant does not dispute that before he was convicted in Texas of se xu ally

as saulting a child

— a sexually violent offense

— he wa s convicted in Oregon of three counts of sexual abus e in the third degree under a former version of Section 163.415 of the Oregon Revised Statutes. Appellant does not d ispute tha t if one of those Ore g on off

enses is substantially similar to the Texas offense of indecency with a child by contact

— a sexually violent offense

— then the trial court could direct a verdict that appellant was a “ repeat sexually violent offender ” as a matter of law. A ppellant co n tends that none of the Oreg on convictions was for a n offense substantially similar to indecency with a child by co ntact. We begin by c omparing the relevant statutes : Oregon Law (1) A pers on commits the cr ime of sexual abuse in the third d egree if the pe rs o n subjects another person to sexual cont act and : (a) The victim does not con sent to the sexual cont ac t; or (b) Th e victim is incapabl e of consent by reason of bein g under 18 years of age

. Act of July 18, 1995, 68th Leg., R.S., ch. 671, § 9, 1995 Or . La ws ch. 671 (Westlaw) (codified as amended at Or. Rev. Stat. § 163.415).

“ Sexual Contact ” means any touchi ng of the se xual or other intima te parts of
a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of a r ousing or gratifying the sexual desire of either Texas Law (a) A person commits an offense if, with a chil d y ounger than 17 years of age, whether the child is of th e same or opposite sex and regardless of whethe r the person knows the age of th e child at the time of the offense, the person: (1) e ngages in sexual contact with the child or causes t he child to eng ag e in sexual contact[. ]

. . . (c) In this section, “ sexual contact ” means the following acts, if commi t ted with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person , including touching through cloth ing, of the anu s, breast or any part of the genitals of a child; or (2) any touching of any part of the6

party. Act of Aug . 16, 1999, 70th Leg., R.S., ch. 949 , § 1, 1 9 99 Or. Laws ch. 949 ( We stlaw) (codified as amended at Or. Rev. Stat. § 163.3 05( 6)). 1 bo dy of a child , including touching through clo thing, with the an us, breast, or any part of the genitals of a person. Tex. Penal Code § 21.11.

Here, t he charging in st r

ument admitted as an ex hibit alleged that , for one of the three counts under which appellant was convi cted , appell ant knowingly subjec ted A.B., “ a person under the age of 1 8 ye ars, to sexual contact by touching her gen italia, a sexual or intimate part o f [ A.B. ] ” A ppellant testified at trial that A.B. was his girlfriend when she was fo urteen years old and he was eight een years

o ld, and t hat he rubbed his hands on A.B. ’ s vagina. Appellant contends that this court should not consider the spe cific conduct

a pp e llant committed under the Oregon statutes , citing And erson , 394 S.W.3d at 536. Although the Anderson court noted generally that the s ubstantial

- similarity
test does not foc us on “ the specific conduct that was alleged, ” the court acknowle dged that “ some ti m es, the specific condu ct, as well as the elements, must be considered. ” Id. at 536 n.21. The Fisk co urt distingu ished Anderson on th e ground that there was no ev idence in the Anderson record to prove the elements of the prior conviction

. Fisk , 574 S. W. 3 d at 920 (considering testimony and documentary evidence to determine substantial similar ity ). When, a s here, the State has proven the nature of the previous conviction, we do not analyze the entire t y of the other state ’ s statu tory scheme for sub stantia l

1 Under Oreg on case law, “ sexual or other in t imate parts ” inc lude s genitalia , b reast s, and “whatever anatomica l areas the trier of fa ct deems ‘intimate ’ in the particular cases which arise. ” State v. Woodley , 760 P.2d 884, 88 6 ( Or. 1988) (quotation omitted)

. To be “intimate ” a bo dy pa rt “must be su b

jectivel y int ima te to the perso n t ouched, and either known by the accused to be so or to be an area of the anatomy that would be objectively known to be int imate by any reasonable person. ” Id. at 887.7

s imilarity. Id. at 922

. “ That kind of analysis is necessary only if the record fails to prove the nat ure of t he p revious conviction. ” Id. (concluding that that the non

Texas statute ’ s criminalization of bestiality and sodomy between con senting a dults

w a s “ irrelevant ” b ecause the record show ed that the defendant ’ s prior conviction was for the sodomy of a child under the age of sixteen , which was substantially similar to Texas ’ s offense of sexual assault ). Thus, we reject appellant ’ s
cont ention that the o f

fenses were not substantially similar because the Orego n
stat ut e also criminalizes non

- consensual sex ual conta ct with adul t victims , or becaus e the Oregon courts have applied a broad definition of “ intimate parts ” compared to the specific body parts ide n t ifi ed in Section 21.11 of the Penal Code (i.e. , anus, breast, or genital s). Moreover, the one

- year age diffe rence between the Oregon statute ( eighteen) and Texas statute (seventeen), does not defeat substantial similarity in this case

. See id. at 923.
C o n sidering the te sti mony and documentary evidence in this case , one of appellant ’ s Oregon convictions for sexual abuse requ ired pro of tha t appellant
touc hed the genitals of a child with the intent to arouse or gratify the sexual desire of any person

. The e l ements of this off ense, as alleged and proven in this record, display a high degree of like ness to the elements of the Texas offense of indecency with a child by contact

. Thus, the offenses are subst antially similar for purposes of Ch apter 841

. Cf. Cas t le v. State , 402 S.W.3d 895, 90 2

– 0 3, 906

– 08 (Tex. App.

— Houston [14th Dist.] 2013, no pet.) (reasoning that Louisiana ’ s sexual battery statute, which cr iminalized non

- conse nsual t ouching of the genitals of an adult as well as “ consensual ” touch ing of the g e nitals of a chil d under the age of fifteen, displayed a high degree of likeness to Texas ’ s indecency with a child statu te; but reversing the judgment b ecause there was no e vidence in the record that the allegations underlying the Louisi ana conviction invo l ved a child unde r the age of8

fi fte en, so the court could not conclude that the offense for which the defendant

was conv icted contained elements substan tially similar to in decency with a child)

. Appellant has not identified any probative evidence rais ing a fact issue on wh ether he is a “ rep eat sexually violent offender ” under Chapter 841. Accordingly, the trial court did n ot err by directing a verdict fo r the State on this issue. Appellant ’ s fi rst issue is overruled.
II. E XCLUSION OF E VIDENC E
In his second iss u e, appellant con tend s that the tri al court erred by excluding his cross

- examination of the State ’ s forensic psychologis t concerning “ peripheral facts ” underlying his Texa s convic tion for sexual assaul t of a fourteen

- year

- old girl. Appe llant sought to att a ck the psycholog ist ’ s opinion t hat appellant had a behavioral abnormality that made appellant li kely to en gage in a predatory act of sexual violence

. Appellant made an of fer of proof through the psychologist to establish that (1) the c omplainant had brou g ht appellant alc ohol on at leas t o ne occasion ; and (2) a Brazoria County a ssistant district attorney r ecor ded in their
notes that the complainant “ looked much older than s he was ” and “ was very well

developed

. ” The trial court sustained the State ’ s object i on that the evid ence would misl ead the jury, confuse them, and be an imper missible collateral attack on th e judgment of conviction. We assume without deciding that the tri al court erred. See In re Commitment of Dunsmore , 562 S.W.3d 732 , 739

– 40, 742

– 43 (T e x. Ap p.

— Houston [1st Dist.] 201 8, no pet.) (trial court abused its discret ion by preventing the defendant from adducing facts underlying the conviction to challenge the

ex pert ’ s opi nion that the defendant suffered from a behav ioral ab no rmality that9

made h i m likely to enga ge in a predato ry act of sexual violence). W e will evaluate the alleged error for harm.
A. Legal Pri nciple s for Harmless Error
“The exclusion of evidence is reversib le error if the complaining party shows that the trial co urt committed error that probably ca used the rendit ion of an improper judgment.” Waffle House, Inc. v. Williams , 313 S.W.3d 796, 812 (Tex. 2010); see also Tex. R. App. P. 44.1(a). In making this de termination, we review the entire record. State v. Cent. Expressway Sign As s ocs. , 302 S.W.3d 866, 870 (Tex. 20 09). The role that the excluded evidence played in the context of the trial is import ant. Id. If the excluded evidence was crucial to a key is sue, the error is likely harmful. Id. But if the eviden ce was cumulative o r the rest of the evidence
at tr ial was so one

- sided that the error likely made no difference in the judgment, then the e rror is likely harmless. Id.
B. The Record Evidence Through t he State ’ s expert, a forensic psychologi st, t he jury hear d evidence of appel l ant ’ s long histo ry of sexual co ndu ct with young girls. The psychologist testified that he reviewed records indica ting t hat a thirteen

- year

- old appellant touched a six

- year

- old gi rl ’ s bare vaginal area with his hand

. The girl tried to stop appellant, and he said, “ I don ’ t have to, ” and pe rsisted. A police report in dicated that appellant confessed . In an Oregon juve nile c ourt, appellant admitted to an allegation of sexual harassm ent; the court dismissed an allegation of sex ual abuse

. Although appellant t old the forensic psychologist t hat “ it didn ’ t happen, ” appellant told another doctor that the touching w as acciden tal wh ile appellant roughhoused with the girl. A ppellant told th e doctor that appellant want ed to have sex with the girl

.10

Appellant was plac e d on juvenile p r obation

. He vi ola ted probation by missing sex off

ender treatment appointments, being dis honest wi th sta ff, and thre atening fa mily members . His probation was exte nded until he was eighteen years old. During his se x off ender treatment, he admitted to fond ling ten other thi rteen

- and fourteen

- year

- old girls. The psychologist testified , “ [O]n multiple occasi ons with each of them, him putting his ha nds on them, on th eir buttocks or on their breasts and doing so without the ir permission or th e m agreeing. ” Ap pellant later t old the psychologist that he did not do it and that he was coached into conf essin g

. Appellant ’ s juvenile probation was terminated when he tur ned eighteen years old ; he never completed the sex offend er trea tment. With in a ye a r, appellant ple aded guilty to the three counts of sexual abuse discussed a bove. The three counts alleged that a ppellant touched the breast s and buttocks of o ne girl (C.E. )

a nd the genitalia of A.B

. Appellant was eightee n years old at the time ; b oth gir l s were fourteen years old

. As par t of appellant ’ s plea, the court dismissed four other counts of sexual abuse, which alleged that appellant touched the genit a lia of A.B., the buttocks and breasts of another fifteen

- year

- old girl, and t he buttocks of
anot h er fourteen

- year

- old girl. The ps ychologist reviewed records indicating that that two additional girls alleged sexual offenses ag ainst appellant , but no charg e s were filed

. Appellant testified that A.B. was his girlfriend at the time, and he admitted
to r ubbing her vagin a. Although th e p sychologist reviewed documents in which appellant admitt ed to penetrating A.B. ’ s vagina with his finger and having A.B.
tou ch his penis , a ppellant denie d the conduct to the psychologist. The psychologi st reviewed records indicating that appellant touch ed C.E. ’ s breast under her bra an d her buttocks about forty times. He told her, “ I ’ ll do what I want. ” When appellant11

wa s inte rviewed in th e pr ison system in Texas, he denied touching C.E. sexually but a lso said that they e ngaged in horsep lay and that “ h e l iked her and that he was pushing things to see how far it would go sexually. ” For example, appellant would tell C.E. that h e liked her a nd he would gauge her reaction; he told C.E. that he wouldn ’ t min d being with her se x ually.
For the s exual abuse con vic tions, appellant was placed on five years ’ probation. While on probation in Oregon, appellant was sanctioned for mu lt iple

v iolations o f congregating with minors . He was found with a sixteen

- year

- old

r unaway . He was fou n d to be b aby

- sit ting minors and li ving with minors

. There were allegations that he had made children smoke marijuana and threatened to kill them if the y woul d n ot do it. Ultimately, he failed to appear for court , and a warrant was iss ued for his arrest. He was never ar rested, however , b ecause he absconded from Oregon and moved to T exas

. Appellant continued to violate the law in Texas. He was a rr ested for public intoxica tion and convicted of felony and misdemeanor thefts

. W hen appell ant was twenty

- five years old , he se xually assaulte d a fourteen

- year

- old girl (L.B

. , no relation to A.B. ) in Brazoria County

. At the tim e, he had been dating L.B. ’ s forty

eigh t

- year

- old aunt

. The psychologist reviewed records indicating that appellant ha d L.B. perform oral sex o n him, he p erformed oral s ex on her, and he “ had vaginal intercour se with her, including reaching orgasm while inside her vagina. ” He pleade d guil ty and was placed o n deferred adjudication probation

. Appellant ’ s probation was rev oked after he faile d to do his commu nity service, p ay fees, and complete a sex offender evaluation ; and he was charge d with possession of a f irear m by a felon and fam ily

- vi olence assault

. Ap pellant was convicted of the family

- violence assault. At trial, h e admitted to sque e zing his girlfri end ’s neck with hi s hands. Appellant ’ s guilt was adjudicated for the sexual assault , and he12

was sen tenced to six years ’ confinement in prison . He was in prison at the time of this commitment trial. Appellant had told t he psychologist tha t “ nothing sexual happened ” with L. B. At trial, appellant denied sexually assaulting L.B. He felt like he di d not do

“ anything wrong ” to L.B. The psy chologist testi fied t h at appellant had not taken responsibility for any of the sexual offenses for which h e had been convi cted, except fo r a dmitting to at least some sexual contact with A.B. S ome of appellant ’s conduct would be classified as “sexually deviant ” because not onl y did appellant offend against children who could not legally con sent, but some of a p pellant ’s sexual acts were perf orm ed without the children ’s permission.
Based in part on appellant ’ s criminal history and appell ant ’ s failure to take

re sponsibility for mo s t of his sexual offenses, t he p sychologist diag nosed appellant

w ith antisocial pers o nality disorder at the level of ps ychopathic personality. The psychologist explained, “ [M] ost people would say that he is a psychopath. ” The psycholog ist acknowledged th a t when appellant was eighte en ye ars old, other psychologists had compared him to an age equivalence of about fiftee n. 2 The psychologist opined that appellant ’ s emotional and volitional capacity have been affected by a behavioral ab norm ality. The psychol o gist testified that appellant had serious difficulties controlli ng h is behav ior bec a use o f his perso nality.

T he p syc hologist noted that appellant had an increased risk for reoffending sexually

. One of the strongest indicators for rec idivism is whe n a p erson like appellant is caught, convicted, and punished, and then reoffends.

2 Nothing in the record indicates appellant ’ s “ age eq u ivalence ” at the time of trial or when he sexually assaulted L.B.13

C. Analy s is Although the psychologist ’ s opi nion of appellant ’ s behavioral abnormality

was a key issue at trial, t he excluded evidence was not “ crucial ” to a key issue. Nothing at trial suggested that the psychologist ’ s opinion o f appellant ’ s be havioral

a b normalit y would change if L.B. looked an d a ct ed older than fourteen. Appellant had a lo ng history of sexual conduct with young girl s, some of it wi thout the g irls ’ permission. T h e psyc hologist ’ s opinion of appellant ’ s behavioral abnormality wa s based not only on the fact that ap pellant committ ed multiple sexual offenses against childre n , but also that appellant failed to take responsibility for his conduct

. With L .B., for example , appellant den ied doing anything sexual , despite his conviction for sexually assaul t ing her. 3 The ps ychologist reli ed on an abundance of information to form t he opinion that appellant suffered from a behavi oral abnormality, including records detail ing mul tiple convictions and allegations involving se xual con duct with y oung girls, appella n t ’ s deposition, another doctor ’ s e valuation of appellant, and the psycholo gist ’ s own evalua tion of appellant. See In re Commitment of Dunsmore , 562 S.W.3d 732, 739, 743 ( Tex. Ap p.

— Houston [1st Dist.] 2018, no pet.) (harmless error from the exclusion of t h e defendant ’ s te stimony that he on ly pleaded guilt y because he had been “ roughe d up ” by police and that one of the victims h ad made a false allegation about finding pornog raphy on his computer; noting the substantial evidence supporting the psychologist ’ s opinion that the defendant suff

ere d from a behavioral abnormality).

3 Moreover, appellant ’ s denial of sexual conduct with L. B. was inconsistent with the defensive theory that appella nt sought to further with evi dence that L.B. was “ well d eveloped ”

— that appe l lant had sex wit h L.B. because L.B

. appeared and acted like she was of legal age.14

Considering the entire record, t he e xclusion of evidence that one of appellant ’ s victims acted and appe ared older than her age did not probably cause the rendition of a n improper judgment

. The error , if any, was harmle ss. See id. Appellant ’ s second issue is overruled.

III. J URY C HARGE
In his th ird issue, appellant contends that the trial court err ed by overruling his r equest to instruct the jury that it c ould find appellant was not a sexually violent predator by a vote of 1 0

- 2 and by not providing such a verdict form. The Supre me Court of Texas resolved this issue while th is appeal was pending. Although a unanimous v erdict is required to find that a per son is a sexually v iolent predator, on l y ten votes are necessary to re ach a verdict decl ining to find that a person is a sexual ly violent predator. In re Commitment of Jones , No. 1 9

- 0260 , 2020 WL 3393468, at *3 (Tex. J une 19, 2020) (per curiam). Thus, t h e trial court erred

. See id.
However, because the jury unanimous ly fo und that appellant was a sexually violent predator, the e rror did not probably cause the rendition of an improper judgment. Se e id. at *5. T he erro r was harmless. See id. Appellant ’ s third issue is over ruled

. IV. C ONCLUSION
A l l of appellant ’ s issues are ove rru led

. The trial court ’ s judgment is affirmed.

/s/ K en Wise Justice

Pan el con sists o f Jus ti ces Ch ristopher, Wise, and Zimmerer

.